CONSULTING SERVICES AGREEMENT
EXHIBIT
10.33
THIS
CONSULTING SERVICES AGREEMENT (the "Agreement") is made and entered into by
and
between MEDSTRONG INTERNATIONAL CORPORATION, a Delaware USA corporation (the
"Company"), and XXXXXXXX MANAGEMENT CONSULTING LLC., a Florida limited liability
company (“Consultant"), effective this 16th
day of
January 2007.
RECITALS
WHEREAS,
the Company desires Consultant's services with respect to the organization,
business affairs and business development of the Company, and Consultant agrees
to provide such advice and services to the Company through a consulting
relationship with the Company.
NOW
THEREFORE, in consideration of the mutual obligations specified in this
Agreement, the parties agree to the following:
1. CONSULTING
SERVICES ENGAGEMENT. The Company hereby retains Consultant, and Consultant
hereby accepts such retention, to perform consulting services for the Company
as
set forth herein.
(a)
SCOPE.
Consultant shall provide consulting services ("Services") to the Company as
defined in Exhibit A attached hereto. Consultant shall begin providing Services
on January 24, 2007 (the "Start Date").
(b)
PERFORMANCE
AND TIME COMMITMENT. Consultant shall render the Services working at least
three
full (3) days a week at the Company's principal place of business, other Company
locations, or at other places upon mutual agreement of the parties, and as
available on other days remotely. Subject to this Agreement, Company
acknowledges that Consultant has other clients.
(c)
PROFESSIONAL
STANDARDS. The manner and means used by Consultant to perform the Services
desired by the Company are in the discretion and supervision of the Chief
Executive Officer of the Company. Consultant's Services, and the results
thereof, will be performed with and be the product of the highest degree of
professional skill and expertise.
(d)
INDEPENDENT
CONTRACTOR STATUS. It is understood and agreed that Consultant is an independent
contractor, is not an agent or employee of the Company, and is not authorized
to
act on behalf of the Company. Consultant agrees not to hold itself out as,
or
give any person any reason to believe that it is, an employee, agent, or partner
of the Company. Consultant’s employees will not be eligible for any employee
benefits, nor will the Company make deductions from any amounts payable to
Consultant for taxes or insurance. All payroll and employment taxes, insurance,
and benefits of Company’s employees shall be the sole responsibility of
Consultant. Consultant retains the right (as limited in Section 3) to provide
services for others during the term of this Agreement and is not required to
devote its services exclusively for the Company.
(e) DISCLAIMER.
Company has been notified and hereby acknowledges that while
Consultant’s principal (Mr. Xxxx Xxxxxxxx) is a member of the New York
and
Washington D.C. legal bars,
he is
not a member of the Florida legal bar. The parties agree that neither Consultant
nor Xx. Xxxxxxxx will not provide legal advice to Company and that any Services
done by Xx. Xxxxxxxx (to the extent such Services might be considered legal
advice) will be reviewed and approved by Company’s legal counsel (e.g., for all
corporate securities matter, the Company’s outside securities
counsel). Without
limiting the foregoing, Company is a public company and acknowledges that
Consultant (nor Xx. Xxxxxxxx) will have any oversight, decision-making or other
responsibilties with respect to the Company’s corporate and public and private
securities matters (including by way of example, transactions, disclosures,
and
other activities) and that all of the foregoing shall be Company's
responsibility together with its lead outside corporate securities counsel,
Xxxxxxx Xxxxx, Esq. and such other outside counsel that Company may retain
from
time to time. Company agrees to indemnify and hold harmless Consultant and
Xx.
Xxxxxxxx to the same extent as, and in the same manner that, it has granted
or
in the future grants indemnification to its officers and directors, whether
in
its by laws, articles, other written agreements and including such
indemnification rights officers and directors receive under applicable laws
and
regulations.
