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EXHIBIT 10.3
INDEPENDENT CONTRACTOR AGREEMENT
This Independent Contractor Agreement (the "Agreement") is made and
entered into as of December 1, 1999, by and between NetStaff, Inc., having an
office at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ (the "Company"), and
Millennium 3 Design ("Independent Contractor").
The Company desires to retain Independent Contractor as an independent
contractor to perform certain services for the Company and Independent
Contractor is willing to perform such services, on terms set forth more fully
below.
In consideration of the mutual promises contained herein, the parties
agree as follows:
1. SERVICES AND COMPENSATION
(a) Independent Contractor agrees to perform corporate image design
and development services for the Company.
(b) As compensation for such services, the Company agrees to pay
Independent Contractor an aggregate fee of $90,000.00 per year,
by paying $7500 per month, at the beginning of each month, for
twelve (12) months, commencing December 1, 1999, upon
presentation of an invoice from Independent Contractor. In
addition, Independent Contractor shall be entitled to
reimbursement on a monthly basis of out-of-pocket expenses
incurred during the course of its performance of the aforesaid
services upon presentation of an itemized invoice for such
expenses.
2. CONFIDENTIALITY
(a) "Confidential Information" means any Company proprietary
information, technical data, trade secrets or know-how, including, but not
limited to, research, business, product and service plans, products, services,
customers, customer lists, markets, strategy, software, developments,
inventions, processes, formulas, technology, designs, drawings, engineering,
hardware configuration information, marketing, finances or other business
information disclosed by the Company either directly or indirectly in writing,
orally or by drawings or inspection of parts, offices, documents or equipment.
(b) Independent Contractor will not, during or subsequent to the term of
this Agreement, use Confidential Information for any purpose whatsoever other
than in the performance of the Services on behalf of the Company or disclose
Confidential Information to any third party.
(c) It is understood that said Confidential Information shall remain the
sole property of the Company.
(d) Independent Contractor further agrees to take all reasonable
precautions to prevent any unauthorized disclosure of such Confidential
Information including, but not limited to, having each employee of Independent
Contractor, if any, with access to any Confidential Information, execute a
nondisclosure agreement containing provisions in the Company's favor identical
to Sections 2, 3 and 5 of this Agreement.
(e) Confidential Information does not include information which (i) is
known to Independent Contractor at the time of disclosure to Independent
Contractor by the Company as evidenced by written records of Independent
Contractor, (ii) has become publicly known and made generally available through
no wrongful act of Independent Contractor, or (iii) has been rightfully received
by Independent Contractor from a third party who is authorized to make such
disclosure.
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(f) Without the Company's prior written approval, Independent Contractor
will not, directly or indirectly, disclose to anyone the existence of this
Agreement or the fact that Independent Contractor has this arrangement or
business relationship with the Company.
(g) Independent Contractor agrees that Independent Contractor will not,
during the term of this Agreement, improperly use or disclose any proprietary
information or trade secrets of any former or current employer or other person
or entity with which Independent Contractor has an agreement or duty to keep in
confidence information acquired by Independent Contractor, if any, and that
Independent Contractor will not bring onto the premises of the Company any
unpublished document or proprietary information belonging to such employer,
person or entity, unless consented to in writing by such employer, person or
entity. Independent Contractor will indemnify the Company and hold it harmless
from and against all claims, liabilities, damages and expenses, including
reasonable attorneys fees and costs of suit, arising out of or in connection
with any violation or claimed violation of a third party's rights resulting, in
whole or in part, from the Company's use of the work product of Independent
Contractor under this Agreement.
(h) Independent Contractor recognizes that the Company has received and
in the future will receive from third parties their confidential or proprietary
information subject to a duty on the Company's part to maintain the
confidentiality of such information and to use it only for certain limited
purposes. Independent Contractor agrees that Independent Contractor owes the
Company and such third parties, during the term of this Agreement and
thereafter, a duty to hold all such confidential or proprietary information in
the strictest confidence and not to disclose it to any person, firm or
corporation or to use it except as necessary in carrying out the Services for
the Company consistent with the Company's agreement with such third party.
(i) Upon the termination of this Agreement, or upon Company's earlier
request, Independent Contractor will deliver to the Company all of the Company's
property or Confidential Information that Independent Contractor may have in
Independent Contractor's possession or control.
