INDEPENDENT CONTRACTOR SERVICES AGREEMENT
This
Agreement is made and entered into as of February 5, 2007 (the “Effective
Date”),
by
and between HandHeld Entertainment, Inc. (the “Company”),
having a principal place of business at 000 Xxxxxx Xxxxxx, xxxxx 000, Xxx
Xxxxxxxxx, Xxxxxxxxxx 00000 and Xxxxxx Page, an individual having a principal
place of business at 00 Xxxxxxxxx Xxxxxx, Xxxxxxxxx, Xxxxxx, Xxxxxx Xxxxxxx
(“Contractor”).
WHEREAS,
the Company has acquired one hundred percent (100%) of the capital stock of
Putfile Limited (the “Business”),
which
business was previously managed by Contractor; and
WHEREAS,
the Company needs an experienced person to assist the Company with the
successful transition of the Business from Contractor to the Company and to
advise the Company regarding the Business; and
WHEREAS,
the Company wishes to engage Contractor and Contractor wishes to be engaged
by
the Company for such purposes.
NOW,
THEREFORE, in consideration of the premises and the covenants contained herein,
the parties hereby agree as follows:
1. Engagement
of Services.
Company
may engage the Contractor to perform the services more particularly described
in
Exhibit A
(“Project
Assignment”).
Subject to the terms of this Agreement, Contractor will render the services
set
forth in the Project Assignment accepted by Contractor in a timely manner.
The
Company and Contractor expect that Contractor will render such services remotely
(i.e., outside of the United States). However, Contractor agrees to be available
to render services to the Company for a period of no less than one (1) week
per
calendar month (“On
Site Services”)
at the
Company’s San Francisco office, which is located at the address set forth
above.
2. Compensation;
Timing.
Company
will pay Contractor the fee set forth in the Project Assignment for services
rendered pursuant to this Agreement. Upon termination of this Agreement for
any
reason, Contractor will be paid fees on the basis stated in the Project
Assignment(s) for services which have been completed. Contractor will be
reimbursed only for expenses which are incurred prior to termination of this
Agreement for any reason and which are either expressly identified in a Project
Assignment or approved in advance in writing by a Company manager. Contractor
will be reimbursed for such fees and expenses no later than seven (7) days
after
Company’s receipt of Contractor’s invoice, provided that reimbursement for
expenses may be delayed until such time as Contractor has furnished such
documentation for authorized expenses as Company may reasonably request. Time
for payment of Contractor’s fees shall be of the essence of this Agreement. If
any payments are not made on their due date for payment interest shall be paid
to the Contractor at the rate of 6% per annum accruing daily and payable for
the
date payment fell due to the date of actual payment (both dates
inclusive).
3. Independent
Contractor Relationship.
Contractor’s relationship with Company is that of an independent contractor, and
nothing in this Agreement is intended to, or should be construed to, create
a
partnership, agency, joint venture or employment relationship. Contractor will
not be entitled to any of the benefits which Company may make available to
its
employees, including, but not limited to, group health or life insurance,
profit-sharing or retirement benefits. Contractor is not authorized to make
any
representation, contract or commitment on behalf of Company unless specifically
requested or authorized in writing to do so by a Company manager. Contractor
is
solely responsible for, and will file, on a timely basis, all tax returns and
payments required to be filed with, or made to, any relevant tax authority
with
respect to the performance of services and receipt of fees under this Agreement.
Contractor is also solely responsible for, and will file, on a timely basis
all
tax returns and payments required by any foreign tax authority. Contractor
is
solely responsible for, and must maintain adequate records of, expenses incurred
in the course of performing services under this Agreement. No part of
Contractor’s compensation will be subject to withholding by Company for the
payment of any social security, federal, state or any other employee payroll
taxes (whether such taxes arise under United States or foreign law). Company
will regularly report amounts paid to Contractor by filing Form 1099-MISC with
the Internal Revenue Service as required by law.
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4. Intellectual
Property Rights.
4.1 Disclosure
and Assignment of Innovations.
(a) Innovations;
Company Innovations.
“Innovations”
includes processes, machines, compositions of matter, improvements, inventions
(whether or not protectable under patent laws), works of authorship, information
fixed in any tangible medium of expression (whether or not protectable under
copyright laws), moral rights, mask works, trademarks, trade names, trade dress,
trade secrets, know-how, ideas (whether or not protectable under trade secret
laws), and all other subject matter protectable under patent, copyright, moral
right, mask work, trademark, trade secret or other laws, and includes without
limitation all new or useful art, combinations, discoveries, formulae,
manufacturing techniques, technical developments, discoveries, artwork,
software, and designs. “Company
Innovations”
are
Innovations that Contractor, solely or jointly with others, conceives, reduces
to practice, creates, derives, develops or makes within the scope of
Contractor’s work for Company under this Agreement.
(b) Disclosure
and Ownership of Company Innovations.
Contractor agrees to make and maintain adequate and current records of all
Company Innovations, which records shall be and remain the property of Company.
Contractor agrees to promptly disclose to Company every Company Innovation.
Contractor hereby does and will assign to Company or Company’s designee
Contractor’s entire worldwide right, title and interest in and to all Company
Innovations and all associated records and intellectual property rights. To
the
extent any of the rights, title and interest in and to Company Innovations
cannot be assigned by Contractor to Company, Contractor hereby grants to Company
an exclusive, royalty-free, transferable, irrevocable, worldwide license (with
rights to sublicense through multiple tiers of sublicensees) to practice such
non-assignable rights, title and interest. To the extent any of the rights,
title and interest in and to the Company Innovations can be neither assigned
nor
licensed by Contractor to Company, Contractor hereby irrevocably waives and
agrees never to assert such non-assignable and non-licensable rights, title
and
interest against Company or any of Company’s successors in interest to such
non-assignable and non-licensable rights.
(c) Assistance.
Contractor agrees to execute upon Company’s request a signed transfer of Company
Innovations to Company in the form included in each Project Assignment for
each
of the Company Innovations, including, but not limited to, computer programs,
notes, sketches, drawings and reports. Contractor agrees to assist Company
in
any reasonable manner to obtain, perfect and enforce, for Company’s benefit,
Company’s rights, title and interest in any and all countries, in and to all
patents, copyrights, moral rights, mask works, trade secrets, and other property
rights in each of the Company Innovations. Contractor agrees to execute, when
requested, for each of the Company Innovations (including derivative works,
improvements, renewals, extensions, continuations, divisionals, continuations
in
part, or continuing patent applications thereof), (i) patent, copyright,
mask work or similar applications related to such Company Innovation,
(ii) documentation (including without limitation assignments) to permit
Company to obtain, perfect and enforce Company’s right, title and interest in
and to such Company Innovation, and (iii) any other lawful documents deemed
necessary by Company to carry out the purpose of this Agreement. If called
upon
to render assistance under this paragraph, and if such assistance is in excess
of 40 hours per week, Contractor will be entitled to a fee calculated at a
per
diem rate based on the monthly the rate specified in Exhibit A in addition
to
reimbursement of authorized expenses incurred at the prior written request
of
Company. In the event that Company is unable for any reason to secure
Contractor’s signature to any document Contractor is required to execute under
this Paragraph 4.1(c), Contractor hereby irrevocably designates and
appoints Company and Company’s duly authorized officers and agents as
Contractor’s agents and attorneys-in-fact to act for and in Contractor’s behalf
and instead of Contractor, to execute such document(s) with the same legal
force
and effect as if executed by Contractor.
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(d) Out-of-Scope
Innovations.
If
Contractor incorporates any Innovations relating in any way to Company’s
business or demonstrably anticipated research or development or business which
were conceived, reduced to practice, created, derived, developed or made by
Contractor either outside of the scope of Contractor’s work for Company under
this Agreement or prior to the Effective Date (collectively, the “Out-of-Scope
Innovations”)
into
any of the Company Innovations, Contractor hereby grants to Company or Company’s
designees a royalty-free, irrevocable, worldwide, fully paid-up license (with
rights to sublicense through multiple tiers of sublicensees) to practice all
applicable patent, copyright, moral right, mask work, trade secret and other
intellectual property rights relating to any Out-of-Scope Innovations which
Contractor incorporates, or permits to be incorporated, in any Company
Innovations. Contractor agrees that Contractor will not incorporate, or permit
to be incorporated, any Innovations conceived, reduced to practice, created,
derived, developed or made by others or any Out-of-Scope Innovations into any
of
the Company Innovations without Company’s prior written consent.
4.2 Confidential
Information.
(a) Definition
of Confidential Information.
“Confidential
Information”
as
used
in this Agreement shall mean any and all technical and non-technical information
including patent, copyright, trade secret, and proprietary information,
techniques, sketches, drawings, models, inventions, know-how, processes,
apparatus, equipment, algorithms, software programs, software source documents,
and formulae related to the current, future and proposed products and services
of Company, Company’s suppliers and customers, and includes, without limitation,
Company Innovations, Company Property, and Company’s information concerning
research, experimental work, development, design details and specifications,
engineering, financial information, procurement requirements, purchasing
manufacturing, customer lists, business forecasts, sales and merchandising
and
marketing plans and information.
(b) Nondisclosure
and Nonuse Obligations.
Except
as permitted in this paragraph, Contractor shall neither use nor disclose the
Confidential Information. Contractor may use the Confidential Information solely
to perform Project Assignment(s) for the benefit of Company. Contractor agrees
that Contractor shall treat all Confidential Information of Company with the
same degree of care as Contractor accords to Contractor’s own Confidential
Information, but in no case less than reasonable care. If Contractor is not
an
individual, Contractor agrees that Contractor shall disclose Confidential
Information only to those of Contractor’s employees who need to know such
information, and Contractor certifies that such employees have previously
agreed, either as a condition of employment or in order to obtain the
Confidential Information, to be bound by terms and conditions substantially
similar to those terms and conditions applicable to Contractor under this
Agreement. Contractor agrees not to communicate any information to Company
in
violation of the proprietary rights of any third party. Contractor will
immediately give notice to Company of any unauthorized use or disclosure of
the
Confidential Information. Contractor agrees to assist Company in remedying
any
such unauthorized use or disclosure of the Confidential
Information.
(c) Exclusions
from Nondisclosure and Nonuse Obligations.
Contractor’s obligations under Paragraph 4.2(b) (“Nondisclosure
and Nonuse Obligations”)
with
respect to any portion of the Confidential Information shall not apply to any
such portion which Contractor can demonstrate, (a) was in the public domain
at or subsequent to the time such portion was communicated to Contractor by
Company through no fault of Contractor; (b) was rightfully in Contractor’s
possession free of any obligation of confidence at or subsequent to the time
such portion was communicated to Contractor by Company; or (c) was
developed by Contractor independently of and without reference to any
information communicated to Contractor by Company. A disclosure of Confidential
Information by Contractor, either (a) in response to a valid order by a
court or other governmental body, (b) otherwise required by law, or
(c) necessary to establish the rights of either party under this Agreement,
shall not be considered to be a breach of this Agreement or a waiver of
confidentiality for other purposes; provided, however, that Contractor shall
provide prompt prior written notice thereof to Company to enable Company to
seek
a protective order or otherwise prevent such disclosure.
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4.3 Ownership
and Return of Company Property.
All
materials (including, without limitation, documents, drawings, models,
apparatus, sketches, designs, lists, and all other tangible media of expression)
furnished to Contractor by Company, whether delivered to Contractor by Company
or made by Contractor in the performance of services under this Agreement
(collectively, the “Company
Property”)
are
the sole and exclusive property of Company or Company’s suppliers or customers,
and Contractor hereby does and will assign to Company all rights, title and
interest Contractor may have or acquire in the Company Property. Contractor
agrees to keep all Company Property at Contractor’s premises unless otherwise
permitted in writing by Company. At Company’s request and no later than five (5)
days after such request, Contractor shall destroy or deliver to Company, at
Company’s option, (a) all Company Property, (b) all tangible media of
expression in Contractor’s possession or control which incorporate or in which
are fixed any Confidential Information, and (c) written certification of
Contractor’s compliance with Contractor’s obligations under this
sentence.
4.4 Observance
of Company Rules.
At all
times while on Company’s premises, Contractor will observe Company’s rules and
regulations with respect to conduct, health and safety and protection of persons
and property.
5. No
Conflict of Interest.
During
the term of this Agreement, Contractor will not accept work, enter into a
contract, or accept an obligation, inconsistent or incompatible with
Contractor’s obligations, or the scope of services rendered for Company, under
this Agreement. Contractor warrants that, to the best of Contractor’s knowledge,
there is no other contract or duty on Contractor’s part which conflicts with or
is inconsistent with this Agreement. Contractor agrees to indemnify Company
from
any and all loss or liability incurred by reason of the alleged breach by
Contractor of any services agreement with any third party.
6. Term
and Termination.
6.1 Term.
This
Agreement is effective as of the Effective Date set forth above and will
continue until February 4, 2008, unless sooner terminated pursuant to the
provisions set forth herein (the “Term”).
6.2 Termination
by Company.
Company
may terminate this Agreement without cause at any time, with termination
effective immediately upon Company’s delivery to Contractor of written notice of
termination.
6.3 Termination
by Contractor.
Contractor may terminate this Agreement without cause at any time, with
termination effective immediately upon Contractor’s delivery to Company of
written notice of termination.
6.4 Survival.
The
definitions contained in this Agreement and the rights and obligations contained
in Paragraphs 4 (“Intellectual Property Rights”), 6.4 (“Survival”),
and 7 (“General Provisions”) will survive any termination or expiration of this
Agreement.
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7. General
Provisions.
7.1 Successors
and Assigns.
Contractor may not subcontract or otherwise delegate Contractor’s obligations
under this Agreement without Company’s prior written consent. Subject to the
foregoing, this Agreement will be for the benefit of Company’s successors and
assigns, and will be binding on Contractor’s assignees.
7.2 Notices.
Any
notice required or permitted by this Agreement shall be in writing and shall
be
delivered as follows, with notice deemed given as indicated: (a) by
personal delivery, when delivered personally; (b) by overnight courier,
upon written verification of receipt; (c) by telecopy or facsimile
transmission, upon acknowledgment of receipt of electronic transmission; or
(d) by certified or registered mail, return receipt requested, upon
verification of receipt. Notice shall be sent to the addresses set forth in
the
Purchase Agreement or to such other address as either party may specify in
writing.
7.3 Governing
Law.
This
Agreement shall be governed in all respects by the laws of the United States
of
America and by the laws of the State of California, as such laws are applied
to
agreements entered into and to be performed entirely within California between
California residents. Each of the parties irrevocably consents to the exclusive
personal jurisdiction of the federal and state courts located in California,
as
applicable, for any matter arising out of or relating to this Agreement, except
that in actions seeking to enforce any order or any judgment of such federal
or
state courts located in California, such personal jurisdiction shall be
nonexclusive.
7.4 Severability.
If any
provision of this Agreement is held by a court of law to be illegal, invalid
or
unenforceable, (i) that provision shall be deemed amended to achieve as
nearly as possible the same economic effect as the original provision, and
(ii) the legality, validity and enforceability of the remaining provisions
of this Agreement shall not be affected or impaired thereby.
7.5 Waiver;
Amendment; Modification.
No term
or provision hereof will be considered waived by Company, and no breach excused
by Company, unless such waiver or consent is in writing signed by Company.
The
waiver by Company of, or consent by Company to, a breach of any provision of
this Agreement by Contractor, shall not operate or be construed as a waiver
of,
consent to, or excuse of any other or subsequent breach by Contractor. This
Agreement may be amended or modified only by mutual agreement of authorized
representatives of the parties in writing.
7.6 Injunctive
Relief for Breach.
Contractor’s obligations under this Agreement are of a unique character that
gives them particular value; Contractor’s breach of any of such obligations will
result in irreparable and continuing damage to Company for which there will
be
no adequate remedy at law; and, in the event of such breach, 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).
7.7 Entire
Agreement.
This
Agreement constitutes the entire agreement between the parties relating to
this
subject matter and supersedes all prior or contemporaneous oral or written
agreements concerning such subject matter. The terms of this Agreement will
govern all Project Assignments and services undertaken by Contractor for
Company.
[Remainder
of Page Intentionally Left Blank]
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IN
WITNESS WHEREOF, the parties have executed this Agreement as of the date first
written above.
|
“Company”
By:
/s/ Xxxx Oscodar
Name:
Xxxx Oscodar
Title:
President & CEO
|
“Contractor”
XXXXXX
PAGE
By:
/s/ Xxxxxx Page
Name:
Xxxxxx Page
|
6
EXHIBIT A
PROJECT
ASSIGNMENT
Services:
Contractor agrees to do the following: (i) advise the Company regarding the
transition of the Business from Contractor to the Company; (ii) manage the
Business, which shall include, without limitation, updating the xxxxxxx.xxx
website with media content, maintaining link trades, answering user questions,
and, in general, ensuring that the Business is properly
functioning.
Compensation:
Contractor will be compensated as follows:
|
·
|
The
Company shall pay Contractor Two Thousand Dollars ($2,000) per calendar
month for each month of Services rendered to the Company (the
“Fee”).
The Fee (or such portion thereof as shall have been earned by Contractor
at such time) shall be payable on the 15th
and the last day of each calendar month during the Term. Contractor
agrees
that the number of hours spent by Contractor performing Services
for the
Company shall equal approximately forty (40) hours per
week.
|
|
·
|
In
the event that the Company terminates Contractor’s consulting relationship
with the Company other than for Cause (as defined in Exhibit
B
to
this Agreement) or Contractor terminates the consulting relationship
with
the Company for Good Reason (as also defined in Exhibit
B
to
this Agreement), then Company shall pay to Contractor a termination
fee
equal to one (1) month of the then-current
Fee.
|
Expenses.
Company
will reimburse Contractor for all reasonable expenses incurred in connection
with this Project Assignment upon receipt of proper documentation of those
expenses from Contractor. All expenses in excess of Two Hundred Fifty Dollars
($250) in the aggregate, excluding travel and lodging expenses incurred in
connection with the On-Site Services, which shall require separate prior
approval, incurred in a single month will require prior approval from the
Company.
NOTE:
This
Project Assignment is governed by the terms of an Independent Contractor
Services Agreement in effect between Company and Contractor. Any item in this
Project Assignment which is inconsistent with that Agreement is
invalid.
IN
WITNESS WHEREOF, the parties have executed this Project Assignment as of the
date first written above.
|
“Company”
By:
/s/ Xxxx Oscodar
Name:
Xxxx Oscodar
Title:
President & CEO
|
“Contractor”
XXXXXX
PAGE
By:
/s/ Xxxxxx Page
Name:
Xxxxxx Page
Title:
____________________________
|
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EXHIBIT
B
DEFINITIONS
1. “Cause”
is
defined as (a) Contractor’s willful act or omission involving material injury to
the Company; (b) Contractor’s willful disobedience of reasonable directives of
the Board or Contractor’s supervisor(s); or (c) Contractor’s conviction of any
felony. No act, omission or failure to act by Contractor shall be deemed
“willful” unless committed without good faith and without reasonable belief that
the act, omission or failure to act was in the Company’s best interests.
2. “Good
Reason”
is
defined as (a) a reduction in Contractor’s Fee, without Contractor’s written
consent; (b) a material change in Contractor’s position, responsibilities and
duties measured against such position, again, without Contractor’s written
consent; or (c) the Company’s requirement that Contractor move his or her
primary business location more than fifty (50) miles from its current location
.
Contractor hereby acknowledges and agrees that rendering On Site Services
pursuant to this Agreement shall not constitute a move of Contractor’s primary
business location for purposes of Definition 2(c) above.
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