CONSULTING AGREEMENT
THIS AGREEMENT is entered into as of July 31, 2000 by and between Masterpiece
Technology Group, Inc., a corporation organized and existing under the laws of
the State of Utah having its principal place of business at 455 Wards Corner
Road, Loveland, OH 45140, ("Company") and R. Daniel Rivera, an individual with a
principal address at 1068 Cedar St, Port Townsend, WA 98368 ("Consultant").
WITNESSETH:
In consideration of the premises and mutual covenants hereinafter contained, the
parties hereto agree as follows:
1. THE SERVICES
The Consultant agrees to provide strategic and tactical direction and guidance
to the Company and assist the Company in software development.
2. WORK FOR HIRE
a. It is the intention of the parties hereto that all rights, including
without limitation copyright and with the sole exception provided in Paragraph 4
below, in any reports, surveys, marketing promotional and collateral materials
prepared by the Consultant pursuant to the terms of this Agreement, or otherwise
for Company (hereinafter "the Work") vest in Company. The parties expressly
acknowledge that the Work was specially ordered or commissioned by Company, and
further agree that it shall be considered a "Work Made for Hire" within the
meaning of the copyright laws of the United States and that Company is entitled,
as author and with the sole exception provided in Paragraph 4 below, to the
copyright and all other rights therein, throughout the world, including, but not
limited to, the right to make such changes therein and such uses thereof, as it
may determine in its sole and absolute discretion.
b. If, for any reason, the Work is not considered a work made for hire under
the copyright law, then, except as provided in Paragraph 4 below, the Consultant
hereby grants and assigns to Company, its successors and assigns, all of its
rights, title, and interest in and to the Work, including, but not limited to,
the copyright therein throughout the world (and any renewal, extension or
reversion copyright now or hereafter provided), and all other rights therein of
any nature whatsoever, whether now known or hereafter devised, including, but
not limited to the right to make such changes therein, and such uses thereof, as
Company may determine.
3. INTELLECTUAL PROPERTY
Notwithstanding the provisions of Paragraph 3 above, Consultant hereby retains
the sole and exclusive right, title and interest in any intangible marketing or
business thought, concept, idea, method or process arising out of Consultant's
engagement with the Company pursuant to this Agreement.
4. PROPRIETARY INFORMATION
a. For purposes of this Agreement, "proprietary information" shall mean any
information relating to the business of Company or any entity in which Company
has a controlling interest and shall include (but shall not be limited to)
information encompassed in all drawings, designs, programs, plans, formulas,
proposals, marketing and sales plans, financial information, costs, pricing
information, customer information, and all methods, concepts or ideas in or
reasonably related to the business of Company.
b. Consultant agrees to regard and preserve as confidential, all proprietary
information, whether Consultant has such information in memory or in writing or
other physical form. Consultant shall not, without written authority from
Company to do so, directly or indirectly, use for the benefit or purposes, nor
disclose to others, either during the term of its engagement hereunder or
thereafter, except as required by the conditions of Consultant's engagement
hereunder, any proprietary information.
c. Consultant shall not disclose any reports, recommendations, conclusions or
other results of the Services or the existence or the subject matter of this
contract without the prior written consent of Company. In Consultant's
performance hereunder, Consultant shall comply with all legal obligations it may
now or hereafter have respecting the information or other property of any
other person, firm or corporation.
d. The Consultant expressly agrees that the covenants set forth in this
Paragraph are being given to Company in connection with the engagement of the
Consultant by Company and that such covenants are intended to protect Company
against the competition by the Consultant, within the terms stated, to the
fullest extent deemed reasonable and permitted in law and equity. In the event
that the foregoing limitations upon the conduct of the Consultant are beyond
those permitted by law, such limitations, both as to time and geographical area,
shall be, and be deemed to be, reduced in scope and effect to the maximum extent
permitted by law.
e. The foregoing obligations of this Paragraph shall not apply to any part of
the information that (i) has been disclosed in publicly available sources of
information, (ii) is, through no fault of the Consultant, hereafter disclosed in
publicly available sources of information, (iii) is now in the possession of
Consultant without any obligation or confidentiality, or (iv) has been or is
hereafter lawfully disclosed to Consultant by any third party, but only to the
extent that the use or disclosure thereof has been or is rightfully authorized
by that third party.
5. INJUNCTIVE RELIEF.
Consultant acknowledges that the injury to Company resulting from any violation
by it of any of the covenants contained in this Agreement will be of such a
character that it cannot be adequately compensated by money damages, and,
accordingly, Company may, in addition to pursuing its other remedies, obtain an
injunction from any court having jurisdiction of the matter restraining any such
violation; and no bond or other security shall be required in connection with
such injunction.
6. FEES AND REIMBURSEMENT OF CERTAIN EXPENSES
a. Company shall pay Consultant a consulting fee equal to One Hundred Fifty
Thousand (150,000) shares of unrestricted stock of the Company upon signing of
this Agreement. This stock will be used to pay development staff for custom
software development for the Claims Direct division of Masterpiece Technology
Group, acquisition of necessary software tools for continued development of the
Masterpiece EMR software product and required travel expenses on behalf of
Masterpiece Technology Group.
b. The Consultant shall provide to the Company on the first day of every month
an outline as to the Services that will be performed that month. Within ten
(10) days from the end of each and every month, Consultant will provide to
Company a statement as to the work that was performed for the prior month.
c. If in reviewing the statements made by the Consultant to the Company that
are required within ten (10) days after the close of a business month, Company
determines that Consultant is not making sufficient progress in order to
complete work for which Consultant was hired within a reasonable time, the
Company will give written notice to Consultant. Consultant shall have fifteen
(15) days to complete the work required and provide further reports to the
Company.
