Exhibit
10.2
CONSULTING,
CONFIDENTIALITY AND PROPRIETARY RIGHTS AGREEMENT
This
Consulting, Confidentiality and Proprietary Rights Agreement ("Agreement") is
entered into as of the 1stth day of December, 2007(the “Effective
Date”) by and between MySkin, Inc., a California corporation (the “Company”),
and Xxxxxxxxxx Xxxxxxxxxxxx (“Consultant”).
5. Taxes. As
an independent contractor, Consultant acknowledges and agrees that it is solely
responsible for the payment of any taxes and/or assessments imposed on account
of the payment of compensation to, or the performance of services by Consultant
pursuant this Agreement, including, without limitation, any unemployment
insurance tax, federal and state income taxes, federal Social Security (FICA)
payments, and state disability insurance taxes. The Company shall not make any
withholdings or payments of said taxes or assessments with respect to amounts
paid to Consultant hereunder; provided, however, that if required by law or any
governmental agency, the Company shall withhold such taxes or assessments from
amounts due Consultant, and any such withholding shall be for Consultant's
account and shall not be reimbursed by the Company to Consultant. Consultant
expressly agrees to make all payments of such taxes, as and when the same may
become due and payable with respect to the compensation earned under this
Agreement.
6. Confidentiality. Consultant
agrees that Consultant will not, except when required by applicable law or order
of a court, during the term of this Agreement or thereafter, disclose directly
or indirectly to any person or entity, or copy, reproduce or use, any Trade
Secrets (as defined below) or Confidential Information (as defined below) or
other information treated as confidential by the Company known, learned or
acquired by the Consultant during the period of the Consultant's engagement by
the Company. For purposes of this Agreement, "Confidential
Information" shall mean any and all Trade Secrets, knowledge, data or know-how
of the Company, any of its affiliates or of third parties in the possession of
the Company or any of its affiliates, and any nonpublic technical, training,
financial and/or business information treated as confidential by the Company or
any of its affiliates, whether or not such information, knowledge, Trade Secret
or data was conceived, originated, discovered or developed by Consultant
hereunder. For purposes of this Agreement, "Trade Secrets" shall
include, without limitation, any formula, concept, pattern, processes, designs,
device, software, systems, list of customers, training manuals, marketing or
sales or service plans, business plans, marketing plans, financial information,
or compilation of information which is used in the Company's business or in the
business of any of its affiliates. Any information of the Company or
any of its affiliates which is not readily available to the public shall be
considered to be a Trade Secret unless the Company advises Consultant in writing
otherwise. Consultant acknowledges that all of the Confidential Information is
proprietary to the Company and is a special, valuable and unique asset of the
business of the Company, and that Consultant's past, present and future
engagement by the Company has created, creates and will continue to create a
relationship of confidence and trust between the Consultant and the Company with
respect to the Confidential Information. Furthermore, Consultant
shall immediately notify the Company of any information which comes to its
attention which might indicate that there has been a loss of confidentiality
with respect to the Confidential Information. In such event, Consultant shall
take all reasonable steps within its power to limit the scope of such
loss.
7. Return
of the Company’s Proprietary Materials. Consultant agrees to deliver
promptly to the Company on termination of this Agreement for whatever reason, or
at any time the Company may so request, all documents, records,
artwork, designs, data, drawings, flowcharts, listings, models, sketches,
apparatus, notebooks, disks, notes, copies and similar repositories of
Confidential Information and any other documents of a confidential nature
belonging to the Company, including all copies, summaries, records,
descriptions, modifications, drawings or adaptations of such materials which
Consultant may then possess or have under its control. Concurrently
with the return of such proprietary materials to the Company, Consultant agrees
to deliver to the Company such further agreements and assurances to ensure the
confidentiality of proprietary materials. Consultant further agrees
that upon termination of this Agreement, Consultant's, employees, consultants,
agents or independent contractors shall not retain any document, data or other
material of any description containing any Confidential Information or
proprietary materials of the Company.
