UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of The Securities Exchange Act of 1934
Date of Report (Date of earliest event reported): June 10, 2016
APPSOFT TECHNOLOGIES, INC.
(Exact name of registrant as specified in its charter)
Nevada | 333-206764 | 47-3427919 |
(State or other jurisdiction of incorporation) |
(Commission File Number) |
(IRS Employer Identification No.) |
1225 Franklin Avenue, Suite 325, Garden City, NY | 11530 | |
(Address of principal executive offices) | (Zip Code) |
Registrant’s telephone number, including area code: (516) 224-7717
(Former name or former address, if changed since last report.)
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:
¨ Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425).
¨ Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12).
¨ Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)).
¨ Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)).
Item 1.01. Entry into a Material Definitive Agreement
Acquisition of eSports Tournament Platform Assets
On June 10, 2016, AppSoft Technologies, Inc. (the “Company”) acquired certain assets comprising an eSports tournament platform for competitive gamers from Guuf LLC (“Guuf”). The Company acquired the assets for a total purchase price of $60,000 consisting of (i) $15,000 in cash, which has been paid, (ii) 80,000 shares of common stock valued at $0.50 per share (the price at which the Company sold shares to its initial public offering completed in March 2016); (iii) $5,000 in cash payable by August 1, 2016 and (iv) the grant of a royalty equal to 5% of the first calendar year’s profits generated by the Company from the assets, a royalty equal to 4% of year two profits and royalty equal to 3% of year three profits. As additional consideration for the assets, the Company entered into consulting agreement with Nathan Cavanaugh, the sole member of Guuf, as described below.
The assets consist of the following:
· | title to registered or unregistered trademarks and trade names; |
· | web platform, files, source code and object code; |
· | branding and marketing collateral; |
· | Guuf.com domain name; |
· | prototyped design files of Guuf’s mobile application for iOS; |
· | web development of new Guuf features, including free play modes and mobile gaming tournaments; |
· | strategic development of Guuf’s user achievements list and ranking and leaderboard system calculations; and |
· | sourcing of development for new Guuf features including automated score reporting, API, mobile application for iOS, user achievements, ranking and leaderboard systems, and live streaming. |
Acquisition of Mobile App Assets
On June 10, 2016, the Company acquired by assignment from Marc Seal certain concepts, artwork, story lines and related computer software in connection with a computer game titled “CryptoGene,” for mobile application (the “Assigned Property”), including:
(i) | Complete “CryptoGene” intellectual property (Any active and applicable trademarks, copyrights, patents, works, etc.) |
(ii) | CryptoGene website (www.CryptoGene.com) |
(iii) | CryptoGene software (Video Game for mobile and computer platforms) |
(iv) | CryptoGene: Origins (Work in Progress 50 Page Graphic Novel) |
(v) | CryptoGene Short Story (Work in Progress 10 Page Graphic Novel) |
The assignment includes all of Mr. Seal’s right and interest in and to the intellectual property, including any right to use or disseminate CryptoGene as a mobile application or in any other medium (including all other audio-visual rights, print and allied and incidental rights), all advertising, publication and promotion rights with respect to any part of CryptoGene or any adaptation or version thereof, and all merchandising, commercial tie-in, publishing and exploitation rights.
In consideration for the assignments made by Mr. Seal under the agreement, the Company agreed to pay to Mr. Seal:
(a) royalties starting at 10% of the net profit generated by the Company from software and games developed from the Assigned Property declining to 5% in the fifth year after release, where the royalty remains for sol long as the Company sells such products;
(b) a royalty equal to 10% of the net profit generated by the Company from the sale of all print media products derived from the Assigned Assets for so long as the Company sells such products;
(c) a royalty equal to 3% of the net profit generated by the Company from the sale of all other products derived from the Assigned Assets; and
In addition, the Company agreed to enter into a consulting agreement with Mr. Seal, as described below.
The Assigned Property will revert back to Mr. Seal in the event that the Company does not release a version of CryptoGene or a product related thereto or derived therefrom within, or otherwise discontinues active development of CryptoGene for, a period of two years from the date of the agreement.
Mr. Seale will retain creative control over all products and properties derived from the Assigned Property. In the event the parties disagree with respect to the creative direction or the products or properties deriving from the Assigned Property proposed by Mr. Seale, if the parties can not agree upon a mutual solution, the parties agree that a vote as to the creative direction and the products or properties deriving from the Assigned Property proposed by Mr. Seale shall be subject to a vote of Mr. Seal, Brian Kupchik, the President of the Company, and Joseph Cheng, a consultant to the Company.
Mr. Seal agree to defend, indemnify, and hold harmless the Company and its officers, directors, shareholders, successors, and assigns, from and against certain liabilities, including, reasonable attorneys’ fees, that the Company or it officers, directors, shareholders, successors, and assigns may incur or be required to pay arising out of, based upon, or by reason of: (i) the breach by Mr. Seal of any of the representations or warranties made by him under the Agreement; (ii) Mr. Seal’s use of the Assigned Property prior to the date of the agreement; or (iii) Mr. Seal’s failure to perform his obligations under the agreement.
Under the agreement, Mr. Seal represented and warranted to the Company that: (i) he exclusively owned all right, title, and interest in and to the Assigned Property; (ii) he had not granted any licenses or other rights to the Assigned Property to any third party; (iii) the Assigned Property was free of any liens, encumbrances, security interests, and restrictions on transfer; (iv) to his knowledge, the Assigned Property does not infringe intellectual property rights of any third party; and (v) there were no legal actions, investigations, claims, or proceedings pending or threatened relating to the Assigned Property.
Master Services Agreements
On June 10, 2016, the Company entered into a series of agreements with the software developers named below to perform the development and other services described:
1. The Company entered into a Master Services Agreement and Statement of Work with David Sotir to render development services on behalf of the Company. In consideration for the services to be rendered, the Company has agreed to pay to Mr. Sotir a total development fee of $7,000, of which $1,750 USD has been paid, a second installment of $1,750 to be paid at a half-way milestone to be determined by the parties during development, and $3,500 to be paid upon completion delivery of the completed codebase.
2. The Company entered into a Master Services Agreement and Statement of Work with Gnomish Games to render development services on behalf of the Company. In consideration for the services to be rendered by the consultant, the Company has agreed to pay the consultant a total development fee of $13,000, of which $4,000 has been paid, a second installment of $2,500 to be paid on July 1, 2016, a third installment of $2,500 to be paid on August 1, 2016 and the remaining balance of $4,000 to be paid upon completion delivery of the completed codebase.
3. The Company entered into a Master Services Agreement and Statement of Work with Clayton Tapp to render development services on behalf of the Company. In consideration for the services to be rendered, the Company has agreed to pay to Mr. Tapp a total development fee of $4,000, of which $1,000 has been paid, a second installment of $1,000 to be paid at a half-way milestone which will be determined by the parties during development, and any remaining balance, estimated to be $2,000, to be paid upon completion delivery of the completed codebase.
4. The Company entered into a Master Services Agreement and Statement of Work with Shawn Burdon to render development services on behalf of the Company. In consideration for the services to be rendered, the Company has agreed to pay to Mr. Burdon a total development fee of $4,000, of which $2,000 has been paid and the balance of which, equal to $2,000, will be paid upon completion delivery of the completed codebase. The parties have agreed that if the available ending budget permits, the Company will pay to Mr. Burdon a bonus payment in the amount of $1,000.
Each of the foregoing agreements is subject to the following additional terms:
· | The consultants’ work (including the software, technical design and the documentation) will be deemed a “commissioned work” and “work made for hire” and the Company will be the sole owner of work product and/or any works derived therefrom. To the extent that a consultant’s work is not properly characterized as a “work made for hire,” the consultant has irrevocably assigned to the Company all its interest in and to its work and the software to the Company. |
· | The parties have agreed to maintain the confidentiality of all information relating to the other party for a period of three years after the term of the agreement. |
· | Each consultant has agreed to indemnify and hold the Company harmless from any loss, claim, or damage (including attorney’s fees, collectively, a “Loss”) to persons or property arising out of its agreement with the Company and the work product or the services, to the extent that the Loss (i) is caused by the consultant’s breach of any term of the agreement or any intentional act of the Consultant; and (ii) for any infringement on any patent, copyright, trademark or other intellectual property rights (including trade secrets), open source licenses, privacy, or other proprietary rights of any person or entity; provided that such infringement is not a result of the Company’s unauthorized modification of the software developed. The obligation of each consultant to indemnity the Company survives any termination of the agreement. |
· | The Company has agreed to indemnify and hold the Consultant harmless from any Loss to the extent that the Loss is caused by the Company’s breach of any term of the agreement or the intentional act of the Company. This indemnity survives termination of this Agreement. |
· | Except for claims related to confidentiality or infringement of intellectual property rights, neither party will be liable to the other for special, indirect or consequential damages incurred or suffered by the other arising as a result of or related to the performance of the consultant’s work, even if the other has been advised of the possibility of such loss or damages. |
· | During the term of each agreement and for a period of two years thereafter, neither party will directly or indirectly solicit or offer employment to or hire any individual known by the party to be an employee, former employee, subcontractor or former subcontractor of the other party. |
· | During the term of each agreement and for a period of three years following date of termination, neither the consultant nor any of its affiliates shall either directly or indirectly, enter into or participate in any business which is in direct or indirect competition with the Company’s business. A consultant may not utilize the software, documentation, or technical design of the work product developed for the Company for any external purposes. Further, a consultant may not, independently or with a third party, develop, license, sell or distribute, or explore any opportunity to develop, license, sell or distribute any software substantially similar to the software developed for the Company for any direct or indirect competitor of the Company during the term of the agreement and for a period of three years thereafter. |
· | Any dispute arising under the agreements is subject to binding arbitration. |
· | The Company may terminate the agreement without cause on thirty days’ written notice. Either party may terminate the agreement for material breach, provided, however, that the terminating party gives the other party at least fourteen days written notice of and the opportunity to cure the breach. |
Consulting Agreements
On June 10, 2016, the Company entered into a series of consulting agreements with the persons named below to perform the development and other services described:
1. The Company entered into an agreement with Marc Seal to mange software development to occur over a term of two years. Mr. Seal has agreed to devote at least 25 hours per week to the performance of the services for the Company. In consideration for the services to be rendered, the Company has agreed to:
· | pay to Mr. Seal cash compensation not to exceed $100,000, of which $4,000 is payable in June 2016; $2,500 is payable in July 2016, $3,000 is payable in August 2016 and $3,000 is payable in September 2016; thereafter, the Company will pay to Mr. Seal $3,500 per month until the end of the term or until the assigned development services are completed. |
· | issue to Mr. Seal 85,000 shares of common stock; and |
· | pay to Mr. Seal royalties ranging from 5% to 15% of the net profit generated by the Company from the publication or commercialization of products he develops during the term of the agreement. |
2. The Company entered into an agreement with Nathan Cavanaugh to provide development, strategy and other services related to game tournament products and projects in connection with the software the Company purchased from Guuf, as described above, for a period of two years. In consideration for the services to be rendered, the Company has agreed to pay Mr. Cavanaugh at the rate of $150 per hour, provided that the Company’s maximum liability for all services performed during the term of the agreement shall not exceed $5,000 per month or $60,000 per year. The agreement provides for a term ending on the earlier of (a) the date that Mr. Cavanaugh completes the provision of the services to the Company or (b) the date on which he shall have been paid the maximum amount of consulting fees.
3. The Company entered into an agreement with Seven Plus Two LLC to perform development services for a period of six months. Mr. Johnson, the principal of the consultant has agreed to devote at least 20 hours per week to the performance of the services for the Company. The Company has agreed to pay the consultant at the rate of $80.00 per hour, payable monthly. Unless otherwise agreed upon in writing by Company, Company’s maximum liability for all services to be rendered during the term of the agreement is not to exceed $ 9,600.00 .
4. The Company entered into an agreement with Gleb Kartsev to manage the Company’s development projects for a period of two years. Mr. Kartsev has agreed to devote at least 25 hours per week to performance of the services fort the Company. In consideration for the services to be rendered by Mr. Kartsev, the Company has agreed to compensate Mr. Kartsev (i) by paying a fixed cash fee of $2,000 per month; (ii) issuing to him 30,000 shares of common stock upon the execution of the agreement; (iii) by issuing to him 5,000 shares of common stock in each of July through October 2016 and (iv) by paying him a royalty equal to 25% of the net profit generated by the Company from the sale of “WTFIT and PlanIT Pro” applications (the current working titles) during development and for a period of two years after release, and thereafter, the Company shall pay to Mr. Kartsev a royalty in each of the following five years that declines to 5% in the fifth year. The agreement will terminate on the earlier of (a) the date Mr. Kartsev completes the provision of the contracted services under the agreement, or (b) the date he shall have been paid the maximum amount of consulting fees.
5. The Company entered into an agreement with Joseph Cheng to manage the Company’s development projects. Mr. Cheng has agreed to devote at least 25 hours per week to the performance of the services on behalf of the Company. In consideration for the services to be rendered by Mr. Cheng, the Company agreed (i) to issue to Mr. Cheng 50,000 shares of common stock upon signing of the agreement and 10,000 shares of common stock in each of June, July, August, September and October 2016 and (b) to pay Mr. Cheng royalties ranging from 5% to 25% of the net profit generated by the Company from the publication or commercialization of certain products on different media platforms from the various projects being developed by the Company.
Each of the consultants listed above previously entered into a Confidential Information and Invention Assignment Agreement that provides that the consultant shall maintain the confidentiality of all confidential information (as such term is defined in the agreement) relating to the Company during and after the expiration of the term of the agreement. Such agreement further provides that the consultant grants to the Company (i) all of its rights and interest in any invention (as defined in the agreement) which the consultant authors, discovers, develops, conceives, or reduces to practice during the term of the agreement and (ii) right to use any invention developed by the consultant and incorporated into the work product made by the consultant for the Company on a royalty free and perpetual basis. The consultant also agreed not to solicit any employee of consultant of the Company to terminate such person’s relationship with the Company for a period of two years after the expiration of the agreement or use any of the Company’s confidential information to influence any client or customer of the Company to purchase any product from any entity in competition with the Company.
The foregoing descriptions of the terms of the agreements identified above do not purport to be complete and are subject to, and qualified in their entirety by reference to, the various agreements, which are filed herewith as Exhibit 99.1 through 99.22 and are incorporated herein by reference.
Item 3.02. Unregistered Sales of Equity Securities.
In connection with their entry into the agreements described under Item 1.01, above, and as partial consideration to the consultants for the services to be rendered, the Company issued an aggregate of 245,000 shares of common stock, par value $0.0001 per share (the “Shares”), to persons identified in the table below, pursuant to the exemption from registration afforded by Section 4(a)(2) of the Securities Act of 1933, as amended. All of the shares were issued as compensation under the consulting agreements referenced in Item 1.01, above, and are valued at $0.50 per share.
Name | No. of Shares |
Nathan Cavanaugh | 80,000 |
Marc Seal | 85,000 |
Gleb Kartsev | 30,000 |
Joseph Cheng | 50,000 |
Item 5.02. Departure of Directors or Certain Officers; Election of Directors; Appointment of Certain Officers; Compensatory Arrangements of Certain Officers.
On June 10, 2016, Seth Ingram resigned as a member of the board of directors. Mr. Ingram’s resignation was for personal reasons and not a result of a disagreement with the Company on any matter relating to the Company’s operations, policies or practices. Upon his resignation, Mr. Ingram returned to the Company for cancellation 1.6 million of the 2 million shares of common stock registered in his name. After giving effect to the cancellation of Mr. Ingram’s shares, there were 2,762,500 shares of common stock outstanding.
Forward-Looking Statements
Certain statements contained in this filing may be considered forward-looking statements within the meaning of Section 27A of the Securities Act of 1933, as amended (“Securities Act”), and Section 21E of the Securities Exchange Act of 1934, as amended, including statements regarding the Company’s ability to fully develop or commercialize the assets acquired pursuant to the agreements described herein and filed herewith and the ability of the consultants engaged pursuant to the agreements described herein and filed herewith to develop economically viable products. These forward-looking statements generally include statements that are predictive in nature and depend upon or refer to future events or conditions, and include words such as “believes,” “plans,” “anticipates,” “projects,” “estimates,” “expects,” “intends,” “strategy,” “future,” “opportunity,” “may,” “will,” “should,” “could,” “potential,” or similar expressions. Statements that are not historical facts are forward-looking statements. Forward-looking statements are based on current beliefs and assumptions that are subject to risks and uncertainties. Forward-looking statements speak only as of the date they are made, and the Company undertakes no obligation to update any of them publicly in light of new information or future events. Actual results could differ materially from those contained in any forward-looking statement as a result of various factors. Investors are urged to review the risks and uncertainties discussed in the Company’s filings with the SEC, including the “Risk Factors” section of the Company’s prospectus filed with the SEC pursuant to Rule 424(b)(3) under the Securities Act on February 3, 2016. Readers are cautioned not to place undue reliance on these forward-looking statements, which speak only as of the date thereof.
Item 9.01. Financial Statements and Exhibits.
(d) Exhibits. The following exhibit is being filed herewith this Current Report on Form 8-K
Exhibit No. | Description |
99.1 | Asset Transfer Agreement dated June 10, 2016, between AppSoft Technologies, Inc. and Guuf LLC relating to the acquisition of certain assets comprising an eSports tournament platform for competitive gamers. |
99.2 | Assignment and Transfer Agreement dated June 10, 2016 between AppSoft Technologies, Inc. and Marc Seal relating to the assignment of certain intellectual property known as “CryptoGene.” |
99.3 | Master Services Agreement and Statement of Work dated June 10, 2016 between AppSoft Technologies, Inc. and David Sotir. |
99.4 | Master Services Agreement and Statement of Work dated June 10, 2016 between AppSoft Technologies, Inc. and Gnomish Games. |
99.5 | Master Services Agreement and Statement of Work dated June 10, 2016 between AppSoft Technologies, Inc. and Clayton Tapp . |
99.6 | Master Services Agreement and Statement of Work dated June 10, 2016 between AppSoft Technologies, Inc. and Shawn Burdon . |
99.7 | Consulting Agreement dated June 10, 2016 between AppSoft Technologies, Inc. and Marc Seal . |
99.8 | Consulting Agreement dated June 10, 2016 between AppSoft Technologies, Inc. and Nathan Cavanaugh. |
99.9 | Consulting Agreement dated June 10, 2016 between AppSoft Technologies, Inc. and Seven Plus Two LLC. |
99.10 | Consulting Agreement dated June 10, 2016 between AppSoft Technologies, Inc. and Gleb Kartsev. |
99.11 | Consulting Agreement dated June 10, 2016 between AppSoft Technologies, Inc. and Joseph Cheng. |
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
APPSOFT TECHNOLOGIES, INC. | |||
Date: June 16, 2016 | By: | /s/ Brian Kupchik | |
Brian Kupchik, President |
Exhibit 99.1
ASSET TRANSFER AGREEMENT
THIS ASSET TRANSFER AGREEMENT (the “Agreement”) made and entered into this 10 th day of June, 2016 (the “Execution Date”). ”).
BETWEEN:
Guuf LLC of 610 Victoria Lane, Wexford, Pennsylvania 15090 (the “Seller”)
and
AppSoft Technologies, Inc. of 1225 Franklin Avenue, Suite 325, Garden City, New York 11530 (the “Purchaser”).
Each of Seller and Purchaser may be referred to herein as a “Party” and together as the “Parties.”
BACKGROUND
A. The Seller is an eSports tournament platform for competitive gamers, operating under the name “Guuf.”
B. The Seller is the sole member of Guuf LLC and desires to sell certain assets to the Purchaser, subject to any exclusions set out in this Agreement and the Purchaser desires to buy the Assets.
IN CONSIDERATION of the provisions contained in this Agreement and for other good and valuable consideration, the receipt and sufficiency of which is consideration is acknowledged, the Parties agree as follows:
I. Definitions
1. The following definitions apply in the Agreement:
a. The Assets consist of the following:
i. Title to registered or unregistered trademarks and trade names, all of which are set forth on Schedule I(i) and to which such Schedule is appended all filings made in connection with any such registrations.
ii. Guuf’s Web Platform, Files, Source Code and Object Code, all of which are identified on Schedule I(ii) iii. Branding and Marketing Collateral, a list of which is set forth on Schedule I(iii).
iv. Guuf.com Domain Name.
v. Prototyped design files of Guuf’s mobile application for iOS
vi. Web Development of new Guuf features including Free Play Modes and Mobile Gaming Tournaments
vii. Strategic development of Guuf’s User Achievements List and Ranking and Leaderboard System calculations
viii. Sourcing of development for new Guuf features including Automated Score Reporting, Guuf’s API, Guuf’s mobile application for iOS, User Achievements, Ranking and Leaderboard Systems, and Live Streaming. and does not include any excluded Assets not stated herein.
The foregoing are herein referred to as the “Assets.”
2. The following “Excluded Assets” are not being sold, assigned or transferred under this Agreement:
i. Cash items held by the Seller including, but not limited to, cash bank balances and term deposits.
ii. Securities held by the Seller including, but not limited to, shares, notes, bonds and debentures.
iii. Records in the possession of the Seller relating to the excluded assets and corporate and financial records which are not related to carrying on the activities of the Seller.
iv. Accounts receivable and all other monies owed to the Seller due to operation of the Seller.
II. Sale
1. Subject to the terms and conditions of this Agreement, and in reliance and on the representations, warranties, and conditions set out in this Agreement, the Seller agrees to sell, assign and transfer the Assets to the Purchaser and the Purchaser agrees to purchase and accept the Assets from the Seller.
b. The closing (“Closing”) of the purchase and sale of the Assets shall occur at such time as the Parties mutually agree but in no event more the fourteen (14) business days after the date upon which this Agreement is executed by the Parties (the date upon which the Closing occurs may be referred to as the “Closing Date”). At the Closing, Seller will deliver the Assets to Purchaser in such ever form as the Purchaser reasonably requires to obtain possession thereof and Purchaser will deliver the Purchase Price, as hereafter defined, to Seller.
III. Purchase Price
1. The Parties agree that the aggregate purchase price for the Assets is $60,000, payable as set forth in Section IV (“Purchase Price”). The Parties agree that the Purchase Price will be allocated among the Assets as follows subject to the required adjustments that are agreed upon by the Parties:
Asset | Price | |||
Trademarks and trade names | $ | 1,000.00 | ||
Web Platform, Files, and Code | 56,000.00 | |||
Branding and Marketing Collateral | 1,000.00 | |||
Guuf.com Domain Name | 2,000.00 | |||
Total Purchase Price: | $ | 60,000.00 |
2. The Parties agree to co-operate in the filing of elections under the Internal Revenue Code and under any other applicable taxation legislation, in order to give the required or desired effect to the allocation of the Purchase Price.
3. At Closing and upon the Purchaser paying the first installment of the Purchase Price to the Seller, the Seller will deliver the Assets to the Purchaser. The Seller will deliver to the Purchaser possession of the Assets, free and clear of any liens, charges, rights of third parties, or any other encumbrances, except those attached as a result of the Purchaser’s actions.
4. At Closing and upon the Purchaser paying the first installment of the Purchase Price to the Seller, the Seller will provide the Purchaser with duly executed forms and documents evidencing the transfer of the Assets, where required including, but not limited to, bills of sale, assignments, assurances, and consents. The Seller will also co-operate with the Purchaser as needed in order to effect the required registration, recording, and filing with public authorities of the transfer of ownership of the Assets to the Purchaser.
5. After the Closing, Seller shall from time to time, at the request of Purchaser and without further cost or expense to Purchaser, execute and deliver such other instruments of conveyance and transfer and take such other actions as Purchaser may reasonably request, in order to more effectively consummate the transactions contemplated hereby and to vest in Purchaser good and marketable title to the Assets.
