Consulting Agreement

THIS AGREEMENT is made and entered into effective as of the (the Effective Date), by and between The Next Step Inc., a company organized under the laws of the State of Minnesota, hereinafter referred to as the Consultant, and you, hereinafter referred to as the Customer.

THE PARTIES RECITE AND DECLARE THE FOLLOWING:

1. The Consultant is engaged in the business of providing business-to-business consulting services to members of the manufacturing community and industry; and
2. The Customer wishes to engage the Consultant to provide such services.

NOW, THEREFORE, in consideration of the here in above recitals, and the amounts to be paid, and of the mutual promises, representations, warranties, covenants and agreements hereinafter stated, and upon the terms and conditions hereinafter set forth, THE PARTIES AGREE AS FOLLOWS:

1. Engagement - Subject to the terms and conditions of this Agreement, the Customer agrees to engage the Consultant for the term of this Agreement, and the Consultant accepts such engagement. This Agreement shall not render the Consultant an employee, partner, agent of, or a joint venture with the Customer for any purpose.
2. Scope of Services - The Consultant shall provide the Customer with the services selected, but not limited to, Marketing, Sales, New Product Development and Operational Improvements. The Consultant shall diligently and conscientiously perform such services as are reasonably requested by the Customer, and shall devote its best efforts to providing such services for the advancement of the Customer’s business, it being understood that Consultant will not be required to expend its full-time efforts in the performance of services under this Agreement.
3. Term - The term of this Agreement shall commence on the Effective Date and shall continue until the services are completed or the Agreement is terminated, pursuant to Paragraph 5.
4. Compensation - In consideration for the Consultant’s services under this Agreement, the Customer shall pay the Consultant the rate of based on the selected product or solution services base on the rate of the service, which shall be invoiced monthly or at regular intervals as laid out in the project. The Customer acknowledges that the hourly rates are subject to change at the sole discretion of the Consultant, particularly if the original Scope of Services changes over time.
5. Termination - Subject to the continuing obligations of the parties under Paragraph 6, which survive termination. either party may terminate this Agreement at any time, with or without cause, at which time all time spent on the services shall be invoiced and immediately due and payable.
6. Restrictive Covenants

a. Mutual Confidentiality; Non-Disclosure - Neither party shall without the other party’s knowledge and consent, either during the term of this Agreement or subsequent to the termination of this Agreement, either directly or indirectly, use, divulge, disclose or communicate to any third person, firm, partnership, limited liability company, corporation, association or other entity any Confidential Information, or trade secrets of the other party. Confidential Information means: (i) written, recorded, graphical or other information in tangible form, which is stamped “Proprietary,” “Confidential,” or with a similar legend denoting the proprietary interest of the Disclosing Party; (ii) oral information, to the extent it is identified as “Proprietary” or “Confidential” at the time of oral disclosure, that is reduced to writing within thirty (30) days of oral disclosure and such written or tangible form is stamped “Proprietary,” “Confidential,” or with a similar legend; and (iii) models and devices which have been identified in writing at the time of disclosure as being proprietary to the Disclosing Party.

The obligations of the Receiving Party as stated in this section, shall not apply to Confidential Information: (i) generally known or available to the public, or which may later become generally known or available to the public, except where such disclosure is the result of the unauthorized disclosure by the Receiving Party; or (ii) if required to be disclosed by the Receiving Party by law, regulation, court order or other legal process, provided, that the Receiving Party will provide notice prior to any such disclosure, to the extent reasonably possible under the circumstances, to allow the Disclosing Party an opportunity to seek a protective order.

