Exhibit 10.3
CONSULTING AGREEMENT
This Consulting Agreement ("Agreement") is entered into on the date
written below by and between NanoSensors, Inc., (the "Company") having a place
of business at 0000 Xxxxx Xxxxx, Xxxxx Xxxxx, Xxxxxxxxxx 00000 and Axiom
Corporation ("Consultant") having a place of business at 0000 Xxxxx Xxxx, Xxxxx
Xxxxx, Xxxxxxxx 00000.
RECITALS
A. The Company is in the business of the development of explosive,
chemical and biological sensors.
B. Consultant has certain skills, experience and abilities with respect to
the Company's business.
C. The Company desires to retain Consultant as an independent contractor
to perform consulting services (the "Services") for the Company and Consultant
is willing to perform such services, on the basis set forth more fully below.
AGREEMENT
NOW THEREFORE, in consideration of the mutual promises contained herein,
the Company and Consultant agree as follows:
1. Services. Consultant and Xx. Xxxxxxx Xxxxxxxxx agrees to perform the
Services on sensor technologies and related technologies to detect explosives,
chemicals and biologicals. Consultant and Xx. Xxxxxxx Xxxxxxxxx agrees that the
terms of this Agreement.
2. Payment for Services. The Company shall pay Consultant a consulting fee
of $15,000 per month starting on September 1, 2003 together with reimbursement
for Consultant's direct costs such a travel expenses which have been
pre-approved by the Company. The consulting fee may be modified by mutual
agreement by the Company and Consultant if less than full time of Xx. Xxxxxxxxx
is available for consulting.
3. Relationship of Parties. Consultant shall perform the Service under the
general direction of the Company and agrees to devote his or her best efforts to
the Service and to the reasonable satisfaction of the Company. Notwithstanding,
Consultant shall determine, in Consultant's sole discretion, the manner and
means by which the Services are accomplished, subject to the express condition
that Consultant shall at all times comply with applicable law. Consultant is an
independent contractor and Consultant is not an agent or employee of the
Company, and has no authority whatsoever to bind the Company by contract or
otherwise.
4. Time Commitment Consultant shall commit the amount of Xx. Xxxxxxx
Xxxxxxxxx'x time to the Services as acceptable to the Company.
5. Taxes and Benefits. Consultant acknowledges and agrees that it shall be
the obligation of Consultant to report as income all compensation received by
Consultant pursuant to this Agreement and Consultant agrees to indemnify the
Company and hold it harmless to the extent of any obligation imposed on the
Company to pay any taxes or insurance, including without limitation, withholding
taxes, social security, unemployment, or disability insurance, including
interest and penalties thereon, in connection with any payments made to
Consultant by the Company pursuant to this Agreement.
6. Inventions. All inventions, discoveries, concepts and ideas whether
patentable or not, including but not limited to hardware, software, processes,
methods, techniques as well as improvements thereto conceived (collectively
referred to as "Developments"), made, conceived or developed by Consultant and
its agents, alone or with others, which result from or relate to the Company's
business shall be the properties of the Company.
7. Confidentiality. Consultant and its agents agree to hold the Company's
Confidential Information in strict confidence and not to disclose such
Confidential Information to any third parties. Consultant and its agents further
agree to deliver promptly all Confidential Information in Consultant's or its
agents possession to the Company at any time upon the Company's request. For
purposes hereof, "Confidential Information" shall include all confidential and
proprietary information disclosed by the Company including but not limited to
technical and business information relating to the Company's current and
proposed products, research and development, production, manufacturing and
engineering processes, costs, profit or margin information, finances, customers,
suppliers, marketing and production, personnel and future business plans.
"Confidential Information" also includes proprietary or confidential information
of any third party who may disclose such information to the Company or
Consultant and its agents in the course of the Company's business. The above
obligations shall not apply to Confidential Information which is already known
to the Consultant or its agents at the time it is disclosed, or which before
being divulged either (a) has become publicly known through no wrongful act of
the Consultant or its agents; (b) has been rightfully received from a third
party without restriction on disclosure and without breach of this Agreement or
other Agreements entered into by the Company; (c) has been independently
developed by the Consultant or its agents; (d) has been approved for release by
written authorization of the Company; (e) has been disclosed pursuant to a
requirement of a governmental agency or of law.