IV. Payment
1. A deposit of (i) $15,000.00 US Dollars and (ii) 80,000 shares of Purchaser’s common stock, par value $0.001 per share (“Shares”), valued at $0.50 per share (the “Deposit”), will be payable to the Seller on or before June 15, 2016. The remaining $5,000.00 US Dollars (the “Balance Amount”) will be made payable to the Seller on or before August 1st, 2016.
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2. At the Closing, Purchaser will enter into a Consulting Agreement with Nathan Cavanaugh in a form to be agreed upon by the Parties, pursuant to which, among other things, Purchaser will compensate Mr. Cavanaugh for the services described therein at an hourly rate of $150.00 US Dollars for all future design, development, consulting, and strategic work completed for the Purchaser.
3. Seller will receive a 5% royalty of the first calendar year’s profits generated by the Assets being sold to the Purchaser followed by a royalty equal to 4% of year two profits and 3% of year three profits.
4. The Purchaser is responsible for paying all applicable taxes, including federal sales tax, State sales tax, duties, and any other taxes or charges payable that are necessary to give effect to the transfer of the Assets from the Seller to the Purchaser.
V. Deposit and Failure to Close
1. If the transaction set out in this Agreement does not close due to the Seller’s failure to satisfy its obligations, warrants, or representations as set out in this Agreement, not including any conditions precedent, then the Deposit will be return to the Purchaser. All Assets transferred to the Purchaser shall be returned to the Seller.
2. If the transaction set out in this Agreement does not close due to the Purchaser’s failure to satisfy its obligations, warrants, or representations as set out in this Agreement, not including any conditions precedent, then the Deposit will be retained by the Seller.
VI. Seller’s Representations and Warranties
1. The Seller represents and warrants to the Purchaser that:
a. The Seller has full legal authority to enter into and exercise its obligations under this Agreement.
b. The Seller is duly incorporated or continued, validly existing, and in good standing under the laws of the State of Delaware and has all requisite authority to carry on business as currently conducted.
c. The Seller, Guuf LLC, has all necessary corporate power, authority, and capacity to enter into this Agreement and to carry out its obligations. The member of the Seller has unanimously authorized the Company’s execution, delivery and performance of this Agreement and the consummation of the sale, assignment and transfer of the Assets.
d. The Seller is the absolute beneficial owner of the Assets, with good and marketable title, free and clear of any liens, charges, encumbrances or rights of others. The Seller is exclusively entitled to possess and dispose of the Assets. At Closing, Seller will have and will transfer to Purchaser good and marketable title to all of the Assets, free and clear of any liens, charges, encumbrances or rights of others.
e. The Seller is domiciled in the United States of America for the purposes of the Internal Revenue Code.
f. The Assets, while owned by the Seller, have been maintained at all times in accordance with standard industry practice. The Seller further warrants that all tangible assets are in good working order.
g. This Agreement has been duly executed and delivered by the Seller and constitutes a legal and binding obligation of the Seller.
h. The Assets being sold, assigned and transferred to Purchaser hereby constitute all of the assets, properties and rights required for the Purchaser to conduct and operate the business of the Seller as it is presently conducted.
i. Neither the execution and the delivery of this Agreement, nor the consummation of the transactions contemplated hereby will (a) violate any laws to which Seller is subject or any provision of the certificate of formation, operating agreement or any other organizational document of Seller or (b) conflict with, result in a breach of, constitute a default under, result in the acceleration of, create in any party the right to accelerate, terminate, modify, or cancel, or require any notice under any contract to which Seller is party.
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j. Seller is aware of the Company’s business affairs and financial condition and has acquired sufficient information about the Company, including a copy of Purchaser’s registration statement on Form S-1 dated February 1, 2016 (SEC Registration No. 333-206764) to reach an informed and knowledgeable decision to accept the Shares as partial consideration for sale of the Assets hereunder.
k. Seller is acquiring the Shares for investment for the undersigned’s own account only and not with a view to, or for resale in connection with, any “distribution” thereof within the meaning of the Securities Act of 1933, as amended (the “Securities Act”), or under any applicable provision of state law.
l. The undersigned understands that the Shares have not been registered under the Securities Act.
m. The undersigned will not sell, assign, pledge, give, transfer, encumber, hypothecate or otherwise dispose of the Shares (collectively, a “Transfer”) except as provided herein. Any Transfer of the Shares shall be void unless the provisions of this Agreement are satisfied.
n. Seller understands that the Shares are characterized as “restricted securities” under the Securities Act inasmuch as they are being acquired in a transaction not involving a public offering and that, under the Securities Act and applicable regulations thereunder, such securities may be resold without registration under the Securities Act only in certain limited circumstances. In this connection, the undersigned represents that the undersigned is familiar with Rule 144 as promulgated under the Securities Act and as presently in effect, and understands the resale limitations imposed thereby and by other applicable provisions of the Securities Act. The undersigned understands that the Company is under no obligation to register any of the Shares.
o. Seller acknowledges that the stock certificate evidencing the Shares, shall bear the following legend (as well as any legends required by applicable state securities laws):
“THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR THE SECURITIES LAWS OF ANY STATE, AND MAY NOT BE SOLD, ASSIGNED, PLEDGED, HYPOTHECATED, TRANSFERRED, ENCUMBERED OR OTHERWISE DISPOSED OF, UNLESS AND UNTIL REGISTERED UNDER THE SECURITIES ACT AND/OR APPLICABLE STATE SECURITIES LAWS, OR UNLESS THE COMPANY HAS RECEIVED AN OPINION OF COUNSEL OR OTHER EVIDENCE, REASONABLY SATISFACTORY TO THE COMPANY AND ITS COUNSEL, THAT SUCH REGISTRATION IS NOT REQUIRED.”
p. The Seller warrants to the Purchaser that each of the representations and warranties made by it are accurate and not misleading at the Closing Date.
VII. Purchaser’s Representations and Warranties
1. The Purchaser represents and warrants to the Seller that:
a. The Purchaser has full legal authority to enter into and exercise its obligations under this Agreement.
b. The corporate Purchaser has all necessary power, authority, and capacity to enter into this Agreement and to carry out its obligations under this Agreement. The execution and delivery of this Agreement, and this transaction has been duly authorized by all necessary corporate action on the part of the corporate Purchaser.
c. The Purchaser has necessary funds available to pay the full Purchase Price and any expenses accumulated by the Purchaser in connection with this Agreement.
d. The Purchaser is domiciled in the United States of America for the purposes of the Internal Revenue Code.
e. The Purchaser has no knowledge that any representation or warranty given by the Seller in this Agreement is inaccurate or false.
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f. The Purchaser warrants to the Seller that each of the representations and warranties made by it are accurate and not misleading at the Closing Date. The Purchaser acknowledges that the Seller is entering into this Agreement in reliance on each warranty representations.
VIII. Conditions Precedent to be Performed by the Purchaser
1. The obligation of the Seller to complete the sale of the Assets under this Agreement is subject to the satisfaction of the following conditions precedent by the Purchaser, on or before the Closing Date, each of which is acknowledged to be for the exclusive benefit of the Seller and may be waived by the Seller entirely or in part:
a. All of the representations and warranties made by the Purchaser in this Agreement will be true and accurate in all material respects on the Closing Date.
b. The Purchaser will obtain or complete all forms, documents, consents, approvals, registrations, declarations, orders, and, authorizations from any person or any governmental or public body, required of the Purchaser in connection with the execution of this Agreement.
IX. Conditions Precedent to be Performed by the Seller
1. The obligation of the Purchaser to complete the purchase of the Assets under this Agreement is subject to the satisfaction of the following conditions precedent by the Seller, on or before the Closing Date, each of which is acknowledges to be for the exclusive benefit of the Purchaser and may be waived by the Purchaser entirely or in part:
a. All of the representations and warranties made by the Purchaser in this Agreement will be true and accurate in all material respects on the Closing Date.
b. The Seller will obtain and complete any and all forms, documents, consents, approvals, registrations, declarations, orders, and authorizations from any person or governmental or public body that are required of the Seller for the proper execution of this Agreement and transfer of the Assets to the Purchaser.
c. No damage or alteration of the Assets that would adversely affect their value will occur between the date this Agreement is signed and the Closing Date.
d. The Seller will execute and deliver bills of the sale for the Assets in the favor of the Purchaser.
f. The Seller will provide the Purchaser with complete information concerning the operation of the Seller, in order to put the Purchaser in a position to carry on in the place of the Seller.
X. Conditions Precedent Not Satisfied
1. If either Party fails to satisfy any condition precedent as set out in this Agreement on or before the Closing Date and the opposite Party does not waive that condition precedent, then this Agreement will be null or void and any deposits will be returned to the Purchaser and there will be no further liability between the Parties.
XI. Notices
1. Any notices or deliveries required in the performance of this Agreement will be deemed completed when hand-delivered, delivered by agent, or seven days after being placed in the post, postage prepaid, to the Parties at the addresses contained in this Agreement or as the Parties may later designate in writing.
XII. Expenses and Costs
1. The Parties agree to pay all their own costs and expenses in connection with this Agreement.
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XIII. Confidentiality
1. The Seller and the Purchaser will hold confidential all information (the “Confidential Information”) pertaining to this Agreement including, but not limited to, the terms of this Agreement, the Purchase Price, the Parties to this Agreement, the subject matter of this Agreement as well as any written or oral information obtained about the respective Parties that is not currently in the public domain. Confidential Information will not include the following:
a. Information generally known in the respective industries of the Purchase and the Seller.
b. Information that enters the public domain through no fault of the Purchaser or the Seller.
c. Information that is independently created by the Purchaser or the Seller respectively without direct or indirect use of the information obtained during the course of negotiations in this Agreement.
d. Information that is rightfully obtained by the Purchaser or the Seller from the third party who has the right to transfer or disclose the information.
2. The confidentiality restrictions in this Agreement will continue to apply after the Closing Date of this Agreement without any limit in time.
XIV. Mediation and Arbitration
1. In the event a dispute arises in connection with this Agreement, the Parties will attempt to resolve the dispute through friendly consultation.
2. If the dispute is not resolved within a reasonable period, then any or all outstanding issues may be submitted to mediation in accordance with any statutory rules of mediation. If mediation is not successful, any outstanding issues will be submitted to final and binding arbitration in accordance with the laws of the State of New York.
XV. Severability
1. The Parties acknowledge that this Agreement is reasonable, valid, and enforceable; however, if any part of this Agreement is held by a court of competent jurisdiction to be invalid, it is the intent of the Parties that such provision to be reduced in scope only to the extent deemed necessary to render the provision reasonable and enforceable and the remainder of the provisions of this Agreement will in no way be affected or invalidated as a result.
2. When any provision in this Agreement is found to be unenforceable, the Purchaser and the Seller will then make reasonable efforts to replace the invalid or unenforceable provision with valid and enforceable substitute provision, the effect of which is as close as possible to the intended effect of the original invalid or unenforceable provision.
XVI. Governing Law
1. This Agreement will be governed by and construed in accordance with the laws of the State of New York.
XVII. Jurisdiction
1. The courts of the State of New York are to have jurisdiction to settle any dispute arising in connection with this Agreement.
XVIII. General Provisions
1. This Agreement contains all terms and conditions agreed to by the Parties. Statements or representations which may have been made by any Party to this Agreement in the negotiation stages of this Agreement may in some way be inconsistent with the final written Agreement. All such statements are declared to be f no value to either Party. Only the written terms of this Agreement will bind the Parties.
2. This Agreement may only be amended or modified by a written instrument executed by all Parties.
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3. A waiver by one Party of any right benefit provided in this Agreement does not infer or permit a further waiver of that right or benefit, nor does it infer or permit a river or any other rights or benefit provided in this Agreement.
4. This Agreement will not be assigned either in whole or in part by any Party without the written consent of the other Party.
5. This Agreement will pass to the benefit of and be binding upon the Parties’ respective heirs, executors, administrators, successors, and permitted assigns.
6. All of the rights, remedies, and benefits provided in this Agreement will be cumulative and will not be exclusive of any other such rights, remedies, and benefits allowed by law or equity.
7. Headings are inserted for the convenience of the Parties only and are not to be considered when interpreting this Agreement. Words in the singular mean and include the plural and vice versa. Words in the masculine gender include the feminine gender and vice versa. Words in the neutral gender include the masculine gender and the feminine gender and vice versa.
IN WITNESS WHEREOF the Parties have duly affixed their signatures under hand and seal on the date first above written
Guuf LLC (Seller) | AppSoft Technologies, Inc. (Purchaser) | |||
/s/ Nathan Cavanaugh | /s/ Brian Kupchik | |||
Nathan Cavanaugh, Sole Member and Manager | Brian Kupchik, CEO | |||
Address: | 1000 N West St #1200 | Address: | 1225 Franklin Avenue, Suite 325 | |
Wilmington, DE 19801 | Garden City, NY 11530 | |||
Email: | nate@guuf.com | email: | bkupchik@appsofttechnologies.com |
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Exhibit 99.2
ASSIGNMENT AND TRANSFER AGREEMENT
This Assignment and Transfer Agreement (“Agreement”) is entered into this 10 th day of June, 2016 by and between Marc Seal (“ Mr. Seal ”), and AppSoft Technologies, Inc., a Nevada corporation (“ AppSoft ”) (AppSoft and Mr. Seal each, a “ Party ;” together, the “ Parties ”).
RECITALS
WHEREAS, Mr. Seal has conceived and developed certain concepts, artwork, story lines and related computer software in connection with a computer game titled “CryptoGene,” for mobile application; and
WHEREAS, Mr. Seal desires to transfer to AppSoft, and AppSoft desires to receive from Mr. Seal, ownership of all of Mr. Seal’s Intellectual Property and Intellectual Property Rights (each as defined below) in CryptoGene; and
WHEREAS, the Parties are party to a Consulting Agreement of even date herewith pursuant to which Mr. Seal has agreed to provide certain software development and other consulting services to AppSoft for the consideration provided therein; and
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which hereby is acknowledged, and of the mutual promises contained in this Agreement, the Parties hereby agree as follows:
AGREEMENT
1. Definitions
1.1. “ Assigned Property ” means the property related to CryptoGene listed in Exhibit A and all Intellectual Property and Intellectual Property Rights forming a part of, embodied, in or necessary for use of the property.
1.2. “ CryptoGene ” means the game software being developed under such working title and shall include any products or services in any format offered or published derived from the Intellectual Property underlying CryptoGene, whether or not released under such name or under a different name.
1.3. “ Intellectual Property ” means, without limitation: all proprietary ideas, concepts, literary works, works of authorship, story lines (including all stories, plots, characters, characterizations, dialogue, treatments, drafts revisions and other adaptations thereof whether heretofore or hereafter written by Mr. Seal or any other person), audiovisual works, collective works, artwork, patentable ideas, copyrights and/or trade secrets, computer programs and software, compilations, databases, derivative works, maskworks, and sound recordings, including without limitation algorithms, ideas, designs, formulas, know-how, methods, processes, programs, prototypes, systems, and techniques, (“ Works of Authorship ”); and all products and services, schematics, research and development, marketing, and current or future business plans and models, including all technology and other intellectual property, regardless of form, including without limitation, inventions and discoveries, improvements, machines, methods, and processes and new uses for any of the preceding items (“ Inventions ”); words, names, symbols, devices, designs, and other designations, and combinations of the preceding items, used to identify or distinguish CryptoGene or any derivative work thereof or any group, product, or service related thereto or to indicate a form of certification, including without limitation logos, product designs, and product features (“ Trademarks ”); in each of the foregoing cases, whether existing and/or contemplated, published and unpublished, tangible or intangible, relating to CryptoGene.
1.4. “ Intellectual Property Rights ” means all rights in, arising out of, or associated with Intellectual Property in any jurisdiction, including without limitation: rights in, arising out of, or associated with Works of Authorship, including without limitation rights in maskworks and databases and rights granted under the Copyright Act (“ Copyrights ”); rights in, arising out of, or associated with Inventions, including without limitation rights granted under the Patent Act (“ Patent Rights ”); rights in, arising out of, or associated with Trademarks, including without limitation rights granted under the Lanham Act (“ Trademark Rights ”); rights in, arising out of, or associated with Confidential Information, including without limitation rights granted under the Uniform Trade Secrets Act (“Trade Secret Rights”); rights in, arising out of, or associated with a person’s name, voice, signature, photograph, or likeness, including without limitation rights of personality, privacy, and publicity (“ Personality Rights ”); rights of attribution and integrity and other moral rights of an author (“ Moral Rights ”); and rights in, arising out of, or associated with domain names (“ Domain Name Rights ”).
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2. Assignment.
2.1. Assignment . Subject to the provisions of Section 2.2 , Mr. Seal hereby irrevocably grants, conveys, transfers and assigns to AppSoft and its successors, by execution hereof, all of his worldwide right title and interest in and to the Assigned Property, including any right to use or disseminate CryptoGene as a mobile application or in any other medium (including all other audio-visual rights, print and allied and incidental rights), all advertising, publication and promotion rights with respect to any part of CryptoGene or any adaptation or version thereof, and all merchandising, commercial tie-in, publishing and exploitation rights, to be held and enjoyed by AppSoft and its successors and assigns. Mr. Seal further irrevocably grants, conveys and assigns to AppSoft, by execution hereof, all of its worldwide right, title and interest in and to any and all causes of action and rights of recovery for past infringement or misappropriation of the Assigned Property, to be held and enjoyed by AppSoft and its successors and assigns. AppSoft hereby accepts the foregoing grants, conveyances and assignments. Mr. Seal hereby waives and agrees not to enforce all Moral Rights and all Personality Rights that Mr. Seal may have in the Assigned Property.
2.2. Reversion of Rights . The assignment of the Assigned Property and other rights granted by Mr. Seal to AppSoft hereunder shall not include the right for Appsoft to assign or otherwise transfer ownership of the assigned property without the explicit written consent of Mr. Seal. The assignment of the Assigned Property and other rights granted by Mr. Seal to AppSoft hereunder shall revert from AppSoft to Mr. Seal without limitation, restriction, or additional terms in the event that AppSoft does not release a publically available version of CryptoGene or a product related thereto or derived therefrom or otherwise discontinues active development of CryptoGene for a term exceeding two (2) years from the date of this Agreement. Any such reversion of rights to Mr. Seal shall be achieved by agreement similar in form and content to this Agreement upon reaching the end of the two (2) year term.
2.3. Exclusive Ownership . Without limiting the foregoing, AppSoft will have the exclusive right to commercialize, prepare and sell products based upon, license, sublicense, prepare derivative works from, and otherwise use and exploit the Transferred Software and Transferred Intellectual Property Rights. Mr. Seal hereby waives any and all moral rights, including any right to identification of authorship or limitation on subsequent modification, that Mr. Seal (or its employees, agents or consultants) has or may have in any Transferred Software or Transferred Intellectual Property Rights.
2.4. Delivery . Promptly after the date hereof, Mr. Seal shall deliver to AppSoft:
(a) the Assigned Property via FTP (File Transfer Protocol) download, as more particularly described in Exhibit A ;
(b) an Assignment of Copyright as set forth in Exhibit B .
2.5. No Assumed Liabilities . The Parties agree that AppSoft shall not assume any liabilities associated with the Transferred Software or the Transferred Intellectual Property Rights that arose prior to or on the date hereof, regardless of whether any such liabilities are determined or asserted after the date hereof.
3. Consideration. In consideration for the assignments made by Mr. Seal under this Agreement, AppSoft will pay to Mr. Seal the following royalties:
(a) With respect to all CryptoGene and CryptoGene related or derived game software, the royalties set forth on Exhibit C, which shall under no circumstances be less than 5% of Net Profits (as defined below).
(b) With respect to all novels, comics, graphic novels, short stories and other printed media, AppSoft shall pay to Consultant a perpetual royalty equal to 10% of Net Profits.
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(c) With respect to any non-videogame CryptoGene related products and properties not covered in subsection 3(a) or (b), AppSoft shall pay to Consultant a perpetual royalty equal to 3% of Net Profits.
(d) For purposes of this Agreement, the term “Net Profits” means net profits generated by AppSoft from sales of the referenced item calc ulated, for all purposes, in accordance with generally accepted accounting principles .
(e) The royalties provided for in this Agreement shall be payable commencing as of the date that the Company commences generating revenue from a reference product. For purposes of subsection 3(a), the “release” date shall be determined by an official publically announced release build and date in which the product is available to the general consumer market. By way of clarification, for purposes of subsection 3(a) only, “release” will not be determined by any testing phases such as Alpha or Beta builds, whether private or public and includes the development phase, as contemplated by the royalty payable in the first row of the table appearing in Exhibit C. For purposes of subsection 3(b) and (c), “release” is defined by availability of the item or content for purchase, rental, download, or viewing to the general consumer market accompanied with an official publically announced release date, in each respective market (platform and region).
(f) All payments to Mr. Seal under this Agreement shall be made within ninety (90) days of the conclusion of the fiscal quarter.
(g) Upon thirty (30) days’ prior written notice from Mr. Seal, AppSoft shall permit an independent certified public accounting firm selected by Mr. Seal and reasonably acceptable to AppSoft, at Mr. Seal’s expense, to have access during normal business hours to examine the pertinent books and records of AppSoft as may be reasonably necessary to verify the accuracy of the royalties payable to Mr. Seal hereunder. The examination shall be limited to the pertinent books and records for any year ending not more than twenty-four (24) months prior to the date of such request. An examination under this Section 3(g) shall not occur more than once in any calendar year. The accounting firm shall disclose to Mr. Seal only whether the royalties payable to Mr. Seal are correct or incorrect and the specific details concerning any discrepancies. No other information shall be provided to Mr. Seal. Any such accounting firms shall sign a confidentiality agreement (in form and substance reasonably acceptable to AppSoft) as to any of AppSoft’s confidential information that such accounting firms are provided, or to which they have access, while conducting any audit pursuant to this Section 3(g). If such accounting firm correctly concludes that additional royalties were owed during such period, AppSoft shall pay such additional royalties within sixty (60) days of the date Mr. Seal delivers to AppSoft such accounting firm’s written report so correctly concluding. If such underpayment exceeds three percent (3%) of the sums correctly due Mr. Seal then the reasonable fees charged by such accounting firm for the work associated with the underpayment audit shall be paid by AppSoft. For clarity, in all other circumstances the fees charged by such accounting firm for the work associated with the underpayment audit shall be paid by Mr. Seal. Any overpayments by AppSoft will be credited against future royalty obligations or at Licensee’s request, promptly refunded to Licensee.
4. Creative Control. Mr. Seal will maintain creative control over all products and properties derived from the Assigned Property; provided, however, that in the event the Parties disagree with respect to the creative direction or the products or properties deriving from the Assigned Property proposed by Mr. Seal, if the Parties cannot agree upon a mutual solution, the Parties agree that a vote as to the creative direction and the products or properties deriving from the Assigned Property proposed by Mr. Seal shall be subject to a vote of Mr.. Seal, Brian Kupchik, the President of AppSoft, and Joseph Cheng, a majority of which shall prevail. Any vote may be taken on three (3) days’ prior written notice of the parties (unless otherwise waived in writing by any Party) to email addresses to be provided promptly after the date hereof. Once a vote is final, a decision may not be revisited without reasonable cause.
5. Representations and Warranties. Mr. Seal represents and warrants to AppSoft that: he exclusively owns all right, title, and interest in and to the Assigned Property; he has not granted and will not grant any licenses or other rights to the Assigned Property to any third party; the Assigned Property is free of any liens, encumbrances, security interests, and restrictions on transfer; to Mr. Seal’s knowledge, the Intellectual Property that is assigned as part of the Assigned Property does not infringe Intellectual Property Rights of any third party; and there are no legal actions, investigations, claims, or proceedings pending or threatened relating to the Assigned Property.