All Confidential Information shall remain the property of the Disclosing Party. Nothing contained in this Agreement or any disclosure pursuant to this Agreement shall be construed as granting any license or right under any intellectual property right, whether present or future. All Confidential Information disclosed hereunder is provided “AS IS” and without warranty of any kind.

b. Non-Solicitation - During the term of this Agreement and for a period of two (2) years after termination, for whatever reason, of this Agreement, the Customer shall not influence, attempt to influence, or contribute in any fashion to the solicitation or diversion of any of the Consultant’s employees or contractors to the Customer, or to any other individual, company, or entity. The Customer stipulates that this restriction is reasonable given the circumstances.

c. Remedies-Employee acknowledges and agrees that the breach of Paragraph 6A by the Receiving Party, or the breach of Paragraph 6B by the Customer would cause irreparable harm and that such harm may not be compensable entirely with monetary damages. In the event of an actual or threatened breach, the Disclosing Party and/or the Consultant (hereinafter the Harmed Party) may, but shall not be required to, seek injunctive relief, restraining the other Receiving Party and/or the Customer (as the case may be) from such actual or threatened activity, and/or any other remedy allowed at law, in equity, or under this Agreement. Any injunctive relief sought shall be in addition to and not in limitation of any monetary relief or other remedies or rights to which the Harmed Party is or may be entitled at law, in equity, or under this Agreement. In connection with any suit at law or in equity by the Harmed Party under this Agreement, the Harmed Party shall be entitled to an accounting, and to the repayment of all profits, compensation, commissions, fees, or other remuneration which the Receiving Party, Customer, or any other third party has either directly or indirectly realized on its behalf or on behalf of another and/or may realize, as a result of, growing out of, or in connection with the violation which is the subject of the suit. In addition to the foregoing, the Harmed Party shall be entitled to collect from the Receiving Party and/or Customer any reasonable attorney’s fees and costs incurred in bringing any action against the Receiving Party and/or Customer or otherwise to enforce the terms of this Agreement, as well as any attorney’s fees and costs for the collection of any judgments in favor of the Harmed Party arising out of this Agreement.

d. Nonwaiver. - The decision of the Harmed Party to refrain from enforcing a breach of any part of this Agreement (or the settlement by the Harmed Party of any claims for breach) will not prevent the Harmed Party from enforcing the Agreement as to any other breach of this Agreement that the Harmed Party discovers and shall not operate as a waiver against any future enforcement of any part of this Agreement, any other agreement with the Receiving Party and/or the Customer, or any other agreement between the parties with any other person or entity.

7. General Provisions

a. Entire Agreement - This Agreement sets forth the entire agreement and understanding between the parties and merges and supersedes all prior discussions, agreements and undertakings of any nature between them. This Agreement shall not be changed, modified, or terminated, except by agreement in writing, signed by all the parties hereto.

b. No Conflicts-The Consultant represents and warrants to the Customer that neither the entering into of this Agreement nor the performance of any of the Consultant’s obligations hereunder will conflict with or constitutes a breach of any obligation to which the Consultant is bound.

c. Governing Law - This Agreement shall be governed and interpreted according to the laws of the State of Minnesota, and any legal action to settle any claim or dispute shall be heard by the state or federal courts located within the State of Minnesota.

d. Severability - Whenever possible, each provision of this Agreement shall be interpreted in such manner as to be effective and valid under applicable law, but if any provision of this Agreement is held to be invalid, illegal or unenforceable under any applicable law or rule in the State of Minnesota, such provision shall be ineffective only to the extent of such invalidity, illegality, or unenforceability in such jurisdiction, without invalidating the remainder of this Agreement.

e. Binding Effect; Assignment- This Agreement shall be binding upon and be of benefit to the parties, their heirs, administrators, executors, personal representatives, successors and assigns, though the parties shall not assign this Agreement without the other party’s express consent.

f. Notices - All notices, requests, demands and other communications hereunder shall be in writing and shall be deemed to have been duly given (i) upon personal delivery; (ii) upon confirmation of fax delivery; (iii) upon return receipt or alternative confirmation of delivery by certified, registered, or overnight mail.

g. Counterparts - The parties agree that a signature transmitted by facsimile or in electronic (i.e., pdf or tif) format, shall be binding and that this Agreement may be signed in any number of counterparts, each of which shall be deemed an original.