CONSULTING SERVICES AGREEMENT
Exhibit
10.2
This
Agreement is entered into effective the 1st day of June, 2008, by and between
Color Accents, Inc., a Nevada
corporation ("Company") and Essential Business Solutions, LLC, North
Carolina limited liability company ("Consultant"). Company and Consultant desire
to enter into this Agreement for the purpose of setting forth the general terms
under which Consultant will provide consulting services as ari independent
contractor to Company.
Therefore,
in consideration of the Services to be provided to Company by Consultant, the
payments to be made to Consultant by Company, and the other promises set forth
below, the parties agree as follows:
1. Relationship of Parties.
Consultant shall perform under this Agreement as an independent
contractor, and not as an employee, agent, representative, or partner of
Company. None of the employees or agents of Consultant shall be considered
employees of Company, nor shall any employees or agents of Consultant be
entitled to participate in any plans, arrangements or distributions of Company
pertaining to any benefits provided to regular employees of Company. Consultant
shall be responsible for providing his own general liability insurance coverage
to protect himself from any claims made against him, including those that may
arise from the Services rendered pursuant to this Agreement. Consultant shall
have the right to perform work for others as long as Consultant fulfills his
obligations hereunder. Company shall have the right to cause work of the same
nature as performed by Consultant to be performed by Company's own personnel or
other consultants.
2. Description of Services.
Consultant agrees to provide consulting services to Company as described
in Exhibit A
(the "Services"). If there is any conflict between the provisions of this
Agreement and Exhibit
A with respect to the Services to be performed by Consultant, the
provisions of Exhibit
A shall control. Consultant represents to Company that Consultant has the
knowledge and skills required to undertake all Services specified in Exhibit A. Consultant
agrees that the Services will be performed in accordance with the commercial
business standards in Consultant's business for such Services, and that the
software, reports, documentation or other results of such Services shall be fit
for their respective intended purpose.
3. Term. The term of
this Agreement shall be for a period of one (1) year, beginning on June 1, 2008;
provided, however, that either party has the absolute right to terminate this
Agreement at any time for its convenience, but each party agrees to give ten
(10) business days written notice to the other party of its election to
terminate. Any extension of this Agreement shall be made by a mutually agreed to
written instrument. Notwithstanding the foregoing, either party may terminate
this Agreement at any time based on the other party's material breach of this
Agreement, if such breach is not cured within ten (10)' calendar days of a
written notice of the breach.
4. Compensation.
Consultant shall be compensated for Service performed under this
Agreement in accordance with the rates specified on Exhibit B ("Fee
Schedule"). Except as otherwise specified in Exhibit B, Consultant
shall be responsible for all expenses incurred in
performing
the Services.
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5. Billing and Payment.
Consultant will submit invoice to Company on the last day of each month.
To the extent expenses may be billed, the invoice shall also include an
itemization of all expenses for which reimbursement is to be made. Company may
withhold from any payment, including the final payment: (i) any amount
incorrectly invoiced; or (ii) any amount being disputed in good faith. Payment
on undisputed invoices, or undisputed portions of invoices, shall be made upon
receipt after submission of the invoice to Company.
6. Equipment, Supplies and
Facilities. Company shall be solely responsible for providing all
equipment, software, and supplies required to undertake the Services, unless
otherwise specified in Exhibit A. To the
extent that Consultant is required to utilize any software owned by Company in
performing the Services, Company shall provide Consultant with the software and
a license to use the software, which software shall be returned to Company upon
completion or termination of this Agreement. Company shall be responsible for
providing offices or such other facilities as are required for performance of
the Services.
7. Taxes. Consultant
will be respOnsible for the payment of taxes on his entire compensation under
this Agreement, including income taxes, employment and unemployment, Medicare
and social security taxes and other or similar taxes required by application of
law. Company shall not withhold any taxes in connection with the compensation
paid to. Consultant hereunder. Such payments shall be the sole responsibility of
Consultant, and Consultant agrees to file all required forms and make all
required payments appropriate to his tax status when and as they become due.
Consultant agrees to indemnify Company, and each of its officers, directors and
employees from and against all payments, losses, costs, liability, expenses,
damages, fines, penalties or judgments (including without limitation actual
attorneys fees and expenses) as a result of a failure by Consultant: (a) to pay
all the taxes due in connection with the compensation paid to Consultant under
this Agreement, (b) to respond to any administrative inquiry concerning
Consultant's payment of such taxes, or (c) to defend against any administrative
or judicial proceeding with respect to Consultant's payment of such
taxes.