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6. Indemnification. Mr. Seal will defend, indemnify, and hold harmless AppSoft, and AppSoft’s officers, directors, shareholders, successors, and assigns, from and against all losses, liabilities, and costs including, without limitation, reasonable attorneys’ fees, expenses, penalties, judgments, claims and demands of every kind and character that AppSoft, its officers, directors, shareholders, successors, and assigns may incur, suffer, or be required to pay arising out of, based upon, or by reason of: the breach by Mr. Seal of any of the representations or warranties made by Mr. Seal under this Agreement; Mr. Seal’s use of the Assigned Property prior to the date of this Agreement; or Mr. Seal’s failure to perform its obligations under this Agreement.
7. Further Assurances.
7.1. Assistance . Mr. Seal will take all action and execute all documents as AppSoft may reasonably request to effectuate the transfer of the Assigned Property and the vesting of complete and exclusive ownership of the Assigned Property in AppSoft. In addition, Mr. Seal will, at the request and sole cost and expense of AppSoft, but without additional compensation, promptly sign, execute, make, and do all such deeds, documents, acts, and things as AppSoft may reasonably require:
(a) to apply for, obtain, register, maintain and vest in the name of AppSoft alone (unless AppSoft otherwise directs) Intellectual Property Rights protection relating to any or all of the Assigned Property in any country throughout the world, and when so obtained or vested, to renew and restore the same;
(b) to defend any judicial, opposition, or other proceedings in respect of such applications and any judicial, opposition, or other proceedings or petitions or applications for revocation of such Intellectual Property Rights; and
(c) to assist AppSoft with the defense and enforcement of its rights in any registrations issuing from such applications and in all Intellectual Property Rights protection in the Intellectual Property.
7.2. Power of Attorney . If at any time AppSoft is unable, for any reason, to secure Mr. Seal’s signature on any letters patent, copyright, or trademark assignments to any or all of the Assigned Property, whether because of Mr. Seal’s unwillingness, or for any other reason whatsoever, Mr. Seal hereby irrevocably designates and appoints AppSoft and its duly authorized officers and agents as its agents and attorneys-in-fact, to act for and on its behalf and stead to execute and file any and all such applications, registrations, and other documents and to do all other lawfully permitted acts to further the prosecution thereon with the same legal force and effect as if executed by Mr. Seal for the sole purpose of securing rights to the covered assigned property. This Power of Attorney shall not extend beyond this purpose or allow AppSoft to further transfer or assign the assigned property to other parties without the additional explicit written consent of Mr. Seal.
8. Miscellaneous.
8.1. Injunctive Relief . A breach of this Agreement may result in irreparable harm to AppSoft and a remedy at law for any such breach will be inadequate, and in recognition thereof, AppSoft will be entitled to injunctive and other equitable relief to prevent any breach or the threat of any breach of this Agreement by Mr. Seal only by showing or proving actual damages.
8.2. No Agency . Each Party shall in all matters relating to this Agreement act as an independent contractor. Neither Party shall have authority, nor shall either Party represent that it has any authority, to assume or create any obligation, express or implied, on behalf of the other, or to represent the other Party as agent or employee or in any other capacity. Neither execution nor performance of this Agreement shall be construed to have established any agency, joint venture, or partnership.
8.3. Binding on Successors . This Agreement will inure to the benefit of, and be binding upon, the parties, together with their respective representatives, successors, and assigns, except that Mr. Seal may not assign this Agreement without the consent of AppSoft. AppSoft may assign this Agreement in its discretion.
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8.4. Notices . Any notice required or permitted by this Agreement shall be in writing and shall be deemed sufficient upon delivery, when delivered personally or by overnight courier or sent by email or fax (upon customary confirmation of receipt), or forty-eight (48) hours after being deposited in the U.S. mail as certified or registered mail with postage prepaid, addressed to the party to be notified at such party’s address or fax number as set forth on Schedule A hereto or as subsequently modified by written notice.
8.5. Governing Law and Jurisdiction . This Agreement will be governed by, and construed in accordance with, the laws of the State of New York without reference to its conflict of laws provisions. With respect to any dispute arising out of or related to this Agreement, the parties consent to the exclusive jurisdiction of, and venue in, the federal and state courts located in New York County, New York.
8.6. Amendments . This Agreement may not be amended, modified, altered or supplemented other than by means of a written instrument duly executed and delivered on behalf of Mr. Seal and AppSoft.
8.7. Waiver . No failure on the part of a Party to exercise any power, right, privilege, or remedy under this Agreement, and no delay on the part of any Party in exercising any power, right, privilege, or remedy under this Agreement, will operate as a waiver of such power, right, privilege, or remedy; and no single or partial exercise of any such power, right, privilege, or remedy will preclude any other or further exercise thereof or of any other power, right, privilege, or remedy. No Party shall be deemed to have waived any claim arising from this Agreement, or any power, right, privilege or remedy under this Agreement, unless the waiver of such claim, power, right, privilege or remedy is expressly set forth in a written instrument duly executed and delivered on behalf of such Party; and any such waiver will not be applicable or have any effect except in the specific instance in which it is given.
8.8. Severability . If, for any reason, a court of competent jurisdiction finds any provision of this Agreement, or portion thereof, to be invalid or unenforceable, such provision of the Agreement will be enforced to the maximum extent permissible so as to effect the intent of the Parties, and the remainder of this Agreement will continue in full force and effect. The Parties agree to negotiate in good faith an enforceable substitute provision for any unenforceable provision that most nearly achieves the intent and economic effect of the unenforceable provision. Notwithstanding the foregoing, if a court of competent jurisdiction determines that any restriction on any license granted herein is invalid or unenforceable, then the license grants to which such restriction relates shall terminate automatically.
8.9. Entire Agreement . This Agreement is the entire agreement concerning the subject matter hereof. It supersedes all prior and contemporaneous agreements, assurances, representations, and communications between the parties.
8.10. Assignment . AppSoft may assign all of its assets and other rights acquired hereunder in their entirety and in whole, and in part, provided the successor agrees in writing to be bound by all of the obligations set forth in this Agreement in the same manner as AppSoft. Mr. Seal shall have no right to assign or transfer this Agreement, or any of its rights hereunder, without the prior permission of AppSoft, which may be granted or withheld at AppSoft’s sole discretion. Any assignment in violation of this Section 8.10 is null and void.
8.11. Counterparts . This Agreement may be executed in counterparts, each of which shall be deemed an original, but all of which together will constitute one and the same instrument.
[Signature page follows.]
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IN WITNESS WHEREOF, the Parties have executed this Agreement on the date first set forth above.
APPSOFT TECHNOLOGIES, INC. | MARC A. SEAL | ||
By: | |||
Brian Kupchik, Chief Executive Officer | (Signature) |
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SCHEDULE A
NOTICE INFORMATION
APPSOFT TECHNOLOGIES, INC. | MARC A. SEAL | ||
Brian Kupchik, Chief Executive Officer | |||
Address: | 1225 Franklin Avenue, | Address: 246 N Rutherford Ave | |
Suite 325 | Massapequa, NY, 11758 | ||
Garden City, NY 11530 | |||
email: | MarcSeal20@gmail.com | ||
email: bkupchik@appsofttechnologies.com |
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EXHIBIT A
ASSIGNED PROPERTY
Complete “CryptoGene” intellectual property (Any active and applicable trademarks, copyrights, patents, works, etc.)
CryptoGene website (www.CryptoGene.com)
CryptoGene software (Video Game for mobile and computer platforms)
CryptoGene: Origins (Work in Progress 50 Page Graphic Novel)
CryptoGene Short Story (Work in Progress 10 Page Graphic Novel)
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EXHIBIT B
ASSIGNMENT OF COPYRIGHT
For good and valuable consideration, the receipt of which is hereby acknowledged, Marc A. Seal, an individual having an address at 246 N Rutherford Avenue, Massapequa, NY, 11758 (hereafter referred to as “Mr. Seal”), hereby grants and assigns to AppSoft Technologies, Inc., located at 1225 Franklin Avenue, Suite 325, Garden City, NY 11530 (hereinafter referred to as “AppSoft”) all right, title and interest whatsoever, throughout the world, in and under the copyright on the work entitled CryptoGene to have and to hold the same, unto AppSoft, its successors and assigns, for the full duration of all such rights, and any renewals and extensions thereof.
This assignment is made pursuant to, and is subject to all of the terms of the Assignment and Transfer Agreement between Mr. Seal and AppSoft, dated June ___, 2016.
IN WITNESS THEREOF, I have hereunto set hand and seal this
ASSIGNOR: | ||
MARC A. SEAL | ||
Date: June___, 2016 | /s/ Marc Seal | |
ASSIGNEE: | ||
APPSOFT TECHNOLOGIES, INC. | ||
Date: June___, 2016 | /s/ Brian Kupchik | |
Brian Kupchik | ||
President |
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State of New York
S.S.
County of ________________
On this ___________day of June, 2016, before me personally came _______________________, to me known to be the person who is described in and who executed the foregoing assignment instrument and acknowledged to me that he executed the same of his own free will for the purpose therein expressed.
Expires: | ||||
Notary Public |
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EXHIBIT C
ROYALTIES SCALE
Period | Royalty Amount | |||
Pre-Release (development) | 10% | |||
Year 1 | 10% | |||
Year 2 | 8% | |||
Year 3 | 7% | |||
Year 4 | 6% | |||
Year 5+ | 5% | |||
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Exhibit 99.3
MASTER SERVICES AGREEMENT
THIS MASTER SERVICES AGREEMENT (“Agreement”) is entered into on June 10 th , 2016 (the “Effective Date”), between David Sotir (“Developer”), with its principal place of business located at 4004 S Louise Ave, Apt 108, Sioux Falls, SD and AppSoft Technologies, Inc (“Client”), with its principal place of business located at 1225 Franklin Ave Suite 325 Garden City, NY 11530.
1. | DEFINITIONS |
In this Agreement, unless otherwise expressly defined or the context otherwise requires:
A. | “Agreement” means this services agreement, any Statement of Works and all related amendments. |
B. | “Data” means all information in hard copy or in electronic form, which is used in the performance of Services under this Agreement. |
C. | “Service” means a service as specified in a Statement of Work, which Developer provides to Client under this Agreement. |
D. | “Statement of Work” means the mutually signed Exhibits attached to this Agreement, or the quote or fee estimate as amended or modified between the parties from time to time, which describes a Service to be provided by Developer to Client and any additional terms and conditions relating specifically to such Service. |
E. | “Software” means computer programs, regardless of format or medium, their documentation and specifications. |
2. | SERVICES |
A. | Agreement to Perform Services: Developer agrees to perform and Client agrees to accept the Services described in the Statement of Work in accordance with the terms and conditions of this Agreement. |
B. | Change Orders: Additions or modifications to the Services may be accomplished through the use of a “Change Order”. A Change Order must be in writing and signed by each party in order to be effective. The procedure for creating a Change Order is as follows: (a) Client shall submit a written request to Developer specifying the additions or modifications to the Services desired (the “Change Notice”); and (b) if Developer is prepared to add to or modify the Services as requested by the Client, it shall prepare and submit an amendment to the Statement of Work (the “Change Order”) to Client which shall include a description of the changes to the Services and any additional fees. On obtaining the Client’s written signature to the Change Order, the Change Order will become part of the Statement of Works. |
C. | Right to Subcontract: Developer may not subcontract to any third party any of the Services to be provided to the Client hereunder, without the written consent of the Client. In the event Developer subcontracts any of the Services to a third party service provider, Developer shall be and remain fully responsible for any acts of such subcontractors. |
D. | No Exclusivity: Client acknowledges that nothing in this Agreement obliges Developer to devote all or substantially all of its time or attention to the Services and that nothing shall restrict or prevent Developer from entering into agreements with other persons concerning the provision of similar services. |
3. | TERMS, TERMINATION AND SUSPENSION OF SERVICE |
A. | Term: The term of this Agreement shall commence on the Effective Date and shall continue thereafter until the later of completion of the Services provided for in this Agreement (the “Term”), unless terminated earlier as provided herein. |
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B. | Termination: Client may terminate this Agreement without cause upon thirty (30) days written notice. Either party may terminate this Agreement for material breach, provided, however, that the terminating party has given the other party at least fourteen (14) days written notice of and the opportunity to cure the breach. Termination for breach will not alter or affect the terminating party’s right to exercise any other remedy for breach. Additionally, either party may terminate this Agreement effective immediately upon written notice if: (a) all or a substantial portion of the assets of the other party are transferred to an assignee for the benefit of creditors to a receiver or to a trustee in bankruptcy; (b) a proceeding is commenced by or against the other party for relief under the bankruptcy or similar laws, and such proceeding is not dismissed within sixty (60) days; or (c) the other party is adjudged bankrupt. |
With respect to any termination of this Agreement, whether without cause by Client or for any other reason, and subject to Client’s payment of the required fees for Work provided up to the date of termination, Developer shall promptly deliver to Client all Work, including the Software, performed by Developer up to the date of termination, even if such Work and/or Software is not yet completed at such time.
4. | PRICE AND PAYMENT TERMS |
Client will pay Developer for the Work at the price and on the terms set forth in corresponding Statement of Work. Developer will not be liable for any interest or penalties incurred due to late payment or nonpayment of these taxes by Client, but instead Client will be fully responsible for payment of said interest and penalties.
5. | DEVELOPER RESPONSIBILITIES AND REPRESENTATIONS |
A. | Perform the Services defined within each Statement of Work to the best of its ability and with the degree of care, diligence and skill that a reasonably prudent person would exercise in comparable circumstances; |
B. | Liaise with Client through Client’s coordinator on matters related to the Services; |
C. | Notify Client, whenever practicable, if expenses beyond the defined charges within a Service Schedule may be incurred; |
D. | Invoice Client according to the terms of this Agreement and the applicable Statement of Work for the Services performed; and |
E. | Subject to Section 8, proceed according to Client’s reasonable instructions for the disposition of Client’s Data and supplies on the termination of any Statement of Work. |
6. | CLIENT RESPONSIBILITIES AND REPRESENTATIONS |
A. | Provide all necessary Data and any special forms or other required materials or information to Developer on schedule or in a timely fashion to enable Developer to provide the Services. |
B. | Ensure the accuracy, legibility, and completeness of all Data supplied to Developer and be solely responsible for the results obtained from Client’s use of any of the Services. |
C. | Liaise with Developer through a coordinator Client will identify, on matters related to the Services and authorize that coordinator to make decisions on behalf of Client in relation to the implementation of this Agreement and the Services and any changes thereto. |
D. | Comply with Developer’s security and operating procedures (as may be revised or amended by Developer from time to time) when Client’s employees or agents are interfacing with Developer installed systems. |
E. | Control, and be responsible for the use of, account information, user ids and passwords related to the Services and, where required, when interfacing with Developer installed systems. |
7. | SOFTWARE AND INTELLECTUAL PROPERTY RIGHTS |
A. | Subject to Client’s payment to Developer of the compensation as provided in this Agreement, Developer’s Work (including the Software, Technical Design and the Documentation) will be deemed a “commissioned work” and “work made for hire” to the greatest extent permitted by law and Client will be the sole owner of the Software and/or any works derived therefrom. To the extent that Developer’s Work is not properly characterized as “work made for hire,” Developer hereby irrevocably assigns to Client all right, title and interest in and to Developer’s Work and the Software (including but not limited to the copyright therein), and any and all ideas and information embodied therein, in perpetuity and throughout the world. Except to the extent otherwise provided in this Agreement, Developer retains no right, ownership, or title in the Developer’s Work, Software, Technical Design and the Documentation, or any related copyrights, trademarks, patents, trade secrets, Confidential Information, or any other proprietary rights obtained on the Software, Technical Design or the Documentation. The parties agree that the Software, Technical Design and the Documentation, and all associated intellectual property rights are being sold in their entirety to Client for whatever use Client desires. Nothing in this Agreement may be construed to convey a mere license to Client. Developer agrees to cooperate with Client, without additional compensation, in providing information or performing any necessary actions to register and secure any copyrights, patents, or trademarks or other intellectual property rights for the benefit of Client. Upon request, each party hereto shall execute and deliver any instruments, assignments, confirmations of assignments, or other written instruments as the other party may request in the ordinary course of business related to the Software, Technical Design and the Documentation or the rights or obligations set forth herein. |
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B. | Developer also grants to Client a royalty free, fully-paid, non-exclusive, perpetual, worldwide right and license in and to any other underlying software or platform used by Developer, separate and apart from the Software itself, in performing the Work and completing the Software as may be needed from time to time by Client in order to update the Software and/or make the Software perform according to Client’s needed specifications from time to time. Client hereby grants to Developer a perpetual, royalty-free, worldwide, non-exclusive license in the Software on an internal basis only for the sole purpose of allowing Developer to perform its obligations under this Agreement and for no other purpose. |
8. | CONFIDENTIALITY |
A. | All information relating to Client that is known to be confidential or proprietary, or which is clearly marked as such, or which Client considers in its discretion to be confidential or proprietary, including without limitation this Agreement and the fact of Developer’s engagement by Client hereunder (collectively, “Client’s Confidential Information”), will be held in confidence by Developer and will not be used by Developer except to the extent that such use is reasonably necessary to the performance of Developer’s Work. Developer also will not disclose Client’s Confidential Information to any other person or party except as may be expressly authorized by Client in writing prior to such disclosure. |
B. | All information relating to Developer that is known to be confidential or proprietary, or which is clearly marked as such, or which Developer considers in its discretion to be confidential and proprietary, including without limitation this Agreement (collectively, “Developer’s Confidential Information”), will be held in confidence by Client and will not be used by Client except to the extent that such use is reasonably necessary to the performance of Client’s duties and obligations under this Agreement. Client also will not disclose Developer’s Confidential Information to any other person or party except as may be expressly authorized by Developer in writing prior to such disclosure. Notwithstanding the foregoing, the parties agree that Developer’s Confidential Information shall not include the Software. |
C. | These obligations of confidentiality will extend for a period of three (3) years after the termination of this Agreement, but will not apply with respect to information that is independently developed by the parties, lawfully becomes a part of the public domain, or of which the parties gained knowledge or possession free of any confidentiality obligation. If either party is compelled by any law or authority with jurisdiction over such party to disclose the other party’s Confidential Information, the party being compelled shall limit the disclosure as much as practicable under the circumstances, and shall immediately notify the other party upon having knowledge of the law or authority requiring disclosure of the Confidential Information so that such other party may intervene as necessary to protect its rights and interests in and to such Confidential Information. |
D. | Client and Developer acknowledge that any breach of Section 8 by a receiving party will irreparably harm the disclosing party. Accordingly, in the event of a breach, the disclosing party is entitled to promptly seek injunctive relief in addition to any other remedies that it may have at law or in equity. |
9. | DISCLAIMER OF WARRANTIES, LIMITATION OF LIABILITY, INDEMNIFICATION |
A. | THESE WARRANTIES SET FORTH HEREIN ARE EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE AND ANY ORAL OR WRITTEN REPRESENTATIONS, PROPOSALS OR STATEMENTS MADE ON OR PRIOR TO THE EFFECTIVE DATE OF THIS AGREEMENT. DEVELOPER EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES NOT STATED HEREIN. |
B. | Developer Indemnification: Developer shall indemnify and hold Client harmless from any loss, claim, or damage (including attorney’s fees) to persons or property arising out of this Agreement, the Software, or the Services to the extent that the loss, claim, or damage is caused by Developer’s breach of any term of this Agreement or the intentional act of Developer. This indemnity survives termination of this Agreement. |
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C. | Indemnification against Infringement: In performing services under this Agreement, Developer agrees not to design, develop, or provide to Client any items that infringe one or more patents, copyrights, trademarks or other intellectual property rights (including trade secrets), open source licenses, privacy, or other proprietary rights of any person or entity. If Developer becomes aware of any such possible infringement in the course of performing any work hereunder, Developer shall immediately so notify Client in writing. Developer agrees to indemnify, defend, and hold Client, its officers, members, employees, representatives, agents, and the like harmless for any such alleged or actual infringement and for any liability, debt, or other obligation arising out of or as a result of any infringement on third party’s proprietary contractual rights or rights in its patent, copyright, trade secret, or trademark rights valid at common law or under state or federal law or any third party rights in its patents existing on the date the Software, Technical Design or the Documentation was accepted by Client or claims, damages, or liabilities relating to (i) this Agreement (including any changes or amendments thereto), (ii) the performance of the Agreement, or (iii) the Deliverables. This indemnification will be effective so long as Client promptly notifies Developer of any such claim and provides assistance and information to Developer that it reasonably requests to help defend against such claims. This indemnification will not cover any claims resulting from Client’s unauthorized modification of the Software. This indemnity survives termination of this Agreement. |
D. | Client Indemnification: Except as provided herein, Client shall indemnify and hold Developer harmless from any loss, claim, or damage (including attorney’s fees) to persons or property arising out of this Agreement to the extent that the loss, claim, or damage is caused by Client’s breach of any term of this Agreement or the intentional act of Client. This indemnity survives termination of this Agreement. |
E. | Limitation of Liability: Except for claims related to confidentiality or infringement of intellectual property rights, neither party will be liable to the other for special, indirect or consequential damages incurred or suffered by the other arising as a result of or related to the performance of Developer’s Work, whether in contract, tort or otherwise, even if the other has been advised of the possibility of such loss or damages. |
10. | RELATION OF PARTIES |
The performance by Developer of its duties and obligations under this Agreement will be that of an independent contractor, and nothing in this Agreement will create or imply an agency relationship between Developer and Client, nor will this Agreement be deemed to constitute a joint venture or partnership between the parties.
11. | EMPLOYEE SOLICITATION/HIRING; NON-COMPETITION |
A. | During the period of this Agreement and for two (2) years thereafter, neither party will directly or indirectly solicit or offer employment to or hire any individual known by the party to be an employee, former employee, subcontractor or former subcontractor of the other party; provided, however, that notwithstanding the foregoing, either party hereto may hire any individual who responds to a general advertisement or solicitation for employment, or who seeks out employment with such party, in either case as long as the hiring party does not violate the foregoing restriction provided above in this sentence. The terms “former employee” and “former subcontractor” will include only those employees or subcontractors of either party who were employed or utilized by that party within six (6) months immediately prior to the alleged violation. |
B. | During the Term and for a period of three (3) years immediately following date of termination (regardless of whether termination is initiated by Developer or Client or caused by completion of the Term), neither Developer nor any of Developer’s owners, agents, employees, members, or managers shall, individually or collectively, as a participant in a partnership, sole proprietorship, corporation, limited liability company, or other entity, or as an operator, investor, shareholder, employee, partner, director, consultant, manager, or advisor of any such entity, or in any other capacity whatsoever, either directly or indirectly, enter into or participate in any business which is in direct or indirect competition with Client’s business worldwide. Further, except as expressly provided herein, Developer shall not utilize the Software, Documentation, or Technical Design for any external purposes; such use shall be limited to internal use related to the Services and Maintenance as provided herein. Developer shall not, independently or with a third party, develop, license, sell or distribute, or explore any opportunity to develop, license, sell or distribute any software substantially similar to the Software for any direct or indirect competitor of Client during the Term and for a period of three (3) years thereafter, or the third anniversary of the date of this Agreement, whichever occurs first. |
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C. | Developer acknowledges that the covenants and assurances made by Developer pursuant to this Section 11 were a material inducement to Client’s entry into this Agreement, and that Developer’s covenant not to compete is necessary to insure Client’s successful continuation of the Business, and that irreparable harm and damage will be done to Client in the event that Developer competes with Client in violation of this Section 11. Developer understands and agrees that the scope and duration of the covenants contained in this Section 11 are reasonable both in time and geographical area and are necessary to protect the legitimate business interests of Client. Developer further agrees that such covenants shall be regarded as divisible and shall be operative as to time and geographical area to the extent that they may be made so and, if any part of such covenants is declared invalid or unenforceable, the validity and enforceability of the remainder shall not be affected. |
12. | PUBLICITY AND USE OF NAME |
Without the prior written consent of the other party, neither party shall disclose the terms and conditions of this Agreement, except such disclosure may be made as is reasonably necessary to the disclosing party’s bankers, attorneys, or accountants or except as may be required by law. Developer shall not disclose or identify Client orally or in any of Developer’s advertising, publication, or other media, except with prior written consent of Client.