7. BENEFITS
The Consultant, as an independent contractor, shall not be entitled to any other
benefits other than the fees and reimbursement of expenses provided under
Paragraph 2 of this Agreement.
8. DUTY TO REPORT INCOME
The Consultant acknowledges and agrees that it is an independent contractor and
not an employee of the Company and that it is Consultant's sole obligation to
report as income all compensation received from Company pursuant to this
Agreement. The Consultant further agrees that the Company shall not be
obligated to pay withholding taxes, social security, unemployment taxes,
disability insurance premiums, or similar items, in connection with any
payments made to the Consultant pursuant to the terms of this Agreement.
9. TERM
This Agreement shall be effective beginning as of July 31, 2000, and shall
continue until date of delivery of completed product and Services; provided,
however, that either Company or Consultant may terminate this Agreement in whole
or in part at any time upon thirty (30) days' written notice to the other party.
In the event of termination or upon expiration of this Agreement, Consultant
shall return to Company any and all equipment, documents or materials, and all
copies made thereof, which Consultant received from Company for the purposes of
this Agreement and the Company shall pay to Consultant the amounts provided in
Paragraph 2 hereof through the date of such termination or expiration.
10. INDEMNIFICATION
The Consultant shall indemnify and save Company harmless from and against all
claims arising in favor of any person, firm or corporation on account of
personal injury or property damage in any way resulting from the improper or
illegal acts of Consultant, its employees or agents. The foregoing indemnity
shall include all costs incurred by Company, including reasonable attorneys'
fees.
11. NOTICES
All notices and billings shall be in writing and sent via first class mail to
the respective addresses of the parties set forth at the beginning of this
Agreement or to such other address as any party may designate by notice
delivered hereunder to the other party.
12. GENERAL
A. The terms and conditions of Paragraphs 3, 4, 5 and 6 hereof shall survive
the termination of this Agreement or completion of the Services as the case may
be.
B. Neither the Company nor Consultant shall assign this Agreement or delegate
its duties hereunder and shall not subcontract any of the Services to be
performed hereunder without the prior written consent of the other party hereto.
C. Consultant shall perform the Services as an independent contractor and
shall not be considered an employee of Company or Partner, joint venturer or
otherwise related to Company for any purpose.
D. This Agreement shall be governed by the laws of the State of Washington.
E. This Agreement constitutes the entire understanding between Consultant and
Company respecting the Services described herein. The terms and conditions of
any purchase order shall have no effect upon this Agreement and shall be used
for accounting purposes only.
F. The failure of either party to exercise its rights under this Agreement
shall not be deemed to be a waiver of such rights or a waiver of any subsequent
breach.
G. Any delay or nonperformance of any provision of this Agreement caused by
conditions beyond the reasonable control of the performing party shall not
constitute a breach of this Agreement, provided that the delayed party has taken
reasonable measures to notify the other of the delay in writing. The delayed
party's time for performance shall be deemed to be extended for a period equal
to the duration of the conditions beyond its control."Conditions beyond a
party's reasonable control" include, but are not limited to, natural disasters,
acts of government after the date of the Agreement, power failure, fire, flood,
acts of God, labor disputes, riots, acts of war and epidemics. Failure of
subcontractors and inability to obtain materials shall not be considered
a condition beyond a party's reasonable control.
H. Non-Solicitation of Consultant's Employees: Company agrees not to knowingly
hire or solicit Consultant's employees during performance of this Agreement and
for a period of two years after termination of this Agreement without
Consultant's written consent.
I. Mediation and Arbitration: If a dispute arises under this Agreement, the
parties agree to first try to resolve the dispute with the help of a mutually
agreed-upon mediator in King County, Washington. Any costs and fees other than
attorney fees associated with the mediation shall be shared equally by the
parties. If the dispute is not resolved through mediation, the parties agree to
submit the dispute to binding arbitration in King County, Washington under the
rules of the American Arbitration Association. Judgment upon the award rendered
by the arbitrator may be entered in any court with jurisdiction to do so.
J. Attorney Fees: If any legal action is necessary to enforce this Agreement,
the prevailing party shall be entitled to reasonable attorney fees, costs and
expenses.
K. Complete Agreement: This Agreement together with all exhibits, appendices
or other attachments, which are incorporated herein by reference, is the sole
and entire Agreement between the parties. This Agreement supersedes all prior
understandings, agreements and documentation relating to such subject matter. In
the event of a conflict between the provisions of the main body of the Agreement
and any attached exhibits, appendices or other materials, the Agreement shall
take precedence. Modifications and amendments to this Agreement, including
any exhibit or appendix hereto, shall be enforceable only if they are in writing
and are signed by authorized representatives of both parties.
IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement as of
the date first above written.
MASTERPIECE TECHNOLOGY GROUP, INC.
_______________________________________
Newell Crane, President & CEO
_______________________________________
R. Daniel Rivera, Consultant
Consultant Agreement
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