2. COMPENSATION.
(a) In
consideration of Consultant's provision of the Services on a full time basis,
the Company shall pay Consultant consulting fees in an amount equal to $12,400
per month. Consultant hereby agrees to defer receipt of such fees, and Company
agrees to accrue such fees, until such time that: (i) the Company receives
funding from any source and (ii)
the
senior executives of the Company (who are deferring their salaries) are paid
their accrued compensation. At such times that the foregoing conditions are
met,
Consultant shall be repaid its accrued compensation to the same extent that
such
accrued compensation is repaid to the Company’s senior executives.
(b)
The
Company shall reimburse Consultant for pre-approved expenses actually incurred
by Consultant in performing the Services, including but not limited to travel
and accommodation expenses, so long as such expenses are reasonable and
necessary as determined by the Company. Consultant shall maintain adequate
books
and records relating to any expenses to be reimbursed and shall submit requests
for reimbursement in a timely manner and form acceptable to the Company. The
Company shall not be responsible for reimbursement of expenses for which
Consultant fails to provide documentation deemed adequate by the
Company.
(c)
Consultant
will provide the Company a monthly statement indicating all fees and expenses
for the prior month. The statement will include the aggregate amount of deferred
fees that are accruing. Subject to Section 2(a), the Company will pay Consultant
the amounts indicated in the statement within ten (10) business
days.
3.
NO
CONFLICT OF INTEREST; NON-COMPETE.
(a)
During
the term of this Agreement, Consultant will not accept work, enter into a
contract, or accept an obligation from any third party, that is inconsistent
or
incompatible with Consultant's obligations, or the scope of Services rendered
for Company under this Agreement. Consultant warrants that there is no other
contract or duty on its part inconsistent with this Agreement. Consultant agrees
to indemnify the Company from any and all loss or liability incurred by reason
of the alleged breach by Consultant of any services agreement with any third
party.
(b)
While
providing Services to the Company , unless otherwise agreed to in writing by
the
Company, Consultant and its employees, officers and directors, shall not,
directly or indirectly, engage in any business directly competitive with the
Company in regards to the scope of the Company’s announced services and planned
services made known to Consultant. Directly or indirectly engaging in any
competitive business includes, but is not limited to, (i) engaging in a business
as owner (except as a minority shareholder in a publicly traded business),
partner, or agent, (ii) becoming an employee of any third party that is engaged
in such business, (iii) becoming interested directly or indirectly in any such
business; or (iv) facilitating any other party to do any of the
foregoing.
4. MAINTAINING
CONFIDENTIAL INFORMATION.
(a) COMPANY
INFORMATION. During the term of this Agreement and in the course of Consultant's
performance hereunder, Consultant may receive or otherwise be exposed to
confidential and proprietary information relating to the Company's technology,
including know-how, data, copyrights, inventions, trade secrets, developments,
plans business practices, and strategies. Such confidential and proprietary
information of the Company (collectively referred to as "Information") may
include but not be limited to: (i) confidential and proprietary information
supplied to Consultant with the legend "Company Confidential" or equivalent;
(ii) the Company's marketing and customer support strategies, financial
information (including revenue, costs, profits and pricing methods), internal
organization, employee information, and customer lists; (iii) the Company's
technology, including, inventions, development efforts, data, software, trade
secrets, processes, methods, product and know-how and show-how; (iv) all
derivatives, improvements, additions, modifications, and enhancements to any
of
the above, including any such information or material created or developed
by
Consultant under this Agreement; and (v) information of third parties as to
which the Company has an obligation of confidentiality.
Consultant
acknowledges the confidential and secret character of the Information and agrees
that the Information is the sole, exclusive and extremely valuable property
of
the Company. Accordingly, Consultant agrees not to reproduce any of the
Information without the applicable prior written consent of the Company, not
to
use the Information except in the performance of this Agreement, and not to
disclose all or any part of the Information in any form to any third party,
either during or after the term of this Agreement. Upon termination of this
Agreement for any reason, including expiration of term, Consultant agrees to
cease using and to return to the Company all whole and partial copies and
derivatives of the Information, whether in Consultant's possession or under
Consultant's direct or indirect control.