13. | ARBITRATION |
Any dispute arising under this Agreement will be subject to binding arbitration by a single Arbitrator with the American Arbitration Association (AAA), in accordance with its relevant industry rules, if any.
14. | GOVERNING LAW |
This Agreement shall be governed for all purposes by the laws of New York, without regard to conflict of laws principles. Any and all disputes arising out of or in connection with this Agreement, its performance or breach, shall be resolved by a court of competent jurisdiction in or serving New York County, New York, or in a U.S. District Court located in the State of New York. Each party hereby consents to the exclusive jurisdiction and venue of such courts, and to receive service of process by U.S. first class mail.
15. | ATTORNEYS’ FEES |
If any litigation or arbitration is necessary to enforce the terms of this Agreement, the prevailing party will be entitled to reasonable attorneys’ fees and costs.
16. | REMEDIES |
Except as otherwise provided herein, the rights and remedies of Developer and Client set forth herein with respect to failure of the other to comply with the terms of this Agreement including, without limitation, rights of full termination of this Agreement, are not exclusive, the exercise thereof shall not constitute an election of remedies and the aggrieved party shall in all events be entitled to seek whatever additional remedies may be available in law or in equity.
17. | SEVERABILITY |
If any term of this Agreement is found to be unenforceable or contrary to law, it will be modified to the least extent necessary to make it enforceable, and the remaining portions of this Agreement will remain in full force and effect.
18. | FORCE MAJEURE |
Neither party will be held responsible for any delay or failure in performance of any part of this Agreement to the extent that such delay is caused by events or circumstances beyond the delayed party’s reasonable control, such as, Acts of God (including fire, flood, earthquake, storm, hurricane or other natural disaster), war, invasion, act of foreign enemies, hostilities (regardless of whether war is declared), civil war, rebellion, revolution, insurrection, military or usurped power or confiscation, terrorist activities, nationalization, government sanction, blockage, embargo, labor dispute, or strike.
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19. | WAIVER AND MODIFICATION |
The waiver by any party of any breach of covenant will not be construed to be a waiver of any succeeding breach or any other covenant. All waivers must be in writing, and signed by the party waiving its rights. This Agreement may be modified only by a written instrument executed by authorized representatives of the parties hereto.
20. | ENTIRE AGREEMENT |
This Agreement, together with any attachments referred to herein, constitutes the entire agreement between the parties with respect to its subject matter, and supersedes all prior agreements, proposals, negotiations, representations or communications relating to the subject matter. Both parties acknowledge that they have not been induced to enter into this Agreement by any representations or promises not specifically stated herein.
IN WITNESS WHEREOF, the parties have executed this Agreement by their duly authorized representatives.
David Sotir [DEVELOPER] | APPSOFT TECHNOLOGIES, INC. [CLIENT] | |||
By: | /s/ David Sotir | By: | /s/ Brian Kupchik | |
Name: | David Sotir | Name: | Brian Kupchik | |
Title: | Developer | Title: | CEO |
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STATEMENT OF WORK (SOW)
THIS STATEMENT OF WORK (“Agreement”) is entered into on June 6 th , 2016 (the “Effective Date”), between David Sotir (“Developer”), and Appsoft Technologies, Inc. (“Client”) in accordance with the mutually signed Master Services Agreement entered into on June 10 th , 2016.
1. | FUNCTIONAL SCOPE AND REQUIREMENTS |
Functional scope and requirements shall be as directed by the Chief Executive Officer of the Company from time to time.
2. | PAYMENT, TERMS OF PAYMENT, AND PROFIT SHARING |
The total development cost is $7,000 USD. $1,750 USD will be paid upfront, a second installment of $1,750 will be paid at a half-way milestone which will be determined during development, and any remaining balance, estimated to be $3,500 USD will be paid upon completion delivery of the completed codebase.
3. | ACCEPTANCE OF SOW |
This SOW, in conjunction with the Master Service Agreement (MSA) and any/all other SOW(s) shall upon execution by both parties, constitute the complete and exclusive agreement between Client and Developer with respect to the consulting services described herein. Unless and until such mutual execution, neither party shall have any obligation to the other hereunder.
IN WITNESS WHEREOF, THE PARTIES HAVE AGREED TO THIS SOW AS EVIDENCED BY THEIR SIGNINGS BELOW.
David Sotir DEVELOPER] | APPSOFT TECHNOLOGIES, INC [CLIENT] | |||
By: | /s/ David Sotir | By: | /s/ Brian Kupchik | |
Name: | David Sotir | Name: | Brian Kupchik | |
Title: | Developer | Title: | CEO |
Exhibit 99.4
MASTER SERVICES AGREEMENT
THIS MASTER SERVICES AGREEMENT (“Agreement”) is entered into on June 10, 2016 (the “Effective Date”), between Gnomish Games (“Developer”), with its principal place of business located at 3680 Pomo Drive Reno, NV 89503 and Appsoft Technologies, Inc (“Client”), with its principal place of business located at 1225 Franklin Ave Suite 325 Garden City, NY 11530.
1. | DEFINITIONS |
In this Agreement, unless otherwise expressly defined or the context otherwise requires:
A. | “Agreement” means this services agreement, any Statement of Works and all related amendments. |
B. | “Data” means all information in hard copy or in electronic form, which is used in the performance of Services under this Agreement. |
C. | “Service” means a service as specified in a Statement of Work, which Developer provides to Client under this Agreement. |
D. | “Statement of Work” means the mutually signed Exhibits attached to this Agreement, or the quote or fee estimate as amended or modified between the parties from time to time, which describes a Service to be provided by Developer to Client and any additional terms and conditions relating specifically to such Service. |
E. | “Software” means computer programs, regardless of format or medium, their documentation and specifications. |
2. | SERVICES |
A. | Agreement to Perform Services: Developer agrees to perform and Client agrees to accept the Services described in the Statement of Work in accordance with the terms and conditions of this Agreement. |
B. | Change Orders: Additions or modifications to the Services may be accomplished through the use of a “Change Order”. A Change Order must be in writing and signed by each party in order to be effective. The procedure for creating a Change Order is as follows: (a) Client shall submit a written request to Developer specifying the additions or modifications to the Services desired (the “Change Notice”); and (b) if Developer is prepared to add to or modify the Services as requested by the Client, it shall prepare and submit an amendment to the Statement of Work (the “Change Order”) to Client which shall include a description of the changes to the Services and any additional fees. On obtaining the Client’s written signature to the Change Order, the Change Order will become part of the Statement of Works. |
C. | Right to Subcontract: Developer may not subcontract to any third party any of the Services to be provided to the Client hereunder, without the written consent of the Client. In the event Developer subcontracts any of the Services to a third party service provider, Developer shall be and remain fully responsible for any acts of such subcontractors. |
D. | No Exclusivity: Client acknowledges that nothing in this Agreement obliges Developer to devote all or substantially all of its time or attention to the Services and that nothing shall restrict or prevent Developer from entering into agreements with other persons concerning the provision of similar services. |
3. | TERMS, TERMINATION AND SUSPENSION OF SERVICE |
A. | Term: The term of this Agreement shall commence on the Effective Date and shall continue thereafter until the later of completion of the Services provided for in this Agreement (the “Term”), unless terminated earlier as provided herein. |
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B. | Termination: Client may terminate this Agreement without cause upon thirty (30) days written notice. Either party may terminate this Agreement for material breach, provided, however, that the terminating party has given the other party at least fourteen (14) days written notice of and the opportunity to cure the breach. Termination for breach will not alter or affect the terminating party’s right to exercise any other remedy for breach. Additionally, either party may terminate this Agreement effective immediately upon written notice if: (a) all or a substantial portion of the assets of the other party are transferred to an assignee for the benefit of creditors to a receiver or to a trustee in bankruptcy; (b) a proceeding is commenced by or against the other party for relief under the bankruptcy or similar laws, and such proceeding is not dismissed within sixty (60) days; or (c) the other party is adjudged bankrupt. |
With respect to any termination of this Agreement, whether without cause by Client or for any other reason, and subject to Client’s payment of the required fees for Work provided up to the date of termination, Developer shall promptly deliver to Client all Work, including the Software, performed by Developer up to the date of termination, even if such Work and/or Software is not yet completed at such time.
4. | PRICE AND PAYMENT TERMS |
Client will pay Developer for the Work at the price and on the terms set forth in corresponding Statement of Work. Developer will not be liable for any interest or penalties incurred due to late payment or nonpayment of these taxes by Client, but instead Client will be fully responsible for payment of said interest and penalties.
5. | DEVELOPER RESPONSIBILITIES AND REPRESENTATIONS |
A. | Perform the Services defined within each Statement of Work to the best of its ability and with the degree of care, diligence and skill that a reasonably prudent person would exercise in comparable circumstances; |
B. | Liaise with Client through Client’s coordinator on matters related to the Services; |
C. | Notify Client, whenever practicable, if expenses beyond the defined charges within a Service Schedule may be incurred; |
D. | Invoice Client according to the terms of this Agreement and the applicable Statement of Work for the Services performed; and |
E. | Subject to Section 8, proceed according to Client’s reasonable instructions for the disposition of Client’s Data and supplies on the termination of any Statement of Work. |
6. | CLIENT RESPONSIBILITIES AND REPRESENTATIONS |
A. | Provide all necessary Data and any special forms or other required materials or information to Developer on schedule or in a timely fashion to enable Developer to provide the Services. |
B. | Ensure the accuracy, legibility, and completeness of all Data supplied to Developer and be solely responsible for the results obtained from Client’s use of any of the Services. |
C. | Liaise with Developer through a coordinator Client will identify, on matters related to the Services and authorize that coordinator to make decisions on behalf of Client in relation to the implementation of this Agreement and the Services and any changes thereto. |
D. | Comply with Developer’s security and operating procedures (as may be revised or amended by Developer from time to time) when Client’s employees or agents are interfacing with Developer installed systems. |
E. | Control, and be responsible for the use of, account information, user ids and passwords related to the Services and, where required, when interfacing with Developer installed systems. |
7. | SOFTWARE AND INTELLECTUAL PROPERTY RIGHTS |
A. | Subject to Client’s payment to Developer of the compensation as provided in this Agreement, Developer’s Work (including the Software, Technical Design and the Documentation) will be deemed a “commissioned work” and “work made for hire” to the greatest extent permitted by law and Client will be the sole owner of the Software and/or any works derived therefrom. To the extent that Developer’s Work is not properly characterized as “work made for hire,” Developer hereby irrevocably assigns to Client all right, title and interest in and to Developer’s Work and the Software (including but not limited to the copyright therein), and any and all ideas and information embodied therein, in perpetuity and throughout the world. Except to the extent otherwise provided in this Agreement, Developer retains no right, ownership, or title in the Developer’s Work, Software, Technical Design and the Documentation, or any related copyrights, trademarks, patents, trade secrets, Confidential Information, or any other proprietary rights obtained on the Software, Technical Design or the Documentation. The parties agree that the Software, Technical Design and the Documentation, and all associated intellectual property rights are being sold in their entirety to Client for whatever use Client desires. Nothing in this Agreement may be construed to convey a mere license to Client. Developer agrees to cooperate with Client, without additional compensation, in providing information or performing any necessary actions to register and secure any copyrights, patents, or trademarks or other intellectual property rights for the benefit of Client. Upon request, each party hereto shall execute and deliver any instruments, assignments, confirmations of assignments, or other written instruments as the other party may request in the ordinary course of business related to the Software, Technical Design and the Documentation or the rights or obligations set forth herein. |
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B. | Developer also grants to Client a royalty free, fully-paid, non-exclusive, perpetual, worldwide right and license in and to any other underlying software or platform used by Developer, separate and apart from the Software itself, in performing the Work and completing the Software as may be needed from time to time by Client in order to update the Software and/or make the Software perform according to Client’s needed specifications from time to time. Client hereby grants to Developer a perpetual, royalty-free, worldwide, non-exclusive license in the Software on an internal basis only for the sole purpose of allowing Developer to perform its obligations under this Agreement and for no other purpose. |
8. | CONFIDENTIALITY |
A. | All information relating to Client that is known to be confidential or proprietary, or which is clearly marked as such, or which Client considers in its discretion to be confidential or proprietary, including without limitation this Agreement and the fact of Developer’s engagement by Client hereunder (collectively, “Client’s Confidential Information”), will be held in confidence by Developer and will not be used by Developer except to the extent that such use is reasonably necessary to the performance of Developer’s Work. Developer also will not disclose Client’s Confidential Information to any other person or party except as may be expressly authorized by Client in writing prior to such disclosure. |
B. | All information relating to Developer that is known to be confidential or proprietary, or which is clearly marked as such, or which Developer considers in its discretion to be confidential and proprietary, including without limitation this Agreement (collectively, “Developer’s Confidential Information”), will be held in confidence by Client and will not be used by Client except to the extent that such use is reasonably necessary to the performance of Client’s duties and obligations under this Agreement. Client also will not disclose Developer’s Confidential Information to any other person or party except as may be expressly authorized by Developer in writing prior to such disclosure. Notwithstanding the foregoing, the parties agree that Developer’s Confidential Information shall not include the Software. |
C. | These obligations of confidentiality will extend for a period of three (3) years after the termination of this Agreement, but will not apply with respect to information that is independently developed by the parties, lawfully becomes a part of the public domain, or of which the parties gained knowledge or possession free of any confidentiality obligation. If either party is compelled by any law or authority with jurisdiction over such party to disclose the other party’s Confidential Information, the party being compelled shall limit the disclosure as much as practicable under the circumstances, and shall immediately notify the other party upon having knowledge of the law or authority requiring disclosure of the Confidential Information so that such other party may intervene as necessary to protect its rights and interests in and to such Confidential Information. |
D. | Client and Developer acknowledge that any breach of Section 8 by a receiving party will irreparably harm the disclosing party. Accordingly, in the event of a breach, the disclosing party is entitled to promptly seek injunctive relief in addition to any other remedies that it may have at law or in equity. |
9. | DISCLAIMER OF WARRANTIES, LIMITATION OF LIABILITY, INDEMNIFICATION |
A. | THESE WARRANTIES SET FORTH HEREIN ARE EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE AND ANY ORAL OR WRITTEN REPRESENTATIONS, PROPOSALS OR STATEMENTS MADE ON OR PRIOR TO THE EFFECTIVE DATE OF THIS AGREEMENT. DEVELOPER EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES NOT STATED HEREIN. |
B. | Developer Indemnification: Developer shall indemnify and hold Client harmless from any loss, claim, or damage (including attorney’s fees) to persons or property arising out of this Agreement, the Software, or the Services to the extent that the loss, claim, or damage is caused by Developer’s breach of any term of this Agreement or the intentional act of Developer. This indemnity survives termination of this Agreement. |
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C. | Indemnification against Infringement: In performing services under this Agreement, Developer agrees not to design, develop, or provide to Client any items that infringe one or more patents, copyrights, trademarks or other intellectual property rights (including trade secrets), open source licenses, privacy, or other proprietary rights of any person or entity. If Developer becomes aware of any such possible infringement in the course of performing any work hereunder, Developer shall immediately so notify Client in writing. Developer agrees to indemnify, defend, and hold Client, its officers, members, employees, representatives, agents, and the like harmless for any such alleged or actual infringement and for any liability, debt, or other obligation arising out of or as a result of any infringement on third party’s proprietary contractual rights or rights in its patent, copyright, trade secret, or trademark rights valid at common law or under state or federal law or any third party rights in its patents existing on the date the Software, Technical Design or the Documentation was accepted by Client or claims, damages, or liabilities relating to (i) this Agreement (including any changes or amendments thereto), (ii) the performance of the Agreement, or (iii) the Deliverables. This indemnification will be effective so long as Client promptly notifies Developer of any such claim and provides assistance and information to Developer that it reasonably requests to help defend against such claims. This indemnification will not cover any claims resulting from Client’s unauthorized modification of the Software. This indemnity survives termination of this Agreement. |
D. | Client Indemnification: Except as provided herein, Client shall indemnify and hold Developer harmless from any loss, claim, or damage (including attorney’s fees) to persons or property arising out of this Agreement to the extent that the loss, claim, or damage is caused by Client’s breach of any term of this Agreement or the intentional act of Client. This indemnity survives termination of this Agreement. |
E. | Limitation of Liability: Except for claims related to confidentiality or infringement of intellectual property rights, neither party will be liable to the other for special, indirect or consequential damages incurred or suffered by the other arising as a result of or related to the performance of Developer’s Work, whether in contract, tort or otherwise, even if the other has been advised of the possibility of such loss or damages. |
10. | RELATION OF PARTIES |
The performance by Developer of its duties and obligations under this Agreement will be that of an independent contractor, and nothing in this Agreement will create or imply an agency relationship between Developer and Client, nor will this Agreement be deemed to constitute a joint venture or partnership between the parties.
11. | EMPLOYEE SOLICITATION/HIRING; NON-COMPETITION |
A. | During the period of this Agreement and for two (2) years thereafter, neither party will directly or indirectly solicit or offer employment to or hire any individual known by the party to be an employee, former employee, subcontractor or former subcontractor of the other party; provided, however, that notwithstanding the foregoing, either party hereto may hire any individual who responds to a general advertisement or solicitation for employment, or who seeks out employment with such party, in either case as long as the hiring party does not violate the foregoing restriction provided above in this sentence. The terms “former employee” and “former subcontractor” will include only those employees or subcontractors of either party who were employed or utilized by that party within six (6) months immediately prior to the alleged violation. |
B. | During the Term and for a period of three (3) years immediately following date of termination (regardless of whether termination is initiated by Developer or Client or caused by completion of the Term), neither Developer nor any of Developer’s owners, agents, employees, members, or managers shall, individually or collectively, as a participant in a partnership, sole proprietorship, corporation, limited liability company, or other entity, or as an operator, investor, shareholder, employee, partner, director, consultant, manager, or advisor of any such entity, or in any other capacity whatsoever, either directly or indirectly, enter into or participate in any business which is in direct or indirect competition with Client’s business worldwide. Further, except as expressly provided herein, Developer shall not utilize the Software, Documentation, or Technical Design for any external purposes; such use shall be limited to internal use related to the Services and Maintenance as provided herein. Developer shall not, independently or with a third party, develop, license, sell or distribute, or explore any opportunity to develop, license, sell or distribute any software substantially similar to the Software for any direct or indirect competitor of Client during the Term and for a period of three (3) years thereafter, or the third anniversary of the date of this Agreement, whichever occurs first. |
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C. | Developer acknowledges that the covenants and assurances made by Developer pursuant to this Section 11 were a material inducement to Client’s entry into this Agreement, and that Developer’s covenant not to compete is necessary to insure Client’s successful continuation of the Business, and that irreparable harm and damage will be done to Client in the event that Developer competes with Client in violation of this Section 11. Developer understands and agrees that the scope and duration of the covenants contained in this Section 11 are reasonable both in time and geographical area and are necessary to protect the legitimate business interests of Client. Developer further agrees that such covenants shall be regarded as divisible and shall be operative as to time and geographical area to the extent that they may be made so and, if any part of such covenants is declared invalid or unenforceable, the validity and enforceability of the remainder shall not be affected. |
12. | PUBLICITY AND USE OF NAME |
Without the prior written consent of the other party, neither party shall disclose the terms and conditions of this Agreement, except such disclosure may be made as is reasonably necessary to the disclosing party’s bankers, attorneys, or accountants or except as may be required by law. Developer shall not disclose or identify Client orally or in any of Developer’s advertising, publication, or other media, except with prior written consent of Client.
13. | ARBITRATION |
Any dispute arising under this Agreement will be subject to binding arbitration by a single Arbitrator with the American Arbitration Association (AAA), in accordance with its relevant industry rules, if any.
14. | GOVERNING LAW |
This Agreement shall be governed for all purposes by the laws of New York, without regard to conflict of laws principles. Any and all disputes arising out of or in connection with this Agreement, its performance or breach, shall be resolved by a court of competent jurisdiction in or serving New York County, New York, or in a U.S. District Court located in the State of New York. Each party hereby consents to the exclusive jurisdiction and venue of such courts, and to receive service of process by U.S. first class mail.
15. | ATTORNEYS’ FEES |
If any litigation or arbitration is necessary to enforce the terms of this Agreement, the prevailing party will be entitled to reasonable attorneys’ fees and costs.
16. | REMEDIES |
Except as otherwise provided herein, the rights and remedies of Developer and Client set forth herein with respect to failure of the other to comply with the terms of this Agreement including, without limitation, rights of full termination of this Agreement, are not exclusive, the exercise thereof shall not constitute an election of remedies and the aggrieved party shall in all events be entitled to seek whatever additional remedies may be available in law or in equity.
17. | SEVERABILITY |
If any term of this Agreement is found to be unenforceable or contrary to law, it will be modified to the least extent necessary to make it enforceable, and the remaining portions of this Agreement will remain in full force and effect.
18. | FORCE MAJEURE |
Neither party will be held responsible for any delay or failure in performance of any part of this Agreement to the extent that such delay is caused by events or circumstances beyond the delayed party’s reasonable control, such as, Acts of God (including fire, flood, earthquake, storm, hurricane or other natural disaster), war, invasion, act of foreign enemies, hostilities (regardless of whether war is declared), civil war, rebellion, revolution, insurrection, military or usurped power or confiscation, terrorist activities, nationalization, government sanction, blockage, embargo, labor dispute, or strike.
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19. | WAIVER AND MODIFICATION |
The waiver by any party of any breach of covenant will not be construed to be a waiver of any succeeding breach or any other covenant. All waivers must be in writing, and signed by the party waiving its rights. This Agreement may be modified only by a written instrument executed by authorized representatives of the parties hereto.
20. | ENTIRE AGREEMENT |
This Agreement, together with any attachments referred to herein, constitutes the entire agreement between the parties with respect to its subject matter, and supersedes all prior agreements, proposals, negotiations, representations or communications relating to the subject matter. Both parties acknowledge that they have not been induced to enter into this Agreement by any representations or promises not specifically stated herein.
IN WITNESS WHEREOF, the parties have executed this Agreement by their duly authorized representatives.
GNOMISH GAMES [DEVELOPER] | APPSOFT TECHNOLOGIES, INC. [CLIENT] | |||
By: | /s/ Michael O’Day | By: | /s/ Brian Kupchik | |
Name: | Michael O’Day | Name: | Brian Kupchik | |
Title: | Founder | Title: | CEO |
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STATEMENT OF WORK (SOW)
THIS STATEMENT OF WORK (“Agreement”) is entered into on June 10, 2016 (the “Effective Date”), between Gnomish Games(“Developer”), and Appsoft Technologies, Inc. (“Client”) in accordance with the mutually signed Master Services Agreement entered into on June 10, 2016.
1. | FUNCTIONAL SCOPE AND REQUIREMENTS |
Functional scope and requirements shall be as directed by the Chief Executive Officer of the Company from time to time.
2. | PAYMENT, TERMS OF PAYMENT, AND PROFIT SHARING |
The total development cost is $13,000 USD. $4,000 USD will be paid upfront, a second installment of $2,500 will be paid upon invoice receipt which is to be sent July 1, 2016, a third installment of $2,500 will be paid upon invoice receipt which is to be sent August 1, 2016 and the remaining balance of $4,000 USD will be paid upon completion delivery of the completed codebase.
3. | ACCEPTANCE OF SOW |
This SOW, in conjunction with the Master Service Agreement (MSA) and any/all other SOW(s) shall upon execution by both parties, constitute the complete and exclusive agreement between Client and Developer with respect to the consulting services described herein. Unless and until such mutual execution, neither party shall have any obligation to the other hereunder.