8. Assignment
of Proprietary Rights. Other than the Proprietary Rights listed on
the Schedule attached hereto, if any, Consultant hereby assigns and transfers to
the Company all right, title and interest that Consultant may have, if any, in
and to all Proprietary Rights (whether or not patentable or copyrightable) made,
conceived, developed, written or first reduced to practice by Consultant,
whether solely or jointly with others, during the period of Consultant's
engagement by the Company which relate in any manner to the actual or
anticipated business or research and development of the Company, or result from
or are suggested by any task assigned to Consultant or by any of the work
Consultant has performed or may perform for the Company.
Consultant
acknowledges and agrees that the Company shall have all right, title and
interest in, among other items, all research information and all documentation
or manuals related thereto that Consultant develops or prepares for the Company
during the period of Consultant's engagement by the Company and that such work
by Consultant shall be work made for hire and that the Company shall be the sole
author thereof for all purposes under applicable copyright and other
intellectual property laws. Other than the Proprietary Rights listed on the
Schedule attached hereto, Consultant represents and covenants to the Company
that there are no Proprietary Rights relating to the Company's business which
were made by Consultant prior to Consultant's engagement by the Company.
Consultant agrees promptly to disclose in writing to the Company all Proprietary
Rights in order to permit the Company to claim rights to which it may be
entitled under this Agreement. With respect to all Proprietary Rights
which are assigned to the Company pursuant to this Section 8, Consultant will
assist the Company in any reasonable manner to obtain for the Company's benefit
patents and copyrights thereon in any and all jurisdictions as may be designated
by the Company, and Consultant will execute, when requested, patent and
copyright applications and assignments thereof to the Company, or other persons
designated by the Company, and any other lawful documents deemed necessary by
the Company to carry out the purposes of this Agreement. Consultant will further
assist the Company in every way to enforce any patents, copyrights and other
Proprietary Rights of the Company.
12.
Non-Solicit. Consultant will not, during the term this Agreement and for one
year thereafter, directly or indirectly (whether as an owner, partner,
shareholder, agent, officer, director, employee, independent contractor,
consultant, or otherwise) with or through any individual or entity: (i) employ,
engage or solicit for employment any individual who is, or was at any time
during the twelve-month period immediately prior to the termination of this
Agreement for any reason, an employee of the Company, or otherwise seek to
adversely influence or alter such individual's relationship with the Company; or
(ii) solicit or encourage any individual or entity that is, or was during the
twelve-month period immediately prior to the termination of this Agreement for
any reason, a customer or vendor of the Company to terminate or otherwise alter
his, her or its relationship with the Company or any of its
affiliates. Section 12 does not apply to individuals or entities know
to the Consultant previous to the Effective Date.
(i) If
to the Company:
0000 X.
Xxxxxx Xxxx. Xxxxx X
Phone:
(000) 000-0000
Attn:
President
(ii) If
to the Consultant:
Xxxxxxxxxx Xxxxxxxxxxxx
1328 West Balboa
Apt “C”
Xxxxxxx Xxxxx, XX 00000
Attn: Xxxxxxxxxx
Xxxxxxxxxxxx
Any such
notice, demand or other communication shall be deemed to have been given on the
date personally delivered or as of the date mailed, as the case may
be.
Xxxxxxxxxx
Xxxxxxxxxxxx
By: /s/
XXXXXXXXXX XXXXXXXXXXXX
By: /s/
XXXXXXXXXX XXXXXXXXXXXX
Name:
Xxxxxxxxxx Xxxxxxxxxxxx
Title:
President
Schedule
Title and
Operational Responsibilities
§
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Consultant
will have the title of President.
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§
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Consultant
shall perform various advanced skin care services as
requested.
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Consultant
is expected to no less than 40 hours per month to activities related to the
Company.
Consultant
shall report regularly, and not less frequent than once per week, to the Company
her actions on behalf of the Company.
Consultant
shall be paid sixty-five dollars ($65.00) per hour starting February 1,
2008. Consultant shall invoice the Company and Company shall pay
Consultant within 15 days of receipt of the invoice. Such payment
shall be pro-rated should the Agreement terminated prior to the expiration of
the payment period in which the Agreement terminates.
Company
agrees to reimburse Consultant for other reasonably necessary travel expenses.
However, should such expenses exceed $1,500 in any given calendar month; such
expenses shall be pre-approved in advance by Company in order to qualify to
reimbursement. An email authorization by an officer of Company shall be deemed a
valid approval.