(b)
OTHER
COMPANY INFORMATION. Consultant agrees that during its engagement
with the Company, Consultant will not improperly use or disclose any proprietary
information or trade secrets of its former or concurrent customers, if any,
and
that he or she will not bring onto the premises of the Company any unpublished
documents or any property belonging to Consultant’s (including its employees,
officers and directors) former or concurrent clients unless consented to in
writing by said employers or companies.
(c)
THIRD
PARTY INFORMATION. Consultant recognizes that the Company has received and
in
the future will receive from third parties their confidential or proprietary
information subject to a duty on the Company's part to maintain the
confidentiality of such information and, in some cases, to use it only for
certain limited purposes. Consultant agrees that the Company and such third
parties, both during the term of this Agreement and thereafter, are owed a
duty
to hold all such confidential or proprietary information in the strictest
confidence and not to disclose it to any person, firm or corporation (except
in
a manner that is consistent with the Company's agreement with the third party)
or use it for the benefit of anyone other than the Company or such third party
(consistent with the Company's agreement with the third party).
(d)
AGREEMENT
OF EMPLOYEES OF CONSULTANT. Consultant agrees that all of its employees
providing Services on Consultant’s behalf to Company or having access to or
receiving the Company’s information shall, prior to providing such Services or
such access or receipt, execute employment agreements with Consultant binding
such employees automatically to assign ownership to the Consultant (or the
Company) of all Service Product (as defined below), protective of the Company’s
Information commensurate with this Section 4 and barring conflicts of interest
and covenants of non-competition with the Company at least as protective of
the
Company as imposed on the Consultant in Section 3.
5.
INVENTIONS.
(a)
DISCLOSURE
OF INVENTIONS. Consultant shall promptly and fully disclose
to the Company any and all ideas, improvements, inventions, know-how, techniques
and works of authorship learned, conceive or developed by Consultant pursuant
to
this Agreement (the "Service Product"). Consultant agrees to keep and maintain
adequate and current records (in the form of notes, sketches, drawings and
in
any other form that may be required by the Company) of all work performed
relating to the Services, including all proprietary information developed
relating thereto, and such records shall be available to and remain the sole
property of the Company at all times.
(b)
INVENTIONS
ASSIGNED TO THE COMPANY. Consultant agrees that any
and
all Service Product shall be the sole and exclusive property of the Company.
Consultant hereby assigns to the Company all of Consultant's right, title and
interest in and to any and all Service Product. Consultant explicitly
acknowledges and agrees that all works of authorship contained in the Service
Product are "works for hire" under the copyright laws of the United States,
and
that the Company shall own the copyright in all such works of
authorship.
Consultant
further agrees that the Company is and shall be vested with all rights, title
and interests, including patent, copyright, trade secret and trademark rights,
in all of Consultant's Service Product under this Agreement. Consultant agrees
during and after the term of this Agreement to provide such reasonable
cooperation requested by the Company to document and secure the foregoing rights
of ownership, including cooperation in the filing of patent applications and
assignments of ownerships with appropriate governmental agencies.
6. TERM
OF
AGREEMENT. This Agreement shall commence as of the date set forth
above, and thereafter may be terminated by either party upon thirty (30) days
notice. In the event of termination, Consultant shall cease work immediately
after giving or receiving such notice or termination, unless otherwise advised
by the Company to continue work during the notice period. Consultant shall
return to the Company all Information, Service Product, and other materials
belonging to the Company, and shall notify the Company of costs incurred up
to
the termination date. Sections 3(b), 4, 5 6, 11 and 13 of this Agreement shall
survive any termination of this Agreement.
7.