IN WITNESS WHEREOF, THE PARTIES HAVE AGREED TO THIS SOW AS EVIDENCED BY THEIR SIGNINGS BELOW.
GNOMISH GAMES [DEVELOPER] | APPSOFT TECHNOLOGIES, INC. [CLIENT] | |||
By: | /s/ Michael O’Day | By: | /s/ Brian Kupchik | |
Name: | Michael O’Day | Name: | Brian Kupchik | |
Title: | Founder | Title: | CEO |
Exhibit 99.5
MASTER SERVICES AGREEMENT
THIS MASTER SERVICES AGREEMENT (“Agreement”) is entered into on June 6 th , 2016 (the “Effective Date”), between Clayton Tapp (“Developer”), with its principal place of business located at 2036 Blaeberry School Road Golden, BC, Canada V0A 1H0 and AppSoft Technologies, Inc (“Client”), with its principal place of business located at 1225 Franklin Ave Suite 325 Garden City, NY 11530.
1. | DEFINITIONS |
In this Agreement, unless otherwise expressly defined or the context otherwise requires:
A. | “Agreement” means this services agreement, any Statement of Works and all related amendments. |
B. | “Data” means all information in hard copy or in electronic form, which is used in the performance of Services under this Agreement. |
C. | “Service” means a service as specified in a Statement of Work, which Developer provides to Client under this Agreement. |
D. | “Statement of Work” means the mutually signed Exhibits attached to this Agreement, or the quote or fee estimate as amended or modified between the parties from time to time, which describes a Service to be provided by Developer to Client and any additional terms and conditions relating specifically to such Service. |
E. | “Software” means computer programs, regardless of format or medium, their documentation and specifications. |
2. | SERVICES |
A. | Agreement to Perform Services: Developer agrees to perform and Client agrees to accept the Services described in the Statement of Work in accordance with the terms and conditions of this Agreement. |
B. | Change Orders: Additions or modifications to the Services may be accomplished through the use of a “Change Order”. A Change Order must be in writing and signed by each party in order to be effective. The procedure for creating a Change Order is as follows: (a) Client shall submit a written request to Developer specifying the additions or modifications to the Services desired (the “Change Notice”); and (b) if Developer is prepared to add to or modify the Services as requested by the Client, it shall prepare and submit an amendment to the Statement of Work (the “Change Order”) to Client which shall include a description of the changes to the Services and any additional fees. On obtaining the Client’s written signature to the Change Order, the Change Order will become part of the Statement of Works. |
C. | Right to Subcontract: Developer may not subcontract to any third party any of the Services to be provided to the Client hereunder, without the written consent of the Client. In the event Developer subcontracts any of the Services to a third party service provider, Developer shall be and remain fully responsible for any acts of such subcontractors. |
D. | No Exclusivity: Client acknowledges that nothing in this Agreement obliges Developer to devote all or substantially all of its time or attention to the Services and that nothing shall restrict or prevent Developer from entering into agreements with other persons concerning the provision of similar services. |
3. | TERMS, TERMINATION AND SUSPENSION OF SERVICE |
A. | Term: The term of this Agreement shall commence on the Effective Date and shall continue thereafter until the later of completion of the Services provided for in this Agreement (the “Term”), unless terminated earlier as provided herein. |
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B. | Termination: Client may terminate this Agreement without cause upon thirty (30) days written notice. Either party may terminate this Agreement for material breach, provided, however, that the terminating party has given the other party at least fourteen (14) days written notice of and the opportunity to cure the breach. Termination for breach will not alter or affect the terminating party’s right to exercise any other remedy for breach. Additionally, either party may terminate this Agreement effective immediately upon written notice if: (a) all or a substantial portion of the assets of the other party are transferred to an assignee for the benefit of creditors to a receiver or to a trustee in bankruptcy; (b) a proceeding is commenced by or against the other party for relief under the bankruptcy or similar laws, and such proceeding is not dismissed within sixty (60) days; or (c) the other party is adjudged bankrupt. |
With respect to any termination of this Agreement, whether without cause by Client or for any other reason, and subject to Client’s payment of the required fees for Work provided up to the date of termination, Developer shall promptly deliver to Client all Work, including the Software, performed by Developer up to the date of termination, even if such Work and/or Software is not yet completed at such time.
4. | PRICE AND PAYMENT TERMS |
Client will pay Developer for the Work at the price and on the terms set forth in corresponding Statement of Work. Developer will not be liable for any interest or penalties incurred due to late payment or nonpayment of these taxes by Client, but instead Client will be fully responsible for payment of said interest and penalties.
5. | DEVELOPER RESPONSIBILITIES AND REPRESENTATIONS |
A. | Perform the Services defined within each Statement of Work to the best of its ability and with the degree of care, diligence and skill that a reasonably prudent person would exercise in comparable circumstances; |
B. | Liaise with Client through Client’s coordinator on matters related to the Services; |
C. | Notify Client, whenever practicable, if expenses beyond the defined charges within a Service Schedule may be incurred; |
D. | Invoice Client according to the terms of this Agreement and the applicable Statement of Work for the Services performed; and |
E. | Subject to Section 8, proceed according to Client’s reasonable instructions for the disposition of Client’s Data and supplies on the termination of any Statement of Work. |
6. | CLIENT RESPONSIBILITIES AND REPRESENTATIONS |
A. | Provide all necessary Data and any special forms or other required materials or information to Developer on schedule or in a timely fashion to enable Developer to provide the Services. |
B. | Ensure the accuracy, legibility, and completeness of all Data supplied to Developer and be solely responsible for the results obtained from Client’s use of any of the Services. |
C. | Liaise with Developer through a coordinator Client will identify, on matters related to the Services and authorize that coordinator to make decisions on behalf of Client in relation to the implementation of this Agreement and the Services and any changes thereto. |
D. | Comply with Developer’s security and operating procedures (as may be revised or amended by Developer from time to time) when Client’s employees or agents are interfacing with Developer installed systems. |
E. | Control, and be responsible for the use of, account information, user ids and passwords related to the Services and, where required, when interfacing with Developer installed systems. |
7. | SOFTWARE AND INTELLECTUAL PROPERTY RIGHTS |
A. | Subject to Client’s payment to Developer of the compensation as provided in this Agreement, Developer’s Work (including the Software, Technical Design and the Documentation) will be deemed a “commissioned work” and “work made for hire” to the greatest extent permitted by law and Client will be the sole owner of the Software and/or any works derived therefrom. To the extent that Developer’s Work is not properly characterized as “work made for hire,” Developer hereby irrevocably assigns to Client all right, title and interest in and to Developer’s Work and the Software (including but not limited to the copyright therein), and any and all ideas and information embodied therein, in perpetuity and throughout the world. Except to the extent otherwise provided in this Agreement, Developer retains no right, ownership, or title in the Developer’s Work, Software, Technical Design and the Documentation, or any related copyrights, trademarks, patents, trade secrets, Confidential Information, or any other proprietary rights obtained on the Software, Technical Design or the Documentation. The parties agree that the Software, Technical Design and the Documentation, and all associated intellectual property rights are being sold in their entirety to Client for whatever use Client desires. Nothing in this Agreement may be construed to convey a mere license to Client. Developer agrees to cooperate with Client, without additional compensation, in providing information or performing any necessary actions to register and secure any copyrights, patents, or trademarks or other intellectual property rights for the benefit of Client. Upon request, each party hereto shall execute and deliver any instruments, assignments, confirmations of assignments, or other written instruments as the other party may request in the ordinary course of business related to the Software, Technical Design and the Documentation or the rights or obligations set forth herein. |
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B. | Developer also grants to Client a royalty free, fully-paid, non-exclusive, perpetual, worldwide right and license in and to any other underlying software or platform used by Developer, separate and apart from the Software itself, in performing the Work and completing the Software as may be needed from time to time by Client in order to update the Software and/or make the Software perform according to Client’s needed specifications from time to time. Client hereby grants to Developer a perpetual, royalty-free, worldwide, non-exclusive license in the Software on an internal basis only for the sole purpose of allowing Developer to perform its obligations under this Agreement and for no other purpose. |
8. | CONFIDENTIALITY |
A. | All information relating to Client that is known to be confidential or proprietary, or which is clearly marked as such, or which Client considers in its discretion to be confidential or proprietary, including without limitation this Agreement and the fact of Developer’s engagement by Client hereunder (collectively, “Client’s Confidential Information”), will be held in confidence by Developer and will not be used by Developer except to the extent that such use is reasonably necessary to the performance of Developer’s Work. Developer also will not disclose Client’s Confidential Information to any other person or party except as may be expressly authorized by Client in writing prior to such disclosure. |
B. | All information relating to Developer that is known to be confidential or proprietary, or which is clearly marked as such, or which Developer considers in its discretion to be confidential and proprietary, including without limitation this Agreement (collectively, “Developer’s Confidential Information”), will be held in confidence by Client and will not be used by Client except to the extent that such use is reasonably necessary to the performance of Client’s duties and obligations under this Agreement. Client also will not disclose Developer’s Confidential Information to any other person or party except as may be expressly authorized by Developer in writing prior to such disclosure. Notwithstanding the foregoing, the parties agree that Developer’s Confidential Information shall not include the Software. |
C. | These obligations of confidentiality will extend for a period of three (3) years after the termination of this Agreement, but will not apply with respect to information that is independently developed by the parties, lawfully becomes a part of the public domain, or of which the parties gained knowledge or possession free of any confidentiality obligation. If either party is compelled by any law or authority with jurisdiction over such party to disclose the other party’s Confidential Information, the party being compelled shall limit the disclosure as much as practicable under the circumstances, and shall immediately notify the other party upon having knowledge of the law or authority requiring disclosure of the Confidential Information so that such other party may intervene as necessary to protect its rights and interests in and to such Confidential Information. |
D. | Client and Developer acknowledge that any breach of Section 8 by a receiving party will irreparably harm the disclosing party. Accordingly, in the event of a breach, the disclosing party is entitled to promptly seek injunctive relief in addition to any other remedies that it may have at law or in equity. |
9. | DISCLAIMER OF WARRANTIES, LIMITATION OF LIABILITY, INDEMNIFICATION |
A. | THESE WARRANTIES SET FORTH HEREIN ARE EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE AND ANY ORAL OR WRITTEN REPRESENTATIONS, PROPOSALS OR STATEMENTS MADE ON OR PRIOR TO THE EFFECTIVE DATE OF THIS AGREEMENT. DEVELOPER EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES NOT STATED HEREIN. |
B. | Developer Indemnification: Developer shall indemnify and hold Client harmless from any loss, claim, or damage (including attorney’s fees) to persons or property arising out of this Agreement, the Software, or the Services to the extent that the loss, claim, or damage is caused by Developer’s breach of any term of this Agreement or the intentional act of Developer. This indemnity survives termination of this Agreement. |
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C. | Indemnification against Infringement: In performing services under this Agreement, Developer agrees not to design, develop, or provide to Client any items that infringe one or more patents, copyrights, trademarks or other intellectual property rights (including trade secrets), open source licenses, privacy, or other proprietary rights of any person or entity. If Developer becomes aware of any such possible infringement in the course of performing any work hereunder, Developer shall immediately so notify Client in writing. Developer agrees to indemnify, defend, and hold Client, its officers, members, employees, representatives, agents, and the like harmless for any such alleged or actual infringement and for any liability, debt, or other obligation arising out of or as a result of any infringement on third party’s proprietary contractual rights or rights in its patent, copyright, trade secret, or trademark rights valid at common law or under state or federal law or any third party rights in its patents existing on the date the Software, Technical Design or the Documentation was accepted by Client or claims, damages, or liabilities relating to (i) this Agreement (including any changes or amendments thereto), (ii) the performance of the Agreement, or (iii) the Deliverables. This indemnification will be effective so long as Client promptly notifies Developer of any such claim and provides assistance and information to Developer that it reasonably requests to help defend against such claims. This indemnification will not cover any claims resulting from Client’s unauthorized modification of the Software. This indemnity survives termination of this Agreement. |
D. | Client Indemnification: Except as provided herein, Client shall indemnify and hold Developer harmless from any loss, claim, or damage (including attorney’s fees) to persons or property arising out of this Agreement to the extent that the loss, claim, or damage is caused by Client’s breach of any term of this Agreement or the intentional act of Client. This indemnity survives termination of this Agreement. |
E. | Limitation of Liability: Except for claims related to confidentiality or infringement of intellectual property rights, neither party will be liable to the other for special, indirect or consequential damages incurred or suffered by the other arising as a result of or related to the performance of Developer’s Work, whether in contract, tort or otherwise, even if the other has been advised of the possibility of such loss or damages. |
10. | RELATION OF PARTIES |
The performance by Developer of its duties and obligations under this Agreement will be that of an independent contractor, and nothing in this Agreement will create or imply an agency relationship between Developer and Client, nor will this Agreement be deemed to constitute a joint venture or partnership between the parties.
11. | EMPLOYEE SOLICITATION/HIRING; NON-COMPETITION |
A. | During the period of this Agreement and for two (2) years thereafter, neither party will directly or indirectly solicit or offer employment to or hire any individual known by the party to be an employee, former employee, subcontractor or former subcontractor of the other party; provided, however, that notwithstanding the foregoing, either party hereto may hire any individual who responds to a general advertisement or solicitation for employment, or who seeks out employment with such party, in either case as long as the hiring party does not violate the foregoing restriction provided above in this sentence. The terms “former employee” and “former subcontractor” will include only those employees or subcontractors of either party who were employed or utilized by that party within six (6) months immediately prior to the alleged violation. |
B. | During the Term and for a period of three (3) years immediately following date of termination (regardless of whether termination is initiated by Developer or Client or caused by completion of the Term), neither Developer nor any of Developer’s owners, agents, employees, members, or managers shall, individually or collectively, as a participant in a partnership, sole proprietorship, corporation, limited liability company, or other entity, or as an operator, investor, shareholder, employee, partner, director, consultant, manager, or advisor of any such entity, or in any other capacity whatsoever, either directly or indirectly, enter into or participate in any business which is in direct or indirect competition with Client’s business worldwide. Further, except as expressly provided herein, Developer shall not utilize the Software, Documentation, or Technical Design for any external purposes; such use shall be limited to internal use related to the Services and Maintenance as provided herein. Developer shall not, independently or with a third party, develop, license, sell or distribute, or explore any opportunity to develop, license, sell or distribute any software substantially similar to the Software for any direct or indirect competitor of Client during the Term and for a period of three (3) years thereafter, or the third anniversary of the date of this Agreement, whichever occurs first. |
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C. | Developer acknowledges that the covenants and assurances made by Developer pursuant to this Section 11 were a material inducement to Client’s entry into this Agreement, and that Developer’s covenant not to compete is necessary to insure Client’s successful continuation of the Business, and that irreparable harm and damage will be done to Client in the event that Developer competes with Client in violation of this Section 11. Developer understands and agrees that the scope and duration of the covenants contained in this Section 11 are reasonable both in time and geographical area and are necessary to protect the legitimate business interests of Client. Developer further agrees that such covenants shall be regarded as divisible and shall be operative as to time and geographical area to the extent that they may be made so and, if any part of such covenants is declared invalid or unenforceable, the validity and enforceability of the remainder shall not be affected. |
12. | PUBLICITY AND USE OF NAME |
Without the prior written consent of the other party, neither party shall disclose the terms and conditions of this Agreement, except such disclosure may be made as is reasonably necessary to the disclosing party’s bankers, attorneys, or accountants or except as may be required by law. Developer shall not disclose or identify Client orally or in any of Developer’s advertising, publication, or other media, except with prior written consent of Client.
13. | ARBITRATION |
Any dispute arising under this Agreement will be subject to binding arbitration by a single Arbitrator with the American Arbitration Association (AAA), in accordance with its relevant industry rules, if any.
14. | GOVERNING LAW |
This Agreement shall be governed for all purposes by the laws of New York, without regard to conflict of laws principles. Any and all disputes arising out of or in connection with this Agreement, its performance or breach, shall be resolved by a court of competent jurisdiction in or serving New York County, New York, or in a U.S. District Court located in the State of New York. Each party hereby consents to the exclusive jurisdiction and venue of such courts, and to receive service of process by U.S. first class mail.
15. | ATTORNEYS’ FEES |
If any litigation or arbitration is necessary to enforce the terms of this Agreement, the prevailing party will be entitled to reasonable attorneys’ fees and costs.
16. | REMEDIES |
Except as otherwise provided herein, the rights and remedies of Developer and Client set forth herein with respect to failure of the other to comply with the terms of this Agreement including, without limitation, rights of full termination of this Agreement, are not exclusive, the exercise thereof shall not constitute an election of remedies and the aggrieved party shall in all events be entitled to seek whatever additional remedies may be available in law or in equity.
17. | SEVERABILITY |
If any term of this Agreement is found to be unenforceable or contrary to law, it will be modified to the least extent necessary to make it enforceable, and the remaining portions of this Agreement will remain in full force and effect.
18. | FORCE MAJEURE |
Neither party will be held responsible for any delay or failure in performance of any part of this Agreement to the extent that such delay is caused by events or circumstances beyond the delayed party’s reasonable control, such as, Acts of God (including fire, flood, earthquake, storm, hurricane or other natural disaster), war, invasion, act of foreign enemies, hostilities (regardless of whether war is declared), civil war, rebellion, revolution, insurrection, military or usurped power or confiscation, terrorist activities, nationalization, government sanction, blockage, embargo, labor dispute, or strike.
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19. | WAIVER AND MODIFICATION |
The waiver by any party of any breach of covenant will not be construed to be a waiver of any succeeding breach or any other covenant. All waivers must be in writing, and signed by the party waiving its rights. This Agreement may be modified only by a written instrument executed by authorized representatives of the parties hereto.
20. | ENTIRE AGREEMENT |
This Agreement, together with any attachments referred to herein, constitutes the entire agreement between the parties with respect to its subject matter, and supersedes all prior agreements, proposals, negotiations, representations or communications relating to the subject matter. Both parties acknowledge that they have not been induced to enter into this Agreement by any representations or promises not specifically stated herein.
IN WITNESS WHEREOF, the parties have executed this Agreement by their duly authorized representatives.
Clayton Tapp [DEVELOPER] | APPSOFT TECHNOLOGIES, INC [CLIENT] | |||
By: | /s/ Clayton Tapp | By: | /s/ Brian Kupchik | |
Name: | Brian Kupchik | |||
Title: | CEO |
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STATEMENT OF WORK (SOW)
THIS STATEMENT OF WORK (“Agreement”) is entered into on June 6 th , 2016 (the “Effective Date”), between Clayton Tapp (“Developer”), and AppSoft Technologies, Inc. (“Client”) in accordance with the mutually signed Master Services Agreement entered into on June 6 th , 2016.
1. | FUNCTIONAL SCOPE AND REQUIREMENTS |
Functional scope and requirements shall be as directed by the Chief Executive Officer of the Company from time to time.
2. | PAYMENT, TERMS OF PAYMENT, AND PROFIT SHARING |
The total development cost is $4,000 USD. $1,000 USD will be paid upfront, a second installment of $1,000 will be paid at a half-way milestone which will be determined during development, and any remaining balance, estimated to be $2,000 USD will be paid upon completion delivery of the completed codebase.
3 | ACCEPTANCE OF SOW |
This SOW, in conjunction with the Master Service Agreement (MSA) and any/all other SOW(s) shall upon execution by both parties, constitute the complete and exclusive agreement between Client and Developer with respect to the consulting services described herein. Unless and until such mutual execution, neither party shall have any obligation to the other hereunder.
IN WITNESS WHEREOF, THE PARTIES HAVE AGREED TO THIS SOW AS EVIDENCED BY THEIR SIGNINGS BELOW.
Clayton Tapp [DEVELOPER] | APPSOFT TECHNOLOGIES, INC [CLIENT] | |||
By: | /s/ Clayton Tapp | By: | /s/ Brian Kupchik | |
Name: | Brian Kupchik | |||
Title: | CEO | |||
Date: | June 6 th , 2016 | Date: | June 6 th , 2016 |
Exhibit 99.6
MASTER SERVICES AGREEMENT
THIS MASTER SERVICES AGREEMENT (“Agreement”) is entered into on June 10, 2016 (the “Effective Date”), between Shawn Burdon (“Developer”), with its principal place of business located at 307-1397 West 71 st Ave Vancouver, BC V6P 3B4 and AppSoft Technologies, Inc (“Client”), with its principal place of business located at 1225 Franklin Ave Suite 325 Garden City, NY 11530.
1. | DEFINITIONS |
In this Agreement, unless otherwise expressly defined or the context otherwise requires:
A. | “Agreement” means this services agreement, any Statement of Works and all related amendments. |
B. | “Data” means all information in hard copy or in electronic form, which is used in the performance of Services under this Agreement. |
C. | “Service” means a service as specified in a Statement of Work, which Developer provides to Client under this Agreement. |
D. | “Statement of Work” means the mutually signed Exhibits attached to this Agreement, or the quote or fee estimate as amended or modified between the parties from time to time, which describes a Service to be provided by Developer to Client and any additional terms and conditions relating specifically to such Service. |
E. | “Software” means computer programs, regardless of format or medium, their documentation and specifications. |
2. | SERVICES |
A. | Agreement to Perform Services: Developer agrees to perform and Client agrees to accept the Services described in the Statement of Work in accordance with the terms and conditions of this Agreement. |
B. | Change Orders: Additions or modifications to the Services may be accomplished through the use of a “Change Order”. A Change Order must be in writing and signed by each party in order to be effective. The procedure for creating a Change Order is as follows: (a) Client shall submit a written request to Developer specifying the additions or modifications to the Services desired (the “Change Notice”); and (b) if Developer is prepared to add to or modify the Services as requested by the Client, it shall prepare and submit an amendment to the Statement of Work (the “Change Order”) to Client which shall include a description of the changes to the Services and any additional fees. On obtaining the Client’s written signature to the Change Order, the Change Order will become part of the Statement of Works. |
C. | Right to Subcontract: Developer may not subcontract to any third party any of the Services to be provided to the Client hereunder, without the written consent of the Client. In the event Developer subcontracts any of the Services to a third party service provider, Developer shall be and remain fully responsible for any acts of such subcontractors. |
D. | No Exclusivity: Client acknowledges that nothing in this Agreement obliges Developer to devote all or substantially all of its time or attention to the Services and that nothing shall restrict or prevent Developer from entering into agreements with other persons concerning the provision of similar services. |
3. | TERMS, TERMINATION AND SUSPENSION OF SERVICE |
A. | Term: The term of this Agreement shall commence on the Effective Date and shall continue thereafter until the later of completion of the Services provided for in this Agreement (the “Term”), unless terminated earlier as provided herein. |
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B. | Termination: Client may terminate this Agreement without cause upon thirty (30) days written notice. Either party may terminate this Agreement for material breach, provided, however, that the terminating party has given the other party at least fourteen (14) days written notice of and the opportunity to cure the breach. Termination for breach will not alter or affect the terminating party’s right to exercise any other remedy for breach. Additionally, either party may terminate this Agreement effective immediately upon written notice if: (a) all or a substantial portion of the assets of the other party are transferred to an assignee for the benefit of creditors to a receiver or to a trustee in bankruptcy; (b) a proceeding is commenced by or against the other party for relief under the bankruptcy or similar laws, and such proceeding is not dismissed within sixty (60) days; or (c) the other party is adjudged bankrupt. |
With respect to any termination of this Agreement, whether without cause by Client or for any other reason, and subject to Client’s payment of the required fees for Work provided up to the date of termination, Developer shall promptly deliver to Client all Work, including the Software, performed by Developer up to the date of termination, even if such Work and/or Software is not yet completed at such time.
4. | PRICE AND PAYMENT TERMS |
Client will pay Developer for the Work at the price and on the terms set forth in corresponding Statement of Work. Developer will not be liable for any interest or penalties incurred due to late payment or nonpayment of these taxes by Client, but instead Client will be fully responsible for payment of said interest and penalties.