8. Confidentiality.
Consultant shall hold in confidence and shall not, except in the course
of performing Consultant's obligations under this Agreement or pursuant to
written authorization from Company, at any time during or for five (5) years
after termination of Consultant's relationship with Company (a) directly or
indirectly reveal, report, publish, disclose or transfer Confidential
Information or any part thereof to any person or entity; (b) use any
Confidential Information or any part thereof for any purpose other than for the
benefit of Company; or (c) assist any person or entity other than Company to
secure any benefit from Confidential Information or any part
thereof.
For the
purposes of this Agreement, "Confidential Information" shall mean each of the
following: (a) any information or material designated as confidential either
orally or in writing by Company; and (b) any information not generally known by
non-Company personnel (other than persons subject to confidentiality); and (c)
any information which Consultant should know Company would not care to have
revealed to others or used in competition with Company (including without
limitation any business plan and information concerning
relationships
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between
Company and various medial centers); and (d) any information which Consultant
made or makes, conceived or conceives, developed or develops or obtained or
obtains through or has access to as a result of Consultant's providing the
Services to Company hereunder (including information received, originated,
discovered or developed in whole or in part by Consultant), all of the above
including without limitation all software code in all stages of development and
whether in source, object or executable form. Confidential Information also
includes any information which Company obtains from another party and which
Company treats as proprietary or designates as Confidential Information, whether
or not owned or developed by Company, including without limitation information
of or concerning Company's licensees. The failure of Company to xxxx any of the
above described information as proprietary, confidential, or secret shall not
affect its status as part of the Confidential Information hereunder. It is
understood, however, that no information shall be considered as Confidential
Information, regardless of its having been marked as such, if: (w) it is or
becomes publicly available through no fault of Consultant; or (x) it is
disclosed to Consultant by a third party entitled to disclose it; or (y) it is
known to Consultant prior to its disclosure to Consultant; or (z) it is
developed by Consultant, as can be shown by tangible evidence, without any
reference to the Confidential Information. Information publicly known that is
generally employed by the software industry at or after the time Consultant
first learns of such information, or generic information or knowledge which
Consultant would have learned in the course of similar employment or work
elsewhere in the software industry shall not be deemed part of the Confidential
Information.
9. Ownership
of Materials. All copyrights and software patents with respect to the
software developed for the Company as part of the Services, and arising out of
and related to the Services (collectively, the "Work Product") shall belong
exclusively to Company or it's client, and shall, to the extent possible, be
considered a "work made for hire" for Company; to the extent such work is
determined not to constitute "works made for hire" as a matter of law,
Consultant hereby irrevocably assigns and transfers to Company, as of the time
of creation of the Work Product, any and all right, title, or interest it may
have in such Work Product. Upon request of Company and at Company's expense,
Consultant shall take such further actions, including execution and delivery of
instruments of conveyance necessary to obtain legal protection in the United
States and foreign countries for such Work Product and for the purpose of
vesting title thereto in Company, or its nominee, as may be appropriate to give
full and proper effect to such assignment and to vest in Company complete title
and ownership to such Work Product.
Notwithstanding
anything to the contrary herein, Consultant may retain ownership of any
algorithms, routines, and utilities that are not specific to the general
functionality of the Work Product if: (a) Consultant identifies such algorithms,
routines, and utilities to Company in writing in advance of their being
provided; and (b) Consultant provides evidence of prior use of the software code
or other intellectual property ("Intellectual Property") in previous work
undertaken by Consultant for a party other than Company; and (c) Consultant
provides the Intellectual Property separately such that it can be clearly
distinguished from other information, libraries, software code or other
intellectual property provided by Consultant ("Consultant's Intellectual
Property"). Consultant grants to Company an irrevocable and transferable right
to use any such Consultant's Intellectual Property in any manner and for any
purpose, and further grants to Company an irrevocable right to sell, assign,
transfer, modify, translate, license, grant and
convey the Work Product which uses any such Consultant's Intellectual
Property.
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10. Warranty by Consultant.
Consultant represents and warrants that his performance of all terms
under this Agreement will not result in a breach of any duty owed by Consultant
to another, under contract or otherwise, or violate any confidence of another.