TERMINATION
BY THE COMPANY. Notwithstanding Section 6 above, the Company
may terminate this Agreement with or without cause, at any time upon thirty
(30)
days prior written notice to Consultant. The
Company also may terminate this Agreement or the Services immediately in the
event of a material breach by Consultant of this Agreement.
8.
COMPLIANCE
WITH APPLICABLE LAWS. Consultant warrants that all material supplied and work
performed under this Agreement complies with or will comply with all applicable
United States and foreign laws and regulations.
9. ASSIGNMENT;
BENEFIT. This Agreement is for the exclusive services of Consultant and may
not
be assigned by Consultant or the Company, nor shall it be assignable by
operation of law by either party, without the prior written consent of the
other
party. The parties' rights and obligations under this Agreement will bind and
inure to the benefit of their respective successors, heirs, executors, and
administrators and permitted assigns.
10. LEGAL
AND
EQUITABLE REMEDIES. Consultant hereby acknowledges and agrees that in the event
of any breach of this Agreement by Consultant, including, without limitation,
the actual or threatened disclosure of Information or Service Product without
the prior express written consent of the Company, the Company will suffer an
irreparable injury, such that no remedy at law will afford it adequate
protection against, or appropriate compensation for, such injury. Accordingly,
Consultant hereby agrees that the Company shall be entitled to specific
performance of Consultant's obligations under this Agreement, as well as such
further relief as may be granted by a court of competent
jurisdiction.
11. GOVERNING
LAW; SEVERABILITY. This Agreement shall be governed by and construed according
to the laws of the State of Florida. If any provision of this Agreement is
found
by a court of competent jurisdiction to be unenforceable, that provision shall
be severed and the remainder of this Agreement shall continue in full force
and
effect.
12.
WAIVER.
The waiver by the Company of a breach of any provision of this Agreement by
Consultant shall not operate or be construed as a waiver of any other or
subsequent breach by Consultant.
13.
INJUNCTIVE
RELIEF FOR BREACH. Consultant's obligations under this Agreement are of a unique
character that gives them particular value; breach of any of such obligations
will result in irreparable and continuing damage to the Company for which there
will be no adequate remedy at law; and, in the event of such breach, the Company
will be entitled to injunctive relief and/or a decree for specific performance,
and such other and further relief as may be proper (including monetary damages
if appropriate).
14. COMPLETE
UNDERSTANDING; MODIFICATION. This Agreement, together with its Exhibits,
constitutes the final, exclusive and complete understanding and agreement of
the
Company and Consultant with respect to the subject matter hereof. Any waiver,
modification or amendment of any provision of this Agreement shall be effective
only if in writing and signed by a Company officer.
15. 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. Such notice shall be deemed given upon personal delivery
to
the appropriate address or sent by certified or registered mail, three days
after the date of mailing.
IN
WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
date
first set forth above.
|
MEDSTRONG
INTERNATIONAL
CORPORATION
|
XXXXXXXX
MANAGEMENT
CONSULTING
LLC
|
||
|
By:
/s/
Xxxxxxx Xxxxxxx
|
By:
/s/ Xxxx Xxxxxxxx
|
||
|
Print Name: Xxxxxxx X. Xxxxxxx
|
Print
Name: Xxxx Xxxxxxxx
|
||
|
Title:
President
and CEO
|
Title:
_______________________
|
EXHIBIT
A
SERVICES
Nature
of
Services:
General
organizational, business affair and business development services, as approved
by CEO, including without limitation:
|
1.
|
Assisting
in the organization of company practices and
policies;
|
|
2.
|
Interfacing
with senior executives and outside counsel to streamline contracts
and
transactions;
|
|
3.
|
Developing
a business development plan to procure content and services and monetize
the Company’s services;
|
|
4.
|
Implement
the business development plan; and
|
|
5.
|
Assist
with corporate development opportunities in coordination with the
Senior
Vice President of Corporate
Development.
|