5. | DEVELOPER RESPONSIBILITIES AND REPRESENTATIONS |
A. | Perform the Services defined within each Statement of Work to the best of its ability and with the degree of care, diligence and skill that a reasonably prudent person would exercise in comparable circumstances; |
B. | Liaise with Client through Client’s coordinator on matters related to the Services; |
C. | Notify Client, whenever practicable, if expenses beyond the defined charges within a Service Schedule may be incurred; |
D. | Invoice Client according to the terms of this Agreement and the applicable Statement of Work for the Services performed; and |
E. | Subject to Section 8, proceed according to Client’s reasonable instructions for the disposition of Client’s Data and supplies on the termination of any Statement of Work. |
6. | CLIENT RESPONSIBILITIES AND REPRESENTATIONS |
A. | Provide all necessary Data and any special forms or other required materials or information to Developer on schedule or in a timely fashion to enable Developer to provide the Services. |
B. | Ensure the accuracy, legibility, and completeness of all Data supplied to Developer and be solely responsible for the results obtained from Client’s use of any of the Services. |
C. | Liaise with Developer through a coordinator Client will identify, on matters related to the Services and authorize that coordinator to make decisions on behalf of Client in relation to the implementation of this Agreement and the Services and any changes thereto. |
D. | Comply with Developer’s security and operating procedures (as may be revised or amended by Developer from time to time) when Client’s employees or agents are interfacing with Developer installed systems. |
E. | Control, and be responsible for the use of, account information, user ids and passwords related to the Services and, where required, when interfacing with Developer installed systems. |
7. | SOFTWARE AND INTELLECTUAL PROPERTY RIGHTS |
A. | Subject to Client’s payment to Developer of the compensation as provided in this Agreement, Developer’s Work (including the Software, Technical Design and the Documentation) will be deemed a “commissioned work” and “work made for hire” to the greatest extent permitted by law and Client will be the sole owner of the Software and/or any works derived therefrom. To the extent that Developer’s Work is not properly characterized as “work made for hire,” Developer hereby irrevocably assigns to Client all right, title and interest in and to Developer’s Work and the Software (including but not limited to the copyright therein), and any and all ideas and information embodied therein, in perpetuity and throughout the world. Except to the extent otherwise provided in this Agreement, Developer retains no right, ownership, or title in the Developer’s Work, Software, Technical Design and the Documentation, or any related copyrights, trademarks, patents, trade secrets, Confidential Information, or any other proprietary rights obtained on the Software, Technical Design or the Documentation. The parties agree that the Software, Technical Design and the Documentation, and all associated intellectual property rights are being sold in their entirety to Client for whatever use Client desires. Nothing in this Agreement may be construed to convey a mere license to Client. Developer agrees to cooperate with Client, without additional compensation, in providing information or performing any necessary actions to register and secure any copyrights, patents, or trademarks or other intellectual property rights for the benefit of Client. Upon request, each party hereto shall execute and deliver any instruments, assignments, confirmations of assignments, or other written instruments as the other party may request in the ordinary course of business related to the Software, Technical Design and the Documentation or the rights or obligations set forth herein. |
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B. | Developer also grants to Client a royalty free, fully-paid, non-exclusive, perpetual, worldwide right and license in and to any other underlying software or platform used by Developer, separate and apart from the Software itself, in performing the Work and completing the Software as may be needed from time to time by Client in order to update the Software and/or make the Software perform according to Client’s needed specifications from time to time. Client hereby grants to Developer a perpetual, royalty-free, worldwide, non-exclusive license in the Software on an internal basis only for the sole purpose of allowing Developer to perform its obligations under this Agreement and for no other purpose. |
8. | CONFIDENTIALITY |
A. | All information relating to Client that is known to be confidential or proprietary, or which is clearly marked as such, or which Client considers in its discretion to be confidential or proprietary, including without limitation this Agreement and the fact of Developer’s engagement by Client hereunder (collectively, “Client’s Confidential Information”), will be held in confidence by Developer and will not be used by Developer except to the extent that such use is reasonably necessary to the performance of Developer’s Work. Developer also will not disclose Client’s Confidential Information to any other person or party except as may be expressly authorized by Client in writing prior to such disclosure. |
B. | All information relating to Developer that is known to be confidential or proprietary, or which is clearly marked as such, or which Developer considers in its discretion to be confidential and proprietary, including without limitation this Agreement (collectively, “Developer’s Confidential Information”), will be held in confidence by Client and will not be used by Client except to the extent that such use is reasonably necessary to the performance of Client’s duties and obligations under this Agreement. Client also will not disclose Developer’s Confidential Information to any other person or party except as may be expressly authorized by Developer in writing prior to such disclosure. Notwithstanding the foregoing, the parties agree that Developer’s Confidential Information shall not include the Software. |
C. | These obligations of confidentiality will extend for a period of three (3) years after the termination of this Agreement, but will not apply with respect to information that is independently developed by the parties, lawfully becomes a part of the public domain, or of which the parties gained knowledge or possession free of any confidentiality obligation. If either party is compelled by any law or authority with jurisdiction over such party to disclose the other party’s Confidential Information, the party being compelled shall limit the disclosure as much as practicable under the circumstances, and shall immediately notify the other party upon having knowledge of the law or authority requiring disclosure of the Confidential Information so that such other party may intervene as necessary to protect its rights and interests in and to such Confidential Information. |
D. | Client and Developer acknowledge that any breach of Section 8 by a receiving party will irreparably harm the disclosing party. Accordingly, in the event of a breach, the disclosing party is entitled to promptly seek injunctive relief in addition to any other remedies that it may have at law or in equity. |
9. | DISCLAIMER OF WARRANTIES, LIMITATION OF LIABILITY, INDEMNIFICATION |
a.A. | THESE WARRANTIES SET FORTH HEREIN ARE EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE AND ANY ORAL OR WRITTEN REPRESENTATIONS, PROPOSALS OR STATEMENTS MADE ON OR PRIOR TO THE EFFECTIVE DATE OF THIS AGREEMENT. DEVELOPER EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES NOT STATED HEREIN. |
a.B. | Developer Indemnification: Developer shall indemnify and hold Client harmless from any loss, claim, or damage (including attorney’s fees) to persons or property arising out of this Agreement, the Software, or the Services to the extent that the loss, claim, or damage is caused by Developer’s breach of any term of this Agreement or the intentional act of Developer. This indemnity survives termination of this Agreement. |
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a.C. | Indemnification against Infringement: In performing services under this Agreement, Developer agrees not to design, develop, or provide to Client any items that infringe one or more patents, copyrights, trademarks or other intellectual property rights (including trade secrets), open source licenses, privacy, or other proprietary rights of any person or entity. If Developer becomes aware of any such possible infringement in the course of performing any work hereunder, Developer shall immediately so notify Client in writing. Developer agrees to indemnify, defend, and hold Client, its officers, members, employees, representatives, agents, and the like harmless for any such alleged or actual infringement and for any liability, debt, or other obligation arising out of or as a result of any infringement on third party’s proprietary contractual rights or rights in its patent, copyright, trade secret, or trademark rights valid at common law or under state or federal law or any third party rights in its patents existing on the date the Software, Technical Design or the Documentation was accepted by Client or claims, damages, or liabilities relating to (i) this Agreement (including any changes or amendments thereto), (ii) the performance of the Agreement, or (iii) the Deliverables. This indemnification will be effective so long as Client promptly notifies Developer of any such claim and provides assistance and information to Developer that it reasonably requests to help defend against such claims. This indemnification will not cover any claims resulting from Client’s unauthorized modification of the Software. This indemnity survives termination of this Agreement. |
a.D. | Client Indemnification: Except as provided herein, Client shall indemnify and hold Developer harmless from any loss, claim, or damage (including attorney’s fees) to persons or property arising out of this Agreement to the extent that the loss, claim, or damage is caused by Client’s breach of any term of this Agreement or the intentional act of Client. This indemnity survives termination of this Agreement. |
a.E. | Limitation of Liability: Except for claims related to confidentiality or infringement of intellectual property rights, neither party will be liable to the other for special, indirect or consequential damages incurred or suffered by the other arising as a result of or related to the performance of Developer’s Work, whether in contract, tort or otherwise, even if the other has been advised of the possibility of such loss or damages. |
10. | RELATION OF PARTIES |
The performance by Developer of its duties and obligations under this Agreement will be that of an independent contractor, and nothing in this Agreement will create or imply an agency relationship between Developer and Client, nor will this Agreement be deemed to constitute a joint venture or partnership between the parties.
11. | EMPLOYEE SOLICITATION/HIRING; NON-COMPETITION |
A. | During the period of this Agreement and for two (2) years thereafter, neither party will directly or indirectly solicit or offer employment to or hire any individual known by the party to be an employee, former employee, subcontractor or former subcontractor of the other party; provided, however, that notwithstanding the foregoing, either party hereto may hire any individual who responds to a general advertisement or solicitation for employment, or who seeks out employment with such party, in either case as long as the hiring party does not violate the foregoing restriction provided above in this sentence. The terms “former employee” and “former subcontractor” will include only those employees or subcontractors of either party who were employed or utilized by that party within six (6) months immediately prior to the alleged violation. |
B. | During the Term and for a period of three (3) years immediately following date of termination (regardless of whether termination is initiated by Developer or Client or caused by completion of the Term), neither Developer nor any of Developer’s owners, agents, employees, members, or managers shall, individually or collectively, as a participant in a partnership, sole proprietorship, corporation, limited liability company, or other entity, or as an operator, investor, shareholder, employee, partner, director, consultant, manager, or advisor of any such entity, or in any other capacity whatsoever, either directly or indirectly, enter into or participate in any business which is in direct or indirect competition with Client’s business worldwide. Further, except as expressly provided herein, Developer shall not utilize the Software, Documentation, or Technical Design for any external purposes; such use shall be limited to internal use related to the Services and Maintenance as provided herein. Developer shall not, independently or with a third party, develop, license, sell or distribute, or explore any opportunity to develop, license, sell or distribute any software substantially similar to the Software for any direct or indirect competitor of Client during the Term and for a period of three (3) years thereafter, or the third anniversary of the date of this Agreement, whichever occurs first. |
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C. | Developer acknowledges that the covenants and assurances made by Developer pursuant to this Section 11 were a material inducement to Client’s entry into this Agreement, and that Developer’s covenant not to compete is necessary to insure Client’s successful continuation of the Business, and that irreparable harm and damage will be done to Client in the event that Developer competes with Client in violation of this Section 11. Developer understands and agrees that the scope and duration of the covenants contained in this Section 11 are reasonable both in time and geographical area and are necessary to protect the legitimate business interests of Client. Developer further agrees that such covenants shall be regarded as divisible and shall be operative as to time and geographical area to the extent that they may be made so and, if any part of such covenants is declared invalid or unenforceable, the validity and enforceability of the remainder shall not be affected. |
12. | PUBLICITY AND USE OF NAME |
Without the prior written consent of the other party, neither party shall disclose the terms and conditions of this Agreement, except such disclosure may be made as is reasonably necessary to the disclosing party’s bankers, attorneys, or accountants or except as may be required by law. Developer shall not disclose or identify Client orally or in any of Developer’s advertising, publication, or other media, except with prior written consent of Client.
13. | ARBITRATION |
Any dispute arising under this Agreement will be subject to binding arbitration by a single Arbitrator with the American Arbitration Association (AAA), in accordance with its relevant industry rules, if any.
14. | GOVERNING LAW |
This Agreement shall be governed for all purposes by the laws of New York, without regard to conflict of laws principles. Any and all disputes arising out of or in connection with this Agreement, its performance or breach, shall be resolved by a court of competent jurisdiction in or serving New York County, New York, or in a U.S. District Court located in the State of New York. Each party hereby consents to the exclusive jurisdiction and venue of such courts, and to receive service of process by U.S. first class mail.
15. | ATTORNEYS’ FEES |
If any litigation or arbitration is necessary to enforce the terms of this Agreement, the prevailing party will be entitled to reasonable attorneys’ fees and costs.
16. | REMEDIES |
Except as otherwise provided herein, the rights and remedies of Developer and Client set forth herein with respect to failure of the other to comply with the terms of this Agreement including, without limitation, rights of full termination of this Agreement, are not exclusive, the exercise thereof shall not constitute an election of remedies and the aggrieved party shall in all events be entitled to seek whatever additional remedies may be available in law or in equity.
17. | SEVERABILITY |
If any term of this Agreement is found to be unenforceable or contrary to law, it will be modified to the least extent necessary to make it enforceable, and the remaining portions of this Agreement will remain in full force and effect.
18. | FORCE MAJEURE |
Neither party will be held responsible for any delay or failure in performance of any part of this Agreement to the extent that such delay is caused by events or circumstances beyond the delayed party’s reasonable control, such as, Acts of God (including fire, flood, earthquake, storm, hurricane or other natural disaster), war, invasion, act of foreign enemies, hostilities (regardless of whether war is declared), civil war, rebellion, revolution, insurrection, military or usurped power or confiscation, terrorist activities, nationalization, government sanction, blockage, embargo, labor dispute, or strike.
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19. | WAIVER AND MODIFICATION |
The waiver by any party of any breach of covenant will not be construed to be a waiver of any succeeding breach or any other covenant. All waivers must be in writing, and signed by the party waiving its rights. This Agreement may be modified only by a written instrument executed by authorized representatives of the parties hereto.
20. | ENTIRE AGREEMENT |
This Agreement, together with any attachments referred to herein, constitutes the entire agreement between the parties with respect to its subject matter, and supersedes all prior agreements, proposals, negotiations, representations or communications relating to the subject matter. Both parties acknowledge that they have not been induced to enter into this Agreement by any representations or promises not specifically stated herein.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date set forth above.
SHAWN BURDON [DEVELOPER] | APPSOFT TECHNOLOGIES, INC.[CLIENT] | |||
By: | /s/ Shawn Burdon | By: | /s/ Brian Kupchik | |
Name: | Brian Kupchik | |||
Title: | CEO |
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STATEMENT OF WORK (SOW)
THIS STATEMENT OF WORK (“Agreement”) is entered into on June 10, 2016 (the “Effective Date”), between Shawn Burdon (“Developer”), and Appsoft Technologies, Inc. (“Client”) in accordance with the mutually signed Master Services Agreement entered into on June 10, 2016.
1. | FUNCTIONAL SCOPE AND REQUIREMENTS |
Functional scope and requirements shall be as directed by the Chief Executive Officer of the Company from time to time.
2. | PAYMENT, TERMS OF PAYMENT, AND PROFIT SHARING |
The total development cost is $4,000 USD. $2,000 USD will be paid upfront, a second installment of $2,000 will be paid upon completion delivery of the completed codebase. Proceeding project closure, if available ending budget permits, a bonus payment in the amount of $1,000 USD will be added to the second payment installment.
3. | ACCEPTANCE OF SOW |
This SOW, in conjunction with the Master Service Agreement (MSA) and any/all other SOW(s) shall upon execution by both parties, constitute the complete and exclusive agreement between Client and Developer with respect to the consulting services described herein. Unless and until such mutual execution, neither party shall have any obligation to the other hereunder.
IN WITNESS WHEREOF, THE PARTIES HAVE AGREED TO THIS SOW AS EVIDENCED BY THEIR SIGNINGS BELOW.
SHAWN BURDON [DEVELOPER] | APPSOFT TECHNOLOGIES, INC.[CLIENT] | |||
By: | /s/ Shawn Burdon | By: | /s/ Brian Kupchik | |
Name: | Brian Kupchik | |||
Title: | CEO |
Exhibit 99.7
CONSULTING AGREEMENT
This Consulting Agreement (this “ Agreement ”) is made as of June 10, 2016, by and between AppSoft Technologies, Inc., a Nevada corporation (the “ Company ”), and Marc A. Seal (“ Consultant ”).
1. Consulting Relationship. During the term of this Agreement, Consultant will provide consulting services to the Company as described on Exhibit A hereto (the “ Services ”). Consultant represents that Consultant has the qualifications, the experience and the ability to properly perform the Services. Consultant shall use Consultant’s best efforts to perform the Services such that the results are satisfactory to the Company. Consultant shall devote at least 25 hours per week to performance of the Services.
2. Fees. As consideration for the Services to be provided by Consultant and other obligations, the Company shall pay to Consultant the consideration specified in Exhibit B hereto at the times specified therein.
3. Expenses. Except as provided below, Consultant shall not be authorized to incur on behalf of the Company any expenses and will be responsible for all expenses incurred while performing the Services unless otherwise agreed to by the Company’s President, which consent shall be evidenced in writing for any expenses in excess of $500.00. Subject to the foregoing sentence, Consultant shall be entitled to incur expenses for software subscriptions or licenses, App or in app purchases, conventions/trade show attendance and travel. The Company shall provide a cell phone to Consultant for business purposes only. As a condition to receipt of reimbursement, Consultant shall be required to submit to the Company reasonable evidence that the amount involved was both reasonable and necessary to the Services provided under this Agreement.
4. Term and Termination. Consultant shall serve as a consultant to the Company for a period commencing on June 10, 2016 and terminating on the earlier of (a) the date Consultant completes the provision of the Services to the Company under this Agreement, or (b) the date Consultant shall have been paid the maximum amount of consulting fees as provided in Exhibit B hereto.
Notwithstanding the above, either party may terminate this Agreement at any time upon two (2) months written notice. In the event of such termination, Consultant shall be paid for any portion of the Services that have been performed prior to the termination and maintain all issued royalties or commissions.
Should either party default in the performance of this Agreement or materially breach any of its obligations under this Agreement, including but not limited to Consultant’s obligations under the Confidential Information between the Company and Consultant referenced below, the non-breaching party may terminate this Agreement immediately if the breaching party fails to cure the breach within ten (10) business days after having received written notice by the non-breaching party of the breach or default.
5. Independent Contractor. Consultant’s relationship with the Company will be that of an independent contractor and not that of an employee.
6. Method of Provision of Services. Consultant shall be solely responsible for determining the method, details and means of performing the Services. Consultant may, at Consultant’s own expense, employ or engage the services of such employees, subcontractors, partners or agents, as Consultant deems necessary to perform the Services (collectively, the “ Assistants ”). The Assistants are not and shall not be employees of the Company, and Consultant shall be wholly responsible for the professional performance of the Services by the Assistants such that the results are satisfactory to the Company. Consultant shall expressly advise the Assistants of the terms of this Agreement, and shall require each Assistant to execute and deliver to the Company a Confidential Information and Invention Assignment Agreement substantially in the form attached to this Agreement as Exhibit D hereto (the “ Confidentiality Agreement ”).
7. No Authority to Bind Company. Consultant acknowledges and agrees that Consultant and its Assistants have no authority to enter into contracts that bind the Company or create obligations on the part of the Company without the prior written authorization of the Company.
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8. No Benefits. Consultant acknowledges and agrees that Consultant and its Assistants shall not be eligible for any Company employee benefits and, to the extent Consultant otherwise would be eligible for any Company employee benefits but for the express terms of this Agreement, Consultant (on behalf of itself and its employees) hereby expressly declines to participate in such Company employee benefits.
9. Withholding; Indemnification. Consultant shall have full responsibility for applicable withholding taxes for all compensation paid to Consultant or its Assistants under this Agreement, and for compliance with all applicable labor and employment requirements with respect to Consultant’s self-employment, sole proprietorship or other form of business organization, and with respect to the Assistants, including state worker’s compensation insurance coverage requirements and any U.S. immigration visa requirements. Consultant agrees to indemnify, defend and hold the Company harmless from any liability for, or assessment of, any claims or penalties with respect to such withholding taxes, labor or employment requirements, including any liability for, or assessment of, withholding taxes imposed on the Company by the relevant taxing authorities with respect to any compensation paid to Consultant or its Assistants.
10. Supervision of Consultant’s Services. All of the services to be performed by Consultant, including but not limited to the Services, will be as agreed between Consultant and the Company’s CEO, Brian Kupchik. Consultant will be required to report to the CEO concerning the Services performed under this Agreement. The nature and frequency of these reports will be left to the discretion of the CEO.
11. Consulting or Other Services for Competitors. Consultant represents and warrants that Consultant does not presently perform or intend to perform, during the term of the Agreement, consulting or other services for, or engage in or intend to engage in an employment relationship with, companies who businesses or proposed businesses in any way involve products or services which would be competitive with the Company’s products or services, or those products or services proposed or in development by the Company during the term of the Agreement (except for those companies, if any, listed on Exhibit E hereto). If, however, Consultant decides to do so, Consultant agrees that, in advance of accepting such work, Consultant will promptly notify the Company in writing, specifying the organization with which Consultant proposes to consult, provide services, or become employed by and to provide information sufficient to allow the Company to determine if such work would conflict with the terms of this Agreement, including the terms of the Confidentiality Agreement, the interests of the Company or further services which the Company might request of Consultant. In addition, prior to accepting an engagement with such other entity, Consultant will advise such other entity of the existence of this Agreement and the Confidential Information and Invention Assignment Agreement. If the Company determines that such work conflicts with the terms of this Agreement, the Company reserves the right to terminate this Agreement immediately. In no event shall any of the Services be performed for the Company at the facilities of a third party or using the resources of a third party.
12. Confidentiality Agreement. Consultant shall sign, or has signed, the Confidential Information and Invention Assignment Agreement, on or before the date Consultant begins providing the Services.
13. Conflicts with this Agreement. Consultant represents and warrants that neither Consultant nor any of the Assistants is under any pre-existing obligation in conflict or in any way inconsistent with the provisions of this Agreement. Consultant represents and warrants that Consultant’s performance of all the terms of this Agreement will not breach any agreement to keep in confidence proprietary information acquired by Consultant in confidence or in trust prior to commencement of this Agreement. Consultant warrants that Consultant has the right to disclose and/or or use all ideas, processes, techniques and other information, if any, which Consultant has gained from third parties, and which Consultant discloses to the Company or uses in the course of performance of this Agreement, without liability to such third parties. Notwithstanding the foregoing, Consultant agrees that Consultant shall not bundle with or incorporate into any deliveries provided to the Company herewith any third party products, ideas, processes, or other techniques, without the express, written prior approval of the Company. Consultant represents and warrants that Consultant has not granted and will not grant any rights or licenses to any intellectual property or technology that would conflict with Consultant’s obligations under this Agreement. Consultant will not knowingly infringe upon any copyright, patent, trade secret or other property right of any former client, employer or third party in the performance of the Services.
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14. Miscellaneous.
(a) Amendments and Waivers. Any term of this Agreement may be amended or waived only with the written consent of the Company.
(b) Sole Agreement. This Agreement, including the Exhibits hereto, constitutes the sole agreement of the parties and supersedes all oral negotiations and prior writings with respect to the subject matter hereof.
(c) Notices. Any notice required or permitted by this Agreement shall be in writing and shall be deemed sufficient upon delivery, when delivered personally or by overnight courier or sent by email or fax (upon customary confirmation of receipt), or forty-eight (48) hours after being deposited in the U.S. mail as certified or registered mail with postage prepaid, addressed to the party to be notified at such party’s address or fax number as set forth on the signature page or as subsequently modified by written notice.
(d) Choice of Law. The validity, interpretation, construction and performance of this Agreement shall be governed by the laws of the State of New York, without giving effect to the principles of conflict of laws.
(e) Severability. If one or more provisions of this Agreement are held to be unenforceable under applicable law, the parties agree to renegotiate such provision in good faith. In the event that the parties cannot reach a mutually agreeable and enforceable replacement for such provision, then (i) such provision shall be excluded from this Agreement, (ii) the balance of the Agreement shall be interpreted as if such provision were so excluded and (iii) the balance of the Agreement shall be enforceable in accordance with its terms.