Consultant agrees not to disclose to Company or induce Company to use any
confidential or proprietary information belonging to any of Consultant's
previous or present employers or others. Consultant warrants that Consultant has
executed no prior non-competition, non-disclosure or confidentiality agreements
that would in any way interfere with his work for Company. Consultant warrants
that Consultant will disclose the participation of any other person in any of
Consultant's work for Company. Consultant warrants that all materials delivered
to Company under this Agreement shall be original work and that all such
materials will not violate any copyright, mask works, trade secret or other
proprietary right of any third party.
11. Third-Party Obligations.
Consultant acknowledges that Company, from time to time, may have
agreements with other persons or entities that impose obligations or
restrictions on Company regarding the Services to be performed by Consultant
during the course of this Agreement, or regarding the confidential nature of the
Services or Confidential Information of the third party disclosed during or used
in performing the Services. Consultant agrees to use its best efforts to take
all action necessary to discharge the obligations of Company thereunder that are
disclosed to Consultant.
12. Termination. Upon
notice of termination of this Agreement being given, Consultant shall inform
Company of the extent to which performance has been completed through the
anticipated time for termination, and shall immediately take steps to wind down
work in progress in an orderly fashion during the notice period. At the end of
the notice period Consultant shall deliver to Company all Work Product that then
exists, in whatever media it exists and in any manner reasonably requested by
Company; no copies of the Work Product, or parts thereof, shall be retained by
Consultant except as permitted under Paragraph 10. Consultant shall remove all
software created as part of the Services from Consultant's hard drives and from
any backups. Upon termination of this Agreement, or upon the request of Company
at any time during this Agreement, Consultant shall promptly return to Company
any and all property of Company, including without limitation any supplies,
materials, software, or equipment that have been provided to Consultant by or
through Company for Consultant's use in performance of the
Services.
Consultant
warrants and acknowledges that it does not now have, nor shall have after
termination or expiration, any continuing interest or rights to the goodwill,
assets or profits or royalties of Company, and that Company's sole
responsibilities and liabilities are as set forth herein. Company's right to
terminate is absolute, and Consultant acknowledges he has considered the term of
this Agreement, and the termination provisions in making expenditures of money
and time in preparing for the performance of this Agreement, and has further
considered the possible loss or damage on account of the loss of prospective
profits or anticipated sales or on account of expenditures, investments, leases,
or other commitments in connection with the goodwill or business of Consultant
resulting from the ending of this Agreement. Company shall have no liability to
Consultant as a result of termination or expiration of this Agreement in
accordance
with its terms, including without limitation claims relating to loss of profits
or goodwill, except the obligation to pay for all Services performed through the
date of termination, only at the rate specified in Exhibit B and in accordance
with the terms of Paragraph 5.
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Any
provision of this Agreement which by its terms imposes continuing obligations on
the parties, including but not limited to Paragraphs 7, 8, 9, 10, 12, and 17,
shall survive the expiration or termination of this Agreement.
13. Waiver. No waiver of
any right or remedy with respect to any occurrence or event shall be deemed a
waiver of such right or remedy with respect to such occurrence or event in. the
future. No waiver of any of Consultant's obligations under this Agreement shall
be effective unless in writing and signed by Company.
14. Reformation/Severability of
Agreement. If any provision of this Agreement shall for any reason be
held to be invalid or unenforceable, such decision shall not affect, impair or
invalidate the remainder of this Agreement but shall be confined in its
operation to the provision of this Agreement directly involved in the
controversy in which the decision was rendered. The invalid or unenforceable
provision cannot be reformed, the other provisions or applications of this
Agreement shall be given full effect, and the invalid or unenforceable provision
shall be deemed struck.
15. Assignment. This
Agreement shall inure to the benefit of and be binding upon Company, its
successors and assigns, including without limitation any entity which may
acquire all or substantially all of Company's assets and business or into which
Company may be consolidated or merged, and the Consultant his heirs, executors,
administrators and legal representatives and its successors and assigns.
Consultant may not assign or otherwise in any manner transfer any of his
obligations under this Agreement.
