Exhibit 10.2
INDEPENDENT CONTRACTOR AGREEMENT
THIS AGREEMENT made, entered into and effective as of April 1, 2012 (the
"Effective Date").
BY AND BETWEEN:
PSYCHIC FRIENDS NETWORK, INC. a company duly incorporated under the laws of the
State of Nevada (the "Company")
AND:
XXXXXXX XXXXX, an individual (the "Consultant")
WHEREAS, the Consultant has been appointed as President of the Company by the
Company's board of directors;
WHEREAS, the Consultant provides such officer services to the Company on a
consulting basis; and
WHEREAS, the Consultant and the Company desire to enter in to an agreement for
the terms and conditions for the provision of such consulting services.
NOW THEREFORE IN CONSIDERATION of the mutual covenants and agreements
hereinafter contained and for other good and valuable consideration (the receipt
and sufficiency of which is acknowledged by each party), the parties agree as
follows:
ARTICLE 1: SERVICES AND PAYMENT
1.1. The Company engages the Consultant as an independent contractor to provide
services described in Schedule `A' attached hereto (the "Services") from April
1, 2012 (the "Services Start Date") until removal of the Consultant as an
officer of the Company by action of the board of directors of the Company or by
any other lawful method of removal (the "Services Completion Date"), and the
Consultant agrees to perform such Services.
1.2. The Company will pay to the Consultant the fees indicated in Schedule `A'
(the "Fees"), in full payment and reimbursement for providing the Services and
for necessary expenses incurred in connection therewith, in the manner and at
the times set out in Schedule `A' attached hereto, and the Consultant will
accept such fees and expenses as full payment and reimbursement as aforesaid.
ARTICLE 2: TERM AND TERMINATION
2.1. The term of this Agreement shall commence on the Effective Date set forth
on the first page, and terminate at the end of the Services Completion Date,
unless terminated prior to that date pursuant to this Article 2 (the "Term").
2.2. Notwithstanding any other provision of this Agreement, this Agreement may
be terminated by either party giving, at any time, and for any reason, thirty
(30) days prior written notice of termination to the other party, and if this
Agreement is so terminated the Company will be under no further obligation to
the Consultant except to pay to the Consultant such fees and expenses as the
Consultant may be entitled to receive for Services provided to the date this
Agreement is so terminated.
2.3. Notwithstanding any other provision of this Agreement, if:
(a) the Consultant fails to comply with any provision of this Agreement; or
(b) any representation or warranty made by the Consultant in this Agreement is
untrue or incorrect;
(c) the Consultant breaches any covenant in this Agreement; or
(d) unless given the express written consent of the board of directors of the
Company, the Consultant fails to perform the Services required in full for any
consecutive period of 10 calendar days, then,
and in addition, to any other remedy or remedies available to the Company, the
Company may, at its sole discretion and option, terminate this Agreement
immediately upon written notice of termination to the Consultant, and if such
option is exercised, the Company will not be under any further obligation to the
Consultant except to pay to the Consultant such fees and expenses as the
Consultant may be entitled to receive for Services provided to the date this
Agreement is so terminated.
2.4. Notwithstanding any other provisions of this Agreement, the provisions of
Articles 5, 6, 7, and 8 of this Agreement and all obligations of each party that
have accrued before the effective date of termination of this Agreement that are
of a continuing nature will survive termination or expiration of this Agreement.
ARTICLE 3: INDEPENDENT CONTRACTOR
3.1. The Consultant will be an independent contractor and not the servant,
employee or agent of the Company, it being recognized, however, that to the
extent the provisions of this Agreement result in the creation of an agency
relationship to allow the Consultant to perform certain of the Services on
behalf of the Company, then the Consultant will, in that context, be the agent
of the Company, as the case may be.
3.2. The board of directors of the Company may, from time to time, give such
instructions to the Consultant as it considers necessary in connection with the
nature of the Services that the Consultant is required to provide, which
instructions the Consultant will follow, but the Consultant will not be subject
to the control of the board of directors of the Company in respect to the manner
in which such instructions are carried out.
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3.3. The Consultant will promptly pay, and be solely responsible for paying, as
the same become due and payable as a result or consequence of monies paid or
payable by the Company to the Consultant pursuant to this Agreement, all amounts
payable pursuant to applicable tax statutes, workers' compensation or workplace
safety and insurance statutes, pension plan statutes, and any other taxes,
statutory deductions, contributions, and assessments on income required by the
State of California, the Government of the United States, and any other
government or regulatory authority, agency or body.