8. Termination. This Agreement shall commence in September of 2003 and
shall continue for two (2) years until terminated as follows:
(a) Either party may terminate the Agreement in the event of a
breach by the other party of any of its obligations contained herein if such
breach continues uncured for a period of ten (10) days after written notice of
such breach to the other party;
(b) Either party may terminate this Agreement upon written notice to
the other party if either party is adjudicated bankrupt, files a voluntary
petition of bankruptcy, makes a general assignment for the benefit of creditors,
is unable to meet its obligations in the normal course of business as they fall
due or if a receiver is appointed on account of insolvency;
(c) Either party may terminate this Agreement for its convenience
upon ninety (90) days written notice to the other if there is no outstanding
Project Assignment.
Upon the termination of this Agreement for any reason, each
party shall be released from all obligations and liabilities to the other
occurring or arising after the date of such termination, except that any
termination shall not relieve Consultant or the Company of their obligations
under Paragraph 5 ("Taxes and Benefits"), Paragraph 6 ("Inventions"), Paragraph
7 ("Confidentiality") and Paragraph 9 ("General"), nor shall any such
termination relieve Consultant or the Company from any liability arising from
any breach of this Agreement.
9. General.
(a) Pre-Existing Obligations. Consultant represents and warrants
that Consultant is not under any pre-existing obligation or obligations
inconsistent with the provisions of this Agreement.
(b) Assignment. The rights and liabilities of the parties hereto
shall bind and inure to the benefit of their respective successors, executors
and administrators, as the case may be, provided that, as the Company has
contracted for Consultant's services, Consultant may not assign or delegate its
obligations under this Agreement either in whole or in part without the prior
written consent of the Company.
(c) Equitable Relief. Because the Services are personal and unique
and because Consultant shall have access to and become acquainted with the
Confidential Information of the Company, Consultant agrees that the Company
shall have the right to enforce this Agreement and any of its provisions by
injunction, specific performance or any other equitable relief without prejudice
to any other rights and remedies that the Company may have for the breach of
this Agreement.
(d) Attorney's Fees. If any action at law or in equity is necessary
to enforce the terms of this Agreement, the prevailing party shall be entitled
to reasonable attorney's fees, costs and expenses in addition to any other
relief to which such prevailing party may be entitled.
(e) Governing Law; Severability. This Agreement shall be governed by
and construed in accordance with the laws of the State of California. If any
provision of this Agreement is for any reason found by a court of competent
jurisdiction to be unenforceable, the remainder of this Agreement shall continue
in full force and effect.
(f) Counterpart. This Agreement may be executed in counterparts,
each of which shall constitute an original and all of which shall be one and the
same instrument.
(g) Complete Understanding Modification. This Agreement constitutes
the full and complete understanding and Agreement of the parties hereto and
supersedes all prior understandings and agreements. Any waiver, modification or
amendment of any provision of this Agreement shall be effective only in writing
and signed by the parties thereto.
(h) Waiver. The failure of either party to insist upon strict
compliance with any of the terms, covenants or conditions of this Agreement by
the other party shall not be deemed a waiver of that term, covenant or
condition, nor shall any waiver or relinquishment of any right or power at any
one time be deemed a waiver or relinquishment of that right or power for all or
any other time.
(i) Notices. Any notices required or permitted hereunder shall be
given to the appropriate party at the address specified below or at such other
address as the party shall specify in writing and shall be by personal delivery,
facsimile transmission or certified or registered mail. Such notice shall be
deemed given upon personal delivery to the appropriate address or upon receipt
of electronic transmission or, if sent by certified or registered mail, three
days after the date of the mailing.
IN WITNESS WHEREOF, the parties hereto have signed this Agreement as of
the date written below.
COMPANY: CONSULTANT:
NANOSENSORS, INC. AXIOM CORPORATION
/s/ Xxx Xxxx /s/ Xxxx Xxxxxxxxx
--------------------------------- --------------------------------
Xxx Xxxx, CEO & President Xxxx Xxxxxxxxx, President
Date: 12/9/03 Date: 12/9/03
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Address: Address:
0000 Xxxxx Xxxxx 0000 Xxxxx Xxxx
Xxxxx Xxxxx, Xxxxx. 00000 Xxxxx Xxxxx, Xxxx. 00000