3. OWNERSHIP
(a) Independent Contractor agrees that all ideas, material, notes,
records, drawings, designs, inventions, improvements, developments, discoveries
and trade secrets (collectively, "Inventions") conceived, made or discovered by
Independent Contractor, solely or in collaboration with others, during the
period of this Agreement which relate in any manner to the business of the
Company that Independent Contractor may be directed to undertake, investigate or
experiment with, or which Independent Contractor may become associated with in
work, investigation or experimentation in the line of business of the Company in
performing the Services hereunder, are the sole property of the Company. In
addition, any Inventions which constitute copyrightable subject matter shall be
considered "works made for hire" as that term is defined in the United States
Copyright Act. Independent Contractor further agrees to assign (or cause to be
assigned) and does hereby assign fully to the Company all Inventions and any
copyrights, trademarks, patents, mask work rights or other intellectual property
rights relating thereto.
(b) Independent Contractor agrees to assist Company, or its designee, at
the Company's expense, in every proper way to secure the Company's rights in the
Inventions and any trademarks, copyrights, patents, mask work rights or other
intellectual property rights relating thereto in any and all countries,
including the disclosure to the Company of all pertinent information and data
with respect thereto, the execution of all applications, specifications, oaths,
assignments and all other instruments which the Company shall deem necessary in
order to apply for and obtain such rights and in order to assign and convey to
the Company, its successors, assigns and nominees the sole and exclusive right,
title and interest in and to such Inventions, and any trademarks, copyrights,
patents, mask work rights or other intellectual property rights relating
thereto. Independent Contractor further agrees that Independent Contractor's
obligation to execute or cause to be executed, when it is in Independent
Contractor's power to do so, any such instrument or papers shall continue after
the termination of this Agreement.
(c) Independent Contractor agrees that, if in the course of performing
the Services,
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Independent Contractor incorporates into any Invention developed hereunder any
invention, improvement, development, concept, discovery or other proprietary
information owned by Independent Contractor or in which Independent Contractor
has an interest, the Company is hereby granted and shall have a nonexclusive,
royalty-free, perpetual, irrevocable, worldwide license to make, have made,
modify, use and sell such item as part of or in connection with such Invention.
(d) Independent Contractor agrees that if the Company is unable because
of Independent Contractor's unavailability, dissolution, mental or physical
incapacity, or for any other reason, to secure Independent Contractor's
signature to apply for or to pursue any application for any United States or
foreign trademarks, patents or mask work, or copyright registrations covering
the Inventions assigned to the Company above, then Independent Contractor hereby
irrevocably designates and appoints the Company and its duly authorized officers
and agents as Independent Contractor's agent and attorney in fact, to act for
and in Independent Contractor's behalf and stead to execute and file any such
applications and to do all other lawfully permitted acts to further the
prosecution and issuance of trademarks, patents, copyright and mask work
registrations thereon with the same legal force and effect as if executed by
Independent Contractor.
4. REPORTS
Independent Contractor agrees that it will from time to time during the
term of this Agreement, or any extension thereof, keep the Company advised as to
Independent Contractor's progress in performing the Services hereunder and that
Independent Contractor will, as requested by the Company, prepare written
reports with respect thereto. It is understood that the time required in the
preparation of such written reports shall be considered time devoted to the
performance of Independent Contractor's Services.
5. CONFLICTING OBLIGATIONS
(a) Independent Contractor certifies that Independent Contractor has no
outstanding agreement or obligation that is in conflict with any of the
provisions of this Agreement, or that would preclude Independent Contractor from
complying with the provisions hereof, and further certifies that Independent
Contractor will not enter into any such conflicting Agreement during the term of
this Agreement.
(b) In view of Independent Contractor's access to the Company's trade
secrets and proprietary know-how, Independent Contractor further agrees that
Independent Contractor will not, without Company's prior written consent, design
identical or substantially similar designs as those developed under this
Agreement for any third party during the term of this Agreement and for a period
of twelve (12) months after the termination of this Agreement.
6. TERM AND TERMINATION
(a) This Agreement will commence on the date set forth above and will
continue for a term of one (1) year or until termination as provided below.