(f) Counterparts. This Agreement may be executed in counterparts, each of which shall be deemed an original, but all of which together will constitute one and the same instrument.
(g) Advice of Counsel. EACH PARTY ACKNOWLEDGES THAT, IN EXECUTING THIS AGREEMENT, SUCH PARTY HAS HAD THE OPPORTUNITY TO SEEK THE ADVICE OF INDEPENDENT LEGAL COUNSEL, AND HAS READ AND UNDERSTOOD ALL OF THE TERMS AND PROVISIONS OF THIS AGREEMENT. THIS AGREEMENT SHALL NOT BE CONSTRUED AGAINST ANY PARTY BY REASON OF THE DRAFTING OR PREPARATION HEREOF.
[Signature Page Follows]
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The parties have executed this Agreement as of the date first written above.
THE COMPANY: | CONSULTANT: | ||
APPSOFT TECHNOLOGIES, INC. | MARC A. SEAL | ||
By: | |||
Brian Kupchik, Chief Executive Officer | (Signature) | |||
Address: |
1225 Franklin Avenue, Suite 325 Garden City, NY 11530 |
Address: |
246 N Rutherford Avenue Massapequa, NY 11758 |
|
email: bkupchik@appsofttechnologies.com | email: | MarcSeal20@gmail.com | ||
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EXHIBIT A
DESCRIPTION OF CONSULTING SERVICES
Description of Services: Development, including the completion of the development of the Zombie Chomp and Petrio games referred to in Exhibit B.
Schedule/Deadline: | 2 years |
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EXHIBIT B
COMPENSATION
Cash Compensation
For Services to be rendered by Consultant under this Agreement, the Company shall pay to Consultant $3,500 per month on the first (1 st ) day of each month until the end of the term set forth in Exhibit A or until the Services are completed. Unless otherwise agreed upon in writing by Company, the Company’s maximum liability for all Services performed during the term of this Agreement shall not exceed $100,000.
Stock Compensation
Upon the execution of this Agreement, the Company will issue 85,000 shares of common stock to Mr. Seal.
Royalty
(a) The Company shall pay to Consultant royalties based on the Net Profit (as hereafter defined ) generated by the Company from the publication of the mobile application game “Zombie Chomp” (the current working title and is subject to change) in the amounts provided on Exhibit D-1.
(b) The Company shall pay to Consultant royalties based on the Net Profit generated by the Company from the publication of the game software “Petrio” (the current working title and is subject to change) in the amounts provided on Exhibit D-2 .
(c) For purposes of this Agreement, the term “Net Profits” means net profits generated by AppSoft from sales of the referenced item calc ulated, for all purposes, in accordance with generally accepted accounting principles .
(d) The royalties provided for in this Agreement shall be payable commencing as of the date that the Company commences generating revenue from the reference product. The “release” date shall be determined by an official publically announced release build and date in which the product is available to the general consumer market. By way of clarification, “release” will not be determined by any testing phases such as Alpha or Beta builds, whether private or public and includes the development phase, as contemplated by the royalty payable in the first row of the table appearing in Exhibit D.
(e) All payments to Mr. Seal under this Agreement shall be made within ninety (90) days of the close of each fiscal quarter.
(f) Upon thirty (30) days’ prior written notice from Mr. Seal, AppSoft shall permit an independent certified public accounting firm selected by Mr. Seal and reasonably acceptable to AppSoft, at Mr. Seal’s expense, to have access during normal business hours to examine the pertinent books and records of AppSoft as may be reasonably necessary to verify the accuracy of the royalties payable to Mr. Seal hereunder. The examination shall be limited to the pertinent books and records for any year ending not more than twenty-four (24) months prior to the date of such request. An examination under this Section 3(g) shall not occur more than once in any calendar year. The accounting firm shall disclose to Mr. Seal only whether the royalties payable to Mr. Seal are correct or incorrect and the specific details concerning any discrepancies. No other information shall be provided to Mr. Seal. Any such accounting firms shall sign a confidentiality agreement (in form and substance reasonably acceptable to AppSoft) as to any of AppSoft’s confidential information that such accounting firms are provided, or to which they have access, while conducting any audit pursuant to this Section 3(g). If such accounting firm correctly concludes that additional royalties were owed during such period, AppSoft shall pay such additional royalties within sixty (60) days of the date Mr. Seal delivers to AppSoft such accounting firm’s written report so correctly concluding. If such underpayment exceeds three percent (3%) of the sums correctly due Mr. Seal then the reasonable fees charged by such accounting firm for the work associated with the underpayment audit shall be paid by AppSoft. For clarity, in all other circumstances the fees charged by such accounting firm for the work associated with the underpayment audit shall be paid by Mr. Seal. Any overpayments by AppSoft will be credited against future royalty obligations or at Licensee’s request, promptly refunded to Licensee.
Page 6 of 8 |
EXHIBIT C
CONFIDENTIAL INFORMATION
AGREEMENT
Intentionally omitted.
Page 7 of 8 |
EXHIBIT D
ROYALTIES SCALE
D-1 | Zombie Chomp (Working Title) |
Period | Royalty Amount | |
Pre-Release (development) | 15% | |
Year 1 | 15% | |
Year 2 | 12% | |
Year 3 | 8% | |
Year 4 | 5% | |
Year 5+ | 3% |
D-2 | Petrio (Working Title) |
Period | Royalty Amount | |
Pre-Release (development) | 10% | |
Year 1 | 10% | |
Year 2 | 7% | |
Year 3 | 6% | |
Year 4 | 5% | |
Year 5+ | 3% |
Page 8 of 8 |
Exhibit 99.8
CONSULTING AGREEMENT
This Consulting Agreement (this “ Agreement ”) is made as of June 10, 2016, by and between AppSoft Technologies, Inc., a Nevada corporation (the “ Company ”), and Nathan Cavanaugh (“ Consultant ”).
1. Consulting Relationship. During the term of this Agreement, Consultant will provide consulting services to the Company as described on Exhibit A hereto (the “ Services ”). Consultant represents that Consultant is duly licensed (if applicable) and has the qualifications, the experience and the ability to properly perform the Services. Consultant shall use Consultant’s best efforts to perform the Services such that the results are satisfactory to the Company
2. Fees. As consideration for the Services to be provided by Consultant and other obligations, the Company shall pay to Consultant the amounts specified in Exhibit B hereto at the times specified therein.
3. Expenses. Consultant shall not be authorized to incur on behalf of the Company any expenses and will be responsible for all expenses incurred while performing the Services unless otherwise agreed to by the Company’s President, which consent shall be evidenced in writing for any expenses in excess of $500.00. As a condition to receipt of reimbursement, Consultant shall be required to submit to the Company reasonable evidence that the amount involved was both reasonable and necessary to the Services provided under this Agreement.
4. Term and Termination. Consultant shall serve as a consultant to the Company for a period commencing on June 10, 2016 and terminating on the earlier of (a) the date Consultant completes the provision of the Services to the Company under this Agreement, or (b) the date Consultant shall have been paid the maximum amount of consulting fees as provided in Exhibit B hereto.
Notwithstanding the above, either party may terminate this Agreement at any time upon two (2) months written notice. In the event of such termination, Consultant shall be paid for any portion of the Services that have been performed prior to the termination.
Should either party default in the performance of this Agreement or materially breach any of its obligations under this Agreement, including but not limited to Consultant’s obligations under the Confidential Information and Invention Assignment Agreement between the Company and Consultant referenced below, the non-breaching party may terminate this Agreement immediately if the breaching party fails to cure the breach within ten (10) business days after having received written notice by the non-breaching party of the breach or default.
5. Independent Contractor. Consultant’s relationship with the Company will be that of an independent contractor and not that of an employee.
6. Method of Provision of Services. Consultant shall be solely responsible for determining the method, details and means of performing the Services. Consultant may, at Consultant’s own expense, employ or engage the services of such employees, subcontractors, partners or agents, as Consultant deems necessary to perform the Services (collectively, the “ Assistants ”). The Assistants are not and shall not be employees of the Company, and Consultant shall be wholly responsible for the professional performance of the Services by the Assistants such that the results are satisfactory to the Company. Consultant shall expressly advise the Assistants of the terms of this Agreement, and shall require each Assistant to execute and deliver to the Company a Confidential Information and Invention Assignment substantially in the form attached to this Agreement as Exhibit D hereto (the “ Confidentiality Agreement ”).
7. Authority to Bind Company. Consultant acknowledges and agrees that Consultant and its Assistants have no authority to enter into contracts that bind the Company or create obligations on the part of the Company without the prior written authorization of the Company.
8. No Benefits. Consultant acknowledges and agrees that Consultant and its Assistants shall not be eligible for any Company employee benefits and, to the extent Consultant otherwise would be eligible for any Company employee benefits but for the express terms of this Agreement, Consultant (on behalf of itself and its employees) hereby expressly declines to participate in such Company employee benefits.
9. Withholding; Indemnification. Consultant shall have full responsibility for applicable withholding taxes for all compensation paid to Consultant or its Assistants under this Agreement, and for compliance with all applicable labor and employment requirements with respect to Consultant’s self-employment, sole proprietorship or other form of business organization, and with respect to the Assistants, including state worker’s compensation insurance coverage requirements and any U.S. immigration visa requirements. Consultant agrees to indemnify, defend and hold the Company harmless from any liability for, or assessment of, any claims or penalties with respect to such withholding taxes, labor or employment requirements, including any liability for, or assessment of, withholding taxes imposed on the Company by the relevant taxing authorities with respect to any compensation paid to Consultant or its Assistants.
10. Supervision of Consultant’s Services. All of the services to be performed by Consultant, including but not limited to the Services, will be as agreed between Consultant and the Company’s CEO, Brian Kupchik. Consultant will be required to report to the CEO concerning the Services performed under this Agreement. The nature and frequency of these reports will be left to the discretion of the CEO.
11. Consulting or Other Services for Competitors. Consultant represents and warrants that Consultant does not presently perform or intend to perform, during the term of the Agreement, consulting or other services for, or engage in or intend to engage in an employment relationship with, companies who businesses or proposed businesses in any way involve products or services which would be competitive with the Company’s products or services, or those products or services proposed or in development by the Company during the term of the Agreement (except for those companies, if any, listed on Exhibit E hereto). If, however, Consultant decides to do so, Consultant agrees that, in advance of accepting such work, Consultant will promptly notify the Company in writing, specifying the organization with which Consultant proposes to consult, provide services, or become employed by and to provide information sufficient to allow the Company to determine if such work would conflict with the terms of this Agreement, including the terms of the Confidentiality Agreement, the interests of the Company or further services which the Company might request of Consultant. If the Company determines that such work conflicts with the terms of this Agreement, the Company reserves the right to terminate this Agreement immediately. In no event shall any of the Services be performed for the Company at the facilities of a third party or using the resources of a third party.
12. Confidentiality Agreement. Consultant shall sign, or has signed, a Confidentiality Agreement, on or before the date Consultant begins providing the Services.
13. Conflicts with this Agreement. Consultant represents and warrants that neither Consultant nor any of the Assistants is under any pre-existing obligation in conflict or in any way inconsistent with the provisions of this Agreement. Consultant represents and warrants that Consultant’s performance of all the terms of this Agreement will not breach any agreement to keep in confidence proprietary information acquired by Consultant in confidence or in trust prior to commencement of this Agreement. Consultant warrants that Consultant has the right to disclose and/or or use all ideas, processes, techniques and other information, if any, which Consultant has gained from third parties, and which Consultant discloses to the Company or uses in the course of performance of this Agreement, without liability to such third parties. Notwithstanding the foregoing, Consultant agrees that Consultant shall not bundle with or incorporate into any deliveries provided to the Company herewith any third party products, ideas, processes, or other techniques, without the express, written prior approval of the Company. Consultant represents and warrants that Consultant has not granted and will not grant any rights or licenses to any intellectual property or technology that would conflict with Consultant’s obligations under this Agreement. Consultant will not knowingly infringe upon any copyright, patent, trade secret or other property right of any former client, employer or third party in the performance of the Services.
14. Miscellaneous.
(a) Amendments and Waivers. Any term of this Agreement may be amended or waived only with the written consent of the Company.
(b) Sole Agreement. This Agreement, including the Exhibits hereto, constitutes the sole agreement of the parties and supersedes all oral negotiations and prior writings with respect to the subject matter hereof.
(c) Notices. Any notice required or permitted by this Agreement shall be in writing and shall be deemed sufficient upon delivery, when delivered personally or by overnight courier or sent by email or fax (upon customary confirmation of receipt), or forty-eight (48) hours after being deposited in the U.S. mail as certified or registered mail with postage prepaid, addressed to the party to be notified at such party’s address or fax number as set forth on the signature page or as subsequently modified by written notice.
(d) Choice of Law. The validity, interpretation, construction and performance of this Agreement shall be governed by the laws of the State of Nevada, without giving effect to the principles of conflict of laws.
(e) Severability. If one or more provisions of this Agreement are held to be unenforceable under applicable law, the parties agree to renegotiate such provision in good faith. In the event that the parties cannot reach a mutually agreeable and enforceable replacement for such provision, then (i) such provision shall be excluded from this Agreement, (ii) the balance of the Agreement shall be interpreted as if such provision were so excluded and (iii) the balance of the Agreement shall be enforceable in accordance with its terms.
(f) Counterparts. This Agreement may be executed in counterparts, each of which shall be deemed an original, but all of which together will constitute one and the same instrument.
(g) Advice of Counsel. EACH PARTY ACKNOWLEDGES THAT, IN EXECUTING THIS AGREEMENT, SUCH PARTY HAS HAD THE OPPORTUNITY TO SEEK THE ADVICE OF INDEPENDENT LEGAL COUNSEL, AND HAS READ AND UNDERSTOOD ALL OF THE TERMS AND PROVISIONS OF THIS AGREEMENT. THIS AGREEMENT SHALL NOT BE
CONSTRUED AGAINST ANY PARTY BY REASON OF THE DRAFTING OR PREPARATION HEREOF.
The parties have executed this Agreement as of the date first written above.
CONSULTANT | COMPANY: | ||
NATHAN CAVANAUGH | APPSOFT TECHNOLOGIES, INC. | ||
By: | /s/ Nathan Cavanaugh | By: | /s/ Brian Kupchik |
Name: | Brian Kupchik | |
Title: | CEO |
Address: | 1000 N West St #1200 | Address: | 1225 Franklin Avenue, Suite 325 |
Wilmington, DE 19801 | Garden City, NY 11530 | ||
email: | nate@guuf.com | email: | bkupchik@appsofttechnologies.com |
EXHIBIT A
DESCRIPTION OF CONSULTING SERVICES
Description of Services: | Development, strategy and other items related to game tournament products and projects. |
Schedule/Deadline: | 2 years |
EXHIBIT B
COMPENSATION
Cash Compensation
For Services rendered by Consultant under this Agreement, the Company shall pay Consultant at the rate of $150 per hour.
per hour, payable monthly on or about the first day of each month. Company’s maximum liability for all services performed during the term of this Agreement shall not exceed $5,000 per month.
Expenses
Consultant is authorized to incur the following expenses: Software Subscription or licenses, App or in app purchases, conventions/ trade shows, travel. All must be approved by CEO to be eligible for reimbursement.
EXHIBIT C
CONFIDENTIAL INFORMATION AND
INVENTION ASSIGNMENT AGREEMENT
Intentionally omitted.
EXHIBIT D
LIST OF EXCLUDED COMPANIES UNDER SECTION 11
None.
Exhibit 99.9
CONSULTING AGREEMENT
This Consulting Agreement (this “ Agreement ”) is made as of June 10, 2016, by and between AppSoft Technologies, Inc., a Nevada corporation (the “ Company ”), and Seven Plus Two LLC (“ Consultant ”).
1. Consulting Relationship. During the term of this Agreement, Consultant will provide consulting services to the Company as described on Exhibit A hereto (the “ Services ”). Consultant represents that Consultant is duly licensed (if applicable) and has the qualifications, the experience and the ability to properly perform the Services. Consultant shall use Consultant’s best efforts to perform the Services such that the results are satisfactory to the Company. Consultant shall devote at least 20 hours per month to performance of the Services.
2. Fees. As consideration for the Services to be provided by Consultant and other obligations, the Company shall pay to Consultant the amounts specified in Exhibit B hereto at the times specified therein.
3. Expenses. Consultant shall not be authorized to incur on behalf of the Company any expenses and will be responsible for all expenses incurred while performing the Services unless otherwise agreed to by the Company’s President, which consent shall be evidenced in writing for any expenses in excess of $50.00. As a condition to receipt of reimbursement, Consultant shall be required to submit to the Company reasonable evidence that the amount involved was both reasonable and necessary to the Services provided under this Agreement.
4. Term and Termination. Consultant shall serve as a consultant to the Company for a period commencing on June 10, 2016 and terminating on the earlier of (a) the date Consultant completes the provision of the Services to the Company under this Agreement, or (b) the date Consultant shall have been paid the maximum amount of consulting fees as provided in Exhibit B hereto.
Notwithstanding the above, either party may terminate this Agreement at any time upon three (2) weeks written notice. In the event of such termination, Consultant shall be paid for any portion of the Services that have been performed prior to the termination.
Should either party default in the performance of this Agreement or materially breach any of its obligations under this Agreement, including but not limited to Consultant’s obligations under the Confidential Information and Invention Assignment Agreement between the Company and Consultant referenced below, the non-breaching party may terminate this Agreement immediately if the breaching party fails to cure the breach within ten (10) business days after having received written notice by the non-breaching party of the breach or default.
5. Independent Contractor. Consultant’s relationship with the Company will be that of an independent contractor and not that of an employee.
6. Method of Provision of Services. Consultant shall be solely responsible for determining the method, details and means of performing the Services. Consultant may, at Consultant’s own expense, employ or engage the services of such employees, subcontractors, partners or agents, as Consultant deems necessary to perform the Services (collectively, the “ Assistants ”). The Assistants are not and shall not be employees of the Company, and Consultant shall be wholly responsible for the professional performance of the Services by the Assistants such that the results are satisfactory to the Company. Consultant shall expressly advise the Assistants of the terms of this Agreement, and shall require each Assistant to execute and deliver to the Company a Confidential Information and Invention Assignment Agreement substantially in the form attached to this Agreement as Exhibit D hereto (the “ Confidentiality Agreement ”).
7. No Authority to Bind Company. Consultant acknowledges and agrees that Consultant and its Assistants have no authority to enter into contracts that bind the Company or create obligations on the part of the Company without the prior written authorization of the Company.
8. No Benefits. Consultant acknowledges and agrees that Consultant and its Assistants shall not be eligible for any Company employee benefits and, to the extent Consultant otherwise would be eligible for any Company employee benefits but for the express terms of this Agreement, Consultant (on behalf of itself and its employees) hereby expressly declines to participate in such Company employee benefits.
9. Withholding; Indemnification. Consultant shall have full responsibility for applicable withholding taxes for all compensation paid to Consultant or its Assistants under this Agreement, and for compliance with all applicable labor and employment requirements with respect to Consultant’s self-employment, sole proprietorship or other form of business organization, and with respect to the Assistants, including state worker’s compensation insurance coverage requirements and any U.S. immigration visa requirements. Consultant agrees to indemnify, defend and hold the Company harmless from any liability for, or assessment of, any claims or penalties with respect to such withholding taxes, labor or employment requirements, including any liability for, or assessment of, withholding taxes imposed on the Company by the relevant taxing authorities with respect to any compensation paid to Consultant or its Assistants.
10. Supervision of Consultant’s Services. All of the services to be performed by Consultant, including but not limited to the Services, will be as agreed between Consultant and the Company’s [Supervisor’s Title]. Consultant will be required to report to the [Supervisor’s Title] concerning the Services performed under this Agreement. The nature and frequency of these reports will be left to the discretion of the [Supervisor’s Title].
11. Consulting or Other Services for Competitors. Consultant represents and warrants that Consultant does not presently perform or intend to perform, during the term of the Agreement, consulting or other services for, or engage in or intend to engage in an employment relationship with, companies who businesses or proposed businesses in any way involve products or services which would be competitive with the Company’s products or services limited to the dLaw product in development by the Company during the term of the Agreement (except for those companies, if any, listed on Exhibit E hereto). If, however, Consultant decides to do so, Consultant agrees that, in advance of accepting such work, Consultant will promptly notify the Company in writing, specifying the organization with which Consultant proposes to consult, provide services, or become employed by and to provide information sufficient to allow the Company to determine if such work would conflict with the terms of this Agreement, including the terms of the Confidentiality Agreement, the interests of the Company or further services which the Company might request of Consultant. If the Company determines that such work conflicts with the terms of this Agreement, the Company reserves the right to terminate this Agreement immediately. In no event shall any of the Services be performed for the Company at the facilities of a third party or using the resources of a third party.
12. Confidentiality Agreement. Consultant shall sign, or has signed, a Confidentiality Agreement, on or before the date Consultant begins providing the Services.
13. Conflicts with this Agreement. Consultant represents and warrants that neither Consultant nor any of the Assistants is under any pre-existing obligation in conflict or in any way inconsistent with the provisions of this Agreement. Consultant represents and warrants that Consultant’s performance of all the terms of this Agreement will not breach any agreement to keep in confidence proprietary information acquired by Consultant in confidence or in trust prior to commencement of this Agreement. Consultant warrants that Consultant has the right to disclose and/or or use all ideas, processes, techniques and other information, if any, which Consultant has gained from third parties, and which Consultant discloses to the Company or uses in the course of performance of this Agreement, without liability to such third parties. Notwithstanding the foregoing, Consultant agrees that Consultant shall not bundle with or incorporate into any deliveries provided to the Company herewith any third party products, ideas, processes, or other techniques, without the express, written prior approval of the Company. Consultant represents and warrants that Consultant has not granted and will not grant any rights or licenses to any intellectual property or technology that would conflict with Consultant’s obligations under this Agreement. Consultant will not knowingly infringe upon any copyright, patent, trade secret or other property right of any former client, employer or third party in the performance of the Services.
14. Miscellaneous.
(a) Amendments and Waivers. Any term of this Agreement may be amended or waived only with the written consent of the Company.
(b) Sole Agreement. This Agreement, including the Exhibits hereto, constitutes the sole agreement of the parties and supersedes all oral negotiations and prior writings with respect to the subject matter hereof.
(c) Notices. Any notice required or permitted by this Agreement shall be in writing and shall be deemed sufficient upon delivery, when delivered personally or by overnight courier or sent by email or fax (upon customary confirmation of receipt), or forty-eight (48) hours after being deposited in the U.S. mail as certified or registered mail with postage prepaid, addressed to the party to be notified at such party’s address or fax number as set forth on the signature page or as subsequently modified by written notice.
(d) Choice of Law. The validity, interpretation, construction and performance of this Agreement shall be governed by the laws of the State of [California], without giving effect to the principles of conflict of laws.
(e) Severability. If one or more provisions of this Agreement are held to be unenforceable under applicable law, the parties agree to renegotiate such provision in good faith. In the event that the parties cannot reach a mutually agreeable and enforceable replacement for such provision, then (i) such provision shall be excluded from this Agreement, (ii) the balance of the Agreement shall be interpreted as if such provision were so excluded and (iii) the balance of the Agreement shall be enforceable in accordance with its terms.
(f) Counterparts. This Agreement may be executed in counterparts, each of which shall be deemed an original, but all of which together will constitute one and the same instrument.
(g) Advice of Counsel. EACH PARTY ACKNOWLEDGES THAT, IN EXECUTING THIS AGREEMENT, SUCH PARTY HAS HAD THE OPPORTUNITY TO SEEK THE ADVICE OF INDEPENDENT LEGAL COUNSEL, AND HAS READ AND UNDERSTOOD ALL OF THE TERMS AND PROVISIONS OF THIS AGREEMENT. THIS AGREEMENT SHALL NOT BE CONSTRUED AGAINST ANY PARTY BY REASON OF THE DRAFTING OR PREPARATION HEREOF.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first written above.