3.4. The Consultant agrees to indemnify and save harmless the Company and every
member of the Company's board of directors against and for all and any claims,
assessments, penalties, interest charges and legal fees and disbursements and
taxes incurred as result of having to defend same made against the Company or
any member of the Company's board of directors as a result of the Consultant's
failure to comply with Article 3.3 of this Agreement, or as a result of any
decisions or investigations made by any government agency or body in connection
with the relationship between the parties hereto.
3.5. The Consultant, as an independent contractor, is not entitled to
participate in any benefits or pension plan provided by the Company to any of
its employees. The Consultant will not receive any of the following or similar
payments from the Company: vacation pay; holiday pay; sick pay; overtime pay;
benefits; automobile allowance or company car; or (unless authorized in writing
by the Chief Financial Officer or the board of directors of the Company) expense
reimbursement.
3.6. Subject to compliance with the provisions of this Agreement, the Consultant
may, at any time or times during the Term, carry on the business of providing
services to the general public either alone or in association or partnership
with another or others, so long as such provision of services does not: create a
conflict of interest with the interests of the Company; hinder the Consultant
from providing the Services to the Company; or prevent the Consultant from
providing the Services in a timely and competent manner.
3.7. The Consultant shall maintain, provide, and retain at the Consultant's own
expense entirely, such offices, facilities, and equipment as are necessary to
perform the Services, but shall be required upon request of the Company, perform
the Services at the Company's premises and/or using the Company's equipment.
Unless express permission is given by the Company, the Consultant shall not
remove any of the Company's equipment from the Company's premises.
3.8. Subject to Article 4.4 of this Agreement, the Consultant shall be
responsible for supplying and paying for the Consultant's own office support
staff, if any, in which case the Consultant shall comply with the requirements
of Articles 4.2 and 4.3 of this Agreement.
3.9. The Consultant shall, at the Consultant's own cost, obtain and maintain in
force throughout the Term of this Agreement all certifications and licenses
necessary to qualify the Consultant in connection with providing the Services in
a lawful manner.
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ARTICLE 4: ASSIGNMENT AND CONSULTANT STAFF
4.1. The Consultant will not, without the prior written consent of the Company,
assign or transfer this Agreement, in whole or in part.
4.2. Any and all personnel hired by the Consultant, as employees, consultants,
agents, subcontractors or otherwise (collectively the "Staff") shall be the
responsibility of the Consultant. The Consultant agrees to inform all Staff in
writing at the time that such Staff are hired by the Consultant that such Staff
are not employees of the Company and that the Company has no present or future
obligation to employ such Staff or provide such Staff with any compensation or
employment benefits. The Consultant will be solely responsible for the acts of
such Staff and the Staff will conduct their activities at the Consultant's risk,
expense, and supervision. The Consultant warrants and covenants that the Staff
shall be subject to all of the obligations applying to the Consultant pursuant
to this Agreement.
4.3. No contract entered into between the Consultant and any Staff will relieve
the Consultant from any of the Consultant's obligations under this Agreement or
impose any obligations or liability upon the Company to any Staff.
4.4. Notwithstanding any other provision of this Agreement, the Company reserves
the right to restrict or prohibit the engagement of any Staff hired by the
Consultant to assist with providing the Services, if the Company reasonably
deems that such person is impairing or will impair the execution or completion
of the Services in a competent or timely manner.
ARTICLE 5: OWNERSHIP AND RETURN OF PROPERTY
5.1. All property including, but not limited to, files, manuals, equipment,
securities, and monies of any and all customers of the Company related to the
provision of the Services that are, from time to time, in the possession or
control of the Consultant will be, at all times, the exclusive property of the
Company. The Consultant shall forthwith deliver all aforesaid property to the
Company on the earlier of:
(a) the termination of this Agreement;
(b) the completion by the Consultant of the provision of the Services; and
(c) upon the request, at any time, by the Company.
5.2. The Consultant agrees that upon termination of this Agreement, he shall at
once deliver to the Company all books, manuals, reports, documents, records,
effects, money, securities, whether in print or stored electronically, or other
property belonging to the Company or for which the Company is liable to others
which are in the Consultant's possession, charge, control or custody.