(b) The Company may terminate this Agreement at any time, with or
without cause, upon giving written notice thereof to Independent Contractor. Any
such notice shall be addressed to Independent Contractor at the address shown
below or such other address as either party may notify the other of and shall be
deemed given upon delivery, if personally delivered, or forty-eight (48) hours
after deposited in the United States mail, postage prepaid, registered or
certified mail, return receipt requested. The Company may terminate this
Agreement immediately and without prior notice if Independent Contractor refuses
to or is unable to perform the Services or is in breach of any material
provision of this Agreement.
(c) Upon such termination, all rights and duties of the parties toward
each other shall cease except:
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(i) that the Company shall be obliged to pay, within thirty (30)
days of the effective date of termination, the balance of the fee that remains
owing to Independent Contractor for the full term of this Agreement; and
(ii) Sections 2 (Confidentiality), 3 (Ownership), 5 (b)
(Conflicting Obligations, 8 (Independent Contractors) and 9 (Arbitration and
Equitable Relief) shall survive termination of this Agreement.
7. ASSIGNMENT
Neither this Agreement nor any right hereunder or interest herein may be
assigned or transferred by Independent Contractor without the express written
consent of the Company.
8. INDEPENDENT CONTRACTOR
(a) Nothing in this Agreement shall in any way be construed to
constitute Independent Contractor as an agent, employee or representative of the
Company. Independent Contractor shall perform the Services hereunder as an
independent contractor. Independent Contractor agrees to furnish (or reimburse
the Company for) all tools and materials necessary to accomplish this contract,
and shall incur all expenses associated with its performance.
(b) Independent Contractor acknowledges and agrees that Independent
Contractor is obligated to report as income all compensation received by
Independent Contractor, pursuant to this Agreement, and Independent Contractor
agrees to and acknowledges the obligation to pay all self-employment and other
taxes thereon. Independent Contractor further agrees to indemnify the Company
and hold it harmless to the extent of any obligation imposed on the Company (i)
to pay in withholding taxes or similar items or (ii) resulting from Independent
Contractor's being determined not to be an independent contractor.
(c) Independent Contractor acknowledges that a portion of the work to be
performed by the Company involves or may involve physical risk. Independent
Contractor hereby releases and will hold harmless the Company from any physical
harm that it or any of its employees suffers as a result of Independent
Contractors performance under this Agreement. Independent Contractor also
acknowledges that it has sufficient medical benefits and insurance covering all
of its employees.
9. ARBITRATION AND EQUITABLE RELIEF
(a) Except as provided in Section 9(b) below, the Company and
Independent Contractor agree that any dispute or controversy arising out of or
relating to any interpretation, construction, performance or breach of this
Agreement, shall be settled by arbitration to be held in San Francisco County,
California, in accordance with the rules then in effect of the American
Arbitration Association. The arbitrator may grant injunctions or other relief in
such dispute or controversy. The decision of the arbitrator shall be final,
conclusive and binding on the parties to the arbitration. Judgment may be
entered on the arbitrator's decision in any court of competent jurisdiction. The
Company and Independent Contractor shall each pay one-half of the costs and
expenses of such arbitration, and each shall separately pay its respective
counsel fees and expenses.
(b) Independent Contractor agrees that it would be impossible or
inadequate to measure and calculate the Company's damages from any breach of the
covenants set forth in Sections 2 or 3 herein. Accordingly, Independent
Contractor agrees that if Independent Contractor breaches Sections 2 or 3, the
Company will have available, in addition to any other right or remedy available,
the right to obtain from any court of competent jurisdiction an injunction
restraining such breach or threatened breach and specific performance of any
such provision. Independent Contractor further agrees that no bond or other
security shall be required in obtaining such equitable relief and Independent
Contractor hereby consents to the issuances of such injunction and to the
ordering of such specific performance.
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10. GOVERNING LAW
This Agreement shall be governed by the laws of the State of California.
11. ENTIRE AGREEMENT
This Agreement is the entire agreement of the parties and supersedes any
prior agreements between them with respect to the subject matter hereof.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
day and year first above written.
MILLENNIUM 3 DESIGN
By: /s/ COLIN CHILDERLEY
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Name: Colin Childerley
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Title: Owner
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NETSTAFF, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇
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Title: President
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