CONSULTANT | COMPANY: |
SEVEN PLUS TWO LLC | APPSOFT TECHNOLOGIES, INC. |
By: | /s/ William Johnson | By: | /s/ Brian Kupchik |
Name: | William Johnson | Name: | Brian Kupchik |
Title: | Manager | Title: | CEO |
EXHIBIT A
DESCRIPTION OF CONSULTING SERVICES
Description of Services: | Development |
Schedule/Deadline | 6 Months |
EXHIBIT B
COMPENSATION
Check applicable payment terms:
¨ For Services rendered by Consultant under this Agreement, the Company shall pay Consultant at the rate of $80.00 per hour, payable monthly. Unless otherwise agreed upon in writing by Company, Company’s maximum liability for all Services performed during the term of this Agreement shall not exceed $ 9,600.00 .
¨ Subject to Section 3, Consultant is authorized to incur the following expenses: Software Subscription or licenses, App or in app purchases.
Exhibit 99.10
CONSULTING AGREEMENT
This Consulting Agreement (this “ Agreement ”) is made as of June 10 th , 2016, by and between AppSoft Technologies, Inc., a Nevada corporation (the “ Company ”), and Gleb Kartsev (“ Consultant ”).
1. Consulting Relationship. During the term of this Agreement, Consultant will provide consulting services to the Company as described on Exhibit A hereto (the “ Services ”). Consultant represents that Consultant is duly licensed (if applicable) and has the qualifications, the experience and the ability to properly perform the Services. Consultant shall use Consultant’s best efforts to perform the Services such that the results are satisfactory to the Company. Consultant shall devote at least 25 hours per week to performance of the Services.
2. Fees. As consideration for the Services to be provided by Consultant and other obligations, the Company shall pay to Consultant the amounts specified in Exhibit B hereto at the times specified therein.
3. Expenses. Consultant shall not be authorized to incur on behalf of the Company any expenses and will be responsible for all expenses incurred while performing the Services unless otherwise agreed to by the Company’s President, which consent shall be evidenced in writing for any expenses in excess of $500.00. As a condition to receipt of reimbursement, Consultant shall be required to submit to the Company reasonable evidence that the amount involved was both reasonable and necessary to the Services provided under this Agreement.
4. Term and Termination. Consultant shall serve as a consultant to the Company for a period commencing on June 10, 2016 and terminating on the earlier of (a) the date Consultant completes the provision of the Services to the Company under this Agreement, or (b) the date Consultant shall have been paid the maximum amount of consulting fees as provided in Exhibit B hereto.
Notwithstanding the above, either party may terminate this Agreement at any time upon two (2) months written notice. In the event of such termination, Consultant shall be paid for any portion of the Services that have been performed prior to the termination.
Should either party default in the performance of this Agreement or materially breach any of its obligations under this Agreement, including but not limited to Consultant’s obligations under the Confidential Information and Invention Assignment Agreement between the Company and Consultant referenced below, the non-breaching party may terminate this Agreement immediately if the breaching party fails to cure the breach within ten (10) business days after having received written notice by the non-breaching party of the breach or default.
5. Independent Contractor. Consultant’s relationship with the Company will be that of an independent contractor and not that of an employee.
6. Method of Provision of Services. Consultant shall be solely responsible for determining the method, details and means of performing the Services. Consultant may, at Consultant’s own expense, employ or engage the services of such employees, subcontractors, partners or agents, as Consultant deems necessary to perform the Services (collectively, the “ Assistants ”). The Assistants are not and shall not be employees of the Company, and Consultant shall be wholly responsible for the professional performance of the Services by the Assistants such that the results are satisfactory to the Company. Consultant shall expressly advise the Assistants of the terms of this Agreement, and shall require each Assistant to execute and deliver to the Company a Confidential Information and Invention Assignment Agreement substantially in the form attached to this Agreement as Exhibit C hereto (the “ Confidentiality Agreement ”).
7. No Authority to Bind Company. Consultant acknowledges and agrees that Consultant and its Assistants have no authority to enter into contracts that bind the Company or create obligations on the part of the Company without the prior written authorization of the Company.
8. No Benefits. Consultant acknowledges and agrees that Consultant and its Assistants shall not be eligible for any Company employee benefits and, to the extent Consultant otherwise would be eligible for any Company employee benefits but for the express terms of this Agreement, Consultant (on behalf of itself and its employees) hereby expressly declines to participate in such Company employee benefits.
9. Withholding; Indemnification. Consultant shall have full responsibility for applicable withholding taxes for all compensation paid to Consultant or its Assistants under this Agreement, and for compliance with all applicable labor and employment requirements with respect to Consultant’s self-employment, sole proprietorship or other form of business organization, and with respect to the Assistants, including state worker’s compensation insurance coverage requirements and any U.S. immigration visa requirements. Consultant agrees to indemnify, defend and hold the Company harmless from any liability for, or assessment of, any claims or penalties with respect to such withholding taxes, labor or employment requirements, including any liability for, or assessment of, withholding taxes imposed on the Company by the relevant taxing authorities with respect to any compensation paid to Consultant or its Assistants.
10. Supervision of Consultant’s Services. All of the services to be performed by Consultant, including but not limited to the Services, will be as agreed between Consultant and the Company’s CEO, Brian Kupchik. Consultant will be required to report to the CEO concerning the Services performed under this Agreement. The nature and frequency of these reports will be left to the discretion of the CEO.
11. Consulting or Other Services for Competitors. Consultant represents and warrants that Consultant does not presently perform or intend to perform, during the term of the Agreement, consulting or other services for, or engage in or intend to engage in an employment relationship with, companies who businesses or proposed businesses in any way involve products or services which would be competitive with the Company’s products or services, or those products or services proposed or in development by the Company during the term of the Agreement (except for those companies, if any, listed on Exhibit D hereto). If, however, Consultant decides to do so, Consultant agrees that, in advance of accepting such work, Consultant will promptly notify the Company in writing, specifying the organization with which Consultant proposes to consult, provide services, or become employed by and to provide information sufficient to allow the Company to determine if such work would conflict with the terms of this Agreement, including the terms of the Confidentiality Agreement, the interests of the Company or further services which the Company might request of Consultant. If the Company determines that such work conflicts with the terms of this Agreement, the Company reserves the right to terminate this Agreement immediately. In no event shall any of the Services be performed for the Company at the facilities of a third party or using the resources of a third party.
12. Confidentiality Agreement. Consultant shall sign, or has signed, a Confidentiality Agreement, on or before the date Consultant begins providing the Services.
13. Conflicts with this Agreement. Consultant represents and warrants that neither Consultant nor any of the Assistants is under any pre-existing obligation in conflict or in any way inconsistent with the provisions of this Agreement. Consultant represents and warrants that Consultant’s performance of all the terms of this Agreement will not breach any agreement to keep in confidence proprietary information acquired by Consultant in confidence or in trust prior to commencement of this Agreement. Consultant warrants that Consultant has the right to disclose and/or or use all ideas, processes, techniques and other information, if any, which Consultant has gained from third parties, and which Consultant discloses to the Company or uses in the course of performance of this Agreement, without liability to such third parties. Notwithstanding the foregoing, Consultant agrees that Consultant shall not bundle with or incorporate into any deliveries provided to the Company herewith any third party products, ideas, processes, or other techniques, without the express, written prior approval of the Company. Consultant represents and warrants that Consultant has not granted and will not grant any rights or licenses to any intellectual property or technology that would conflict with Consultant’s obligations under this Agreement. Consultant will not knowingly infringe upon any copyright, patent, trade secret or other property right of any former client, employer or third party in the performance of the Services.
14. Miscellaneous.
(a) Amendments and Waivers. Any term of this Agreement may be amended or waived only with the written consent of the Company.
(b) Sole Agreement. This Agreement, including the Exhibits hereto, constitutes the sole agreement of the parties and supersedes all oral negotiations and prior writings with respect to the subject matter hereof.
(c) Notices. Any notice required or permitted by this Agreement shall be in writing and shall be deemed sufficient upon delivery, when delivered personally or by overnight courier or sent by email or fax (upon customary confirmation of receipt), or forty-eight (48) hours after being deposited in the U.S. mail as certified or registered mail with postage prepaid, addressed to the party to be notified at such party’s address or fax number as set forth on the signature page or as subsequently modified by written notice.
(d) Choice of Law. The validity, interpretation, construction and performance of this Agreement shall be governed by the laws of the State of [Nevada], without giving effect to the principles of conflict of laws.
(e) Severability. If one or more provisions of this Agreement are held to be unenforceable under applicable law, the parties agree to renegotiate such provision in good faith. In the event that the parties cannot reach a mutually agreeable and enforceable replacement for such provision, then (i) such provision shall be excluded from this Agreement, (ii) the balance of the Agreement shall be interpreted as if such provision were so excluded and (iii) the balance of the Agreement shall be enforceable in accordance with its terms.
(f) Counterparts. This Agreement may be executed in counterparts, each of which shall be deemed an original, but all of which together will constitute one and the same instrument.
(g) Advice of Counsel. EACH PARTY ACKNOWLEDGES THAT, IN EXECUTING THIS AGREEMENT, SUCH PARTY HAS HAD THE OPPORTUNITY TO SEEK THE ADVICE OF INDEPENDENT LEGAL COUNSEL, AND HAS READ AND UNDERSTOOD ALL OF THE TERMS AND PROVISIONS OF THIS AGREEMENT. THIS AGREEMENT SHALL NOT BE CONSTRUED AGAINST ANY PARTY BY REASON OF THE DRAFTING OR PREPARATION HEREOF.
The parties have executed this Agreement as of the date first written above.
CONSULTANT | COMPANY: | ||||
GLEB KARTSEV | APPSOFT TECHNOLOGIES, INC. | ||||
By: | /s/ Gleb Kartsev | By: | /s/ Brian Kupchik | ||
Name: | Brian Kupchik | ||||
Title: | CEO | ||||
Address: | 2944 West 5th St apt 23 B | Address: | 1225 Franklin Avenue, Suite 325 |
Brooklyn NY 11224 | Garden City, NY 11530 | ||
email: | KartsevGleb@gmail.com | email: | bkupchik@appsofttechnologies.com |
EXHIBIT A
DESCRIPTION OF CONSULTING SERVICES
Description of Services: Manage the various teams that are tasked with working on app development projects
Schedule/Deadline: 2 years
EXHIBIT B
COMPENSATION
Cash Compensation
For Services rendered by Consultant under this Agreement, the Company shall pay Consultant at the rate of $2,000.00 per month.
Stock Compensation:
The Company will issue to Consultant Thirty Thousand (30,000) shares of common stock upon signing of this Agreement.
For Services rendered by Consultant under this Agreement, the Company shall issue to the Consultant 5,000 shares of common stock in each of July, August, September and October 2016 on or about the first (1 st ) of each month.
The Company’s obligation to issue the shares of common stock to the persons named in the table above is subject to its prior receipt from each such person of a completed and signed Investment Intent Letter to be provided to Consultant by the Company.
Royalty:
The Company shall pay to Consultant a royalty equal to 25% of the net profit (as such term is defined under generally accepted accounting principles) generated by the Company from the sale of “WTFIT and PlanIT Pro” applications (the current working title) during development and for a period of two (2) years after “release” (release is determined by an official publically announced release build and date on which the product is available to the general consumer market). For purposes of this paragraph, “release” will not be determined by any testing phases such as Alpha or Beta builds whether private or public, in each respective market (platform and region), then following a scale per Exhibit E, below and shall in no event be less than 5%.
Expenses:
Subject to Section 3, Consultant is authorized to incur the following expenses: Software Subscription or licenses, App or in app purchases, conventions/ trade shows, travel. Cell phone will be provided.
EXHIBIT C
CONFIDENTIAL INFORMATION AND INVENTION ASSIGNMENT AGREEMENT
Intentionally omitted.
EXHIBIT D
LIST OF EXCLUDED COMPANIES UNDER SECTION 11
None.
EXHIBIT E
ROYALTY SCALE
Year | Royalty Percentage | |||
1 | 25% | |||
2 | 25% | |||
3 | 15% | |||
4 | 10% | |||
5+ | 5% |
Exhibit 99.11
CONSULTING AGREEMENT
This Consulting Agreement (this “ Agreement ”) is made as of June 10, 2016, by and between AppSoft Technologies, Inc., a Nevada corporation (the “ Company ”), and Joseph Cheng (“ Consultant ”).
1. Consulting Relationship. During the term of this Agreement, Consultant will provide consulting services to the Company as described on Exhibit A hereto (the “ Services ”). Consultant represents that Consultant is duly licensed (if applicable) and has the qualifications, the experience and the ability to properly perform the Services. Consultant shall use Consultant’s best efforts to perform the Services such that the results are satisfactory to the Company. Consultant shall devote at least 25 hours per week to performance of the Services.
2. Fees. As consideration for the Services to be provided by Consultant and other obligations, the Company shall pay to Consultant the amounts specified in Exhibit B hereto at the times specified therein.
3. Expenses. Consultant shall not be authorized to incur on behalf of the Company any expenses and will be responsible for all expenses incurred while performing the Services unless otherwise agreed to by the Company’s President, which consent shall be evidenced in writing for any expenses in excess of $500.00. As a condition to receipt of reimbursement, Consultant shall be required to submit to the Company reasonable evidence that the amount involved was both reasonable and necessary to the Services provided under this Agreement.
4. Term and Termination. Consultant shall serve as a consultant to the Company for a period commencing on June 10, 2016 and terminating on the earlier of (a) the date Consultant completes the provision of the Services to the Company under this Agreement, or (b) the date Consultant shall have been paid the maximum amount of consulting fees as provided in Exhibit B hereto.
Notwithstanding the above, either party may terminate this Agreement at any time upon two (2) months written notice. In the event of such termination, Consultant shall be paid for any portion of the Services that have been performed prior to the termination.
Should either party default in the performance of this Agreement or materially breach any of its obligations under this Agreement, including but not limited to Consultant’s obligations under the Confidential Information and Invention Assignment Agreement between the Company and Consultant referenced below, the non-breaching party may terminate this Agreement immediately if the breaching party fails to cure the breach within ten (10) business days after having received written notice by the non-breaching party of the breach or default.
5. Independent Contractor. Consultant’s relationship with the Company will be that of an independent contractor and not that of an employee.
6. Method of Provision of Services. Consultant shall be solely responsible for determining the method, details and means of performing the Services. Consultant may, at Consultant’s own expense, employ or engage the services of such employees, subcontractors, partners or agents, as Consultant deems necessary to perform the Services (collectively, the “ Assistants ”). The Assistants are not and shall not be employees of the Company, and Consultant shall be wholly responsible for the professional performance of the Services by the Assistants such that the results are satisfactory to the Company. Consultant shall expressly advise the Assistants of the terms of this Agreement, and shall require each Assistant to execute and deliver to the Company a Confidential Information and Invention Assignment Agreement substantially in the form attached to this Agreement as Exhibit C hereto (the “ Confidentiality Agreement ”).
7. No Authority to Bind Company. Consultant acknowledges and agrees that Consultant and its Assistants have no authority to enter into contracts that bind the Company or create obligations on the part of the Company without the prior written authorization of the Company.
8. No Benefits. Consultant acknowledges and agrees that Consultant and its Assistants shall not be eligible for any Company employee benefits and, to the extent Consultant otherwise would be eligible for any Company employee benefits but for the express terms of this Agreement, Consultant (on behalf of itself and its employees) hereby expressly declines to participate in such Company employee benefits.
9. Withholding; Indemnification. Consultant shall have full responsibility for applicable withholding taxes for all compensation paid to Consultant or its Assistants under this Agreement, and for compliance with all applicable labor and employment requirements with respect to Consultant’s self-employment, sole proprietorship or other form of business organization, and with respect to the Assistants, including state worker’s compensation insurance coverage requirements and any U.S. immigration visa requirements. Consultant agrees to indemnify, defend and hold the Company harmless from any liability for, or assessment of, any claims or penalties with respect to such withholding taxes, labor or employment requirements, including any liability for, or assessment of, withholding taxes imposed on the Company by the relevant taxing authorities with respect to any compensation paid to Consultant or its Assistants.
10. Supervision of Consultant’s Services. All of the services to be performed by Consultant, including but not limited to the Services, will be as agreed between Consultant and the Company’s CEO, Brian Kupchik. Consultant will be required to report to the CEO concerning the Services performed under this Agreement. The nature and frequency of these reports will be left to the discretion of the CEO.
11. Consulting or Other Services for Competitors. Consultant represents and warrants that Consultant does not presently perform or intend to perform, during the term of the Agreement, consulting or other services for, or engage in or intend to engage in an employment relationship with, companies who businesses or proposed businesses in any way involve products or services which would be competitive with the Company’s products or services, or those products or services proposed or in development by the Company during the term of the Agreement. If, however, Consultant decides to do so, Consultant agrees that, in advance of accepting such work, Consultant will promptly notify the Company in writing, specifying the organization with which Consultant proposes to consult, provide services, or become employed by and to provide information sufficient to allow the Company to determine if such work would conflict with the terms of this Agreement, including the terms of the Confidentiality Agreement, the interests of the Company or further services which the Company might request of Consultant. If the Company determines that such work conflicts with the terms of this Agreement, the Company reserves the right to terminate this Agreement immediately. In no event shall any of the Services be performed for the Company at the facilities of a third party or using the resources of a third party.
12. Confidentiality Agreement. Consultant shall sign, or has signed, a Confidentiality Agreement, on or before the date Consultant begins providing the Services.
13. Conflicts with this Agreement. Consultant represents and warrants that neither Consultant nor any of the Assistants is under any pre-existing obligation in conflict or in any way inconsistent with the provisions of this Agreement. Consultant represents and warrants that Consultant’s performance of all the terms of this Agreement will not breach any agreement to keep in confidence proprietary information acquired by Consultant in confidence or in trust prior to commencement of this Agreement. Consultant warrants that Consultant has the right to disclose and/or or use all ideas, processes, techniques and other information, if any, which Consultant has gained from third parties, and which Consultant discloses to the Company or uses in the course of performance of this Agreement, without liability to such third parties. Notwithstanding the foregoing, Consultant agrees that Consultant shall not bundle with or incorporate into any deliveries provided to the Company herewith any third party products, ideas, processes, or other techniques, without the express, written prior approval of the Company. Consultant represents and warrants that Consultant has not granted and will not grant any rights or licenses to any intellectual property or technology that would conflict with Consultant’s obligations under this Agreement. Consultant will not knowingly infringe upon any copyright, patent, trade secret or other property right of any former client, employer or third party in the performance of the Services.
14. Miscellaneous.
(a) Amendments and Waivers . Any term of this Agreement may be amended or waived only with the written consent of the Company.
(b) Sole Agreement . This Agreement, including the Exhibits hereto, constitutes the sole agreement of the parties and supersedes all oral negotiations and prior writings with respect to the subject matter hereof.
(c) Notices . Any notice required or permitted by this Agreement shall be in writing and shall be deemed sufficient upon delivery, when delivered personally or by overnight courier or sent by email or fax (upon customary confirmation of receipt), or forty-eight (48) hours after being deposited in the U.S. mail as certified or registered mail with postage prepaid, addressed to the party to be notified at such party’s address or fax number as set forth on the signature page or as subsequently modified by written notice.
(d) Choice of Law . The validity, interpretation, construction and performance of this Agreement shall be governed by the laws of the State of [Nevada], without giving effect to the principles of conflict of laws.
(e) Severability . If one or more provisions of this Agreement are held to be unenforceable under applicable law, the parties agree to renegotiate such provision in good faith. In the event that the parties cannot reach a mutually agreeable and enforceable replacement for such provision, then (i) such provision shall be excluded from this Agreement, (ii) the balance of the Agreement shall be interpreted as if such provision were so excluded and (iii) the balance of the Agreement shall be enforceable in accordance with its terms.
(f) Counterparts . This Agreement may be executed in counterparts, each of which shall be deemed an original, but all of which together will constitute one and the same instrument.
(g) Advice of Counsel . EACH PARTY ACKNOWLEDGES THAT, IN EXECUTING THIS AGREEMENT, SUCH PARTY HAS HAD THE OPPORTUNITY TO SEEK THE ADVICE OF INDEPENDENT LEGAL COUNSEL, AND HAS READ AND UNDERSTOOD ALL OF THE TERMS AND PROVISIONS OF THIS AGREEMENT. THIS AGREEMENT SHALL NOT BE CONSTRUED AGAINST ANY PARTY BY REASON OF THE DRAFTING OR PREPARATION HEREOF.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first written above.
CONSULTANT | COMPANY: | ||||
JOSEPH CHENG | APPSOFT TECHNOLOGIES, INC. | ||||
By: | /s/ Joseph Cheng | By: | /s/ Brian Kupchik | ||
Name: | Joseph Cheng | Name: | Brian Kupchik | ||
Title: | CEO | ||||
Address:
email: |
11 Maxine Ave, Plainview, NY ycheng@optonline.net |
Address:
email: |
1225 Franklin Avenue, Suite 325 Garden City, NY 11530 bkupchik@appsofttechnologies.com |
EXHIBIT A
DESCRIPTION OF CONSULTING SERVICES
Description of Services: Manage the various teams that are tasked with working on app development projects
Schedule/Deadline: 2 years
EXHIBIT B
COMPENSATION
Stock Compensation
The Company will issue to Consultant 50,000 shares of common stock upon signing of this Agreement.
For services to be rendered by Consultant under this Agreement, the Company shall issue to the Consultant 10,000 shares of common stock in each of June, July, August, September and October 2016. Issued monthly on or about the first (1 st ) of each month. Company’s maximum liability for all services performed during the term of this Agreement shall not exceed 100,000 Shares
Expenses
Consultant is authorized to incur the following expenses: Software Subscription or licenses, App or in app purchases, conventions/ trade shows, travel. Cell phone will be provided.
Royalties
(a) Consultant will be granted a commission of 10% on Net Profit (as defined in subsection ( ), below) from CryptoGene video games, Comics (Digital or Print), and Graphic Novels (Digital or Print) products and properties in the amounts provided on Exhibit D-1.
(b) Consultant will be granted a commission of 25% on Net Profit from “WTFIT and PlanIT Pro” (official names TBD) in the amounts provided on Exhibit D-2 during development and for the span of two (2) years after “release” .
(c) Consultant will be granted a commission of 10% on Net Profit from all game related properties during development in the amounts provided on Exhibit D-3.
(d) For purposes of this Agreement, the term “Net Profits” means net profits generated by AppSoft from sales of the referenced item calc ulated, for all purposes, in accordance with generally accepted accounting principles .
(e) The royalties provided for in this Agreement shall be payable commencing as of the “release” date. The “release” date shall be determined by an official publically announced release build and date in which the product is available to the general consumer market. By way of clarification, “release” will not be determined by any testing phases such as Alpha or Beta builds, whether private or public and includes the development phase, as contemplated by the royalty payable in the first row of the table appearing in Exhibit D.
(f) All payments to Mr. Cheng under this Agreement shall be made within ninety (90) days after the conclusion of each calendar quarter.
For purposes of this Agreement, the term “Net Profits” means net profits generated by AppSoft from sales of the referenced item calc ulated, for all purposes, in accordance with generally accepted accounting principles .
EXHIBIT C
CONFIDENTIAL INFORMATION AND
INVENTION ASSIGNMENT AGREEMENT
Intentionally omitted.
EXHIBIT D
ROYALTIES SCALE
Exhibit D-1 | Exhibit D-2 | Exhibit D-3 | ||||
Development/Pre-Release | 10% | 25% | 10% | |||
Year 1 |
10% | 25% | 10% | |||
Year 2 | 8% | 25% | 7% | |||
Year 3 | 7% | 15% | 6% | |||
Year 4 | 6% | 10% | 5% | |||
Year 5+ | 5% | 5% | 3% |