16. Dispute Resolution.
The parties agree that all claims or disputes arising between the parties
bound by this Agreement which relate to this Agreement or the breach thereof
shall be submitted to one arbitrator for binding arbitration in Wake County,
North Carolina, which arbitration shall be conducted by and in accordance with
the rules of the Private Adjudication Center (PAC), located at the North
Carolina Bar Center. Notwithstanding the foregoing, either party may bring an
injunction proceeding before a court of equity in the event that damages for a
breach are not likely to be an adequate remedy, such proceeding to be brought in
a judicial district that includes Wake County, North Carolina, and the parties
hereby consent to the jurisdiction of such court. The parties agree that this
Agreement shall be governed and construed by the laws of the state of North
Carolina, and that no conflict-of-laws provision shall be invoked to permit
application of the laws of any other state or jurisdiction. The award rendered
by the arbitrators shall be final, and judgment may be entered upon it in
accordance with applicable law in any court having jurisdiction thereof. Except
by written consent of the person or entity sought to be joined, no arbitration
arising out of or relating to this Agreement shall include, by consolidation,
joinder or in any other manner, any person or entity not a party to, or
otherwise bound by, the agreement under which such arbitration arises, unless it
is shown at the time the demand for arbitration is filed that (a) such person or
entity is substantially involved in a common question of fact or law; (b) the
presence of such person or entity is required if complete relief is
to be accorded in the arbitration; and (c) the interest or responsibility of
such person or entity in the matter is substantial. The provisions of this
Agreement to arbitrate and any other written agreement to arbitrate referred to
herein shall be specifically enforceable under the prevailing arbitration law of
North Carolina.
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17. Entire Agreement. The
Agreement embodies the entire agreement between Company and Consultant relating
to the subject matter hereof. The parties shall not be bound by or liable for
any statement, writing, representation, promise, inducement or understanding not
set forth above or in an Exhibit hereto. No changes, modifications or amendments
of any term shall be valid unless agreed upon by the parties in
writing.
| COMPANY | CONSULTANT |
| Color Accents, Inc | Essential Business Solutions, LLC |
| By: Xxxxx Xxxx | By: Xxxxxxx Xxxxx |
| Title: President | Title: President |
| Dated: 6/1/08 | Date: 6/1/08 |
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Exhibit
A
SERVICES
TO BE PROVIDED BY CONSULTANT
Pursuant
to the terms of the Consulting Agreement effective June 1, 2008 by and between
Color Accents, Inc. ("Company") and Essential Business Solutions ("Consultant"),
Consultant has agreed to undertake the consulting services (the "Services") as
set forth below:
Consultant
will design and develop Company's entire website, including but not limited to
will provide the following services for the website:
Site
design and development, disk space, bandwidth, 155 mbit backbone, pop mailboxes,
e-mail forwarding, e-mailing aliasing, auto responder, front page support,
unlimited FTP access, java chat, hotmetal/miva script, shopping cart, secure
transactions signio support, cybercash support and macromedia
flash.
The
contract will become effective when Company completes the public offering of its
shares of common stock, but not later than June 30, 2008.
| COMPANY | CONSULTANT |
| Color Accents, Inc | Essential Business Solutions, LLC |
| By: Xxxxx Xxxx | By: Xxxxxxx Xxxxx |
| Title: President | Title: President |
| Dated: 6/1/08 | Date: 6/1/08 |
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Exhibit
B
FEE
SCHEDULE FOR CONSULTANT
Compensation
to Consultant for the Services provided pursuant to the terms of the Consulting
Agreement (the "Agreement") effective June 1, 2008 by and between Color Accents,
Inc. ("Company") and Essential Business Solutions ("Consultant"), shall be paid
according to the following rates and terms:
Rate: $45
per hour, plus all out of pocket expenses for
· Invoices
are due and payable upon receipt.
The above
rates shall remain in effect for the duration of the Agreement to which this Fee
Schedule is attached as Exhibit B.
In
addition, Consultant may invoice for reasonable and actual out-of-pocket
expenses incurred by it in connection with performing the Services, as
follows:
· Disk
space, bandwidth, and other resources to maintain the web site
· Telephone calls (both land and cell phones) made for the
purposes of conducting project-related business.
· Business
travel, software licenses, conferences, specialized equipment, supplies and
other needed items for the Services.
| COMPANY | CONSULTANT |
| Color Accents, Inc | Essential Business Solutions, LLC |
| By: Xxxxx Xxxx | By: Xxxxxxx Xxxxx |
| Title: President | Title: President |
| Dated: 6/1/08 | Date: 6/1/08 |