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ARTICLE 6: CONFIDENTIALITY
6.1. The Consultant acknowledges and agrees that the Company has certain
confidential information which is defined to include, but not limited to,
knowledge of trade secrets whether patented or not, computer programs, research
and development data, testing and evaluation plans, business plans,
opportunities, forecasts, products, strategies, proposals, suppliers, sales,
manuals, work programs, financial and marketing information, customer lists or
names, and information regarding customers, contracts and accounts of the
Company whether printed, stored electronically, or provided verbally (the
"Confidential Information"). Notwithstanding the foregoing, Confidential
Information shall not include:
(a) information that has become generally available to the public other than as
a result of a disclosure in breach of this Agreement;
(b) information that is lawfully received on a non-confidential basis by the
Consultant from a source other than the Company or any of its respective
subsidiaries, parent company, affiliates, directors, officers, employees,
agents, advisors or other representatives and such source is not prohibited from
transmitting or disclosing the data or information by reason of any contractual,
legal or fiduciary obligation; or
(c) information that the Consultant must disclose pursuant to the requirements
of law, provided that the Consultant provides prompt written notice to the
Company of such required disclosure so that the Company may seek a protective
order or other appropriate remedy or waive compliance with the requirements of
this Agreement. In the event that such protective order or other remedy is not
obtained, or the Company does not waive compliance with the requirements of this
Agreement, the Consultant agrees to furnish only that portion of the information
that he is advised by the Consultant's legal counsel in writing that the
Consultant is legally required to disclose and will exercise reasonable efforts
to obtain reliable assurance that confidential treatment will be accorded to
such information.
6.2. The Consultant acknowledges and agrees that the Confidential Information
developed or acquired by the Company is among the Company's most valuable assets
and its value may be destroyed by dissemination or unauthorized use.
6.3. The Consultant agrees to treat as confidential and will not, without the
prior written consent of a majority of the Company's board of directors
(excluding the Consultant in the event that the Consultant is a member of the
board of directors), publish, release or disclose or permit to be published,
released or disclosed, either before or after the termination of this Agreement,
any Confidential Information other than for the Company's purposes and benefit.
6.4. The Consultant agrees not to use, directly or indirectly, any Confidential
Information for the Consultant's own benefit or for the benefit of any person
competing or endeavoring to compete with the Company.
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ARTICLE 7: CONFLICT AND NON-COMPETITION
7.1. The Consultant shall not, during the Term, provide any service to any
person where the performance of that service may or does, in the reasonable
opinion of the Consultant or the actual knowledge of the Consultant, give rise
to a conflict of interest between the obligations of the Consultant, under this
Agreement, and the obligations of the Consultant to such other person.
7.2. If the Consultant is asked by any person otherwise than pursuant to this
Agreement, to perform a service the performance of which in the reasonable or
actual opinion of the Consultant might result in the Consultant breaching
Article 7.1, then the Consultant shall forthwith notify the Company's board of
directors of the particular circumstances and the Company's board of directors
will thereafter promptly notify the Consultant whether or not the Consultant
may, in light of those circumstances and Article 7.1, perform that service.
7.3. The Consultant agrees that he will not, without the prior written consent
of the Company, at any time within twelve (12) months following termination of
this Agreement, on the Consultant's own behalf, or on behalf of any person
competing or endeavoring to compete with the Company, directly or indirectly
solicit, endeavor to solicit, or seek to gain the custom of, canvass, or
interfere with any person that
(a) is a customer of the Company as of the date of termination of this
Agreement;
(b) was a customer of the Company at any time within twelve (12) months prior to
the date of termination of this Agreement; or
(c) has been pursued as a prospective customer by or on behalf of the Company at
any time within twelve (12) months prior to the date of termination of this
Agreement, and in respect of whom the Company has not determined to cease all
such pursuit.
7.4. The Consultant agrees and confirms that the restrictions in Article 7.3 are
reasonable and waives all defences to the strict enforcement of them by the
Company.
7.5. The Consultant agrees and confirms that Articles 7.3 (a), 7.3 (b), and 7.3
(c) are each separate and distinct covenants, severable one from the other, and
if any such covenant or covenants are determined to be unenforceable in whole or
in part, such unenforceability shall attach only to the covenant or covenants as
determined, and all other such covenants shall continue in full force and
effect.
7.6. Notwithstanding the foregoing, Article 7.3 shall not be valid for:
(a) customers that already have been in contact with the Consultant prior to
this Agreement; or
(b) cases where the Company has given prior explicit agreement to the Consultant
to solicit customers.
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ARTICLE 8: COMPANY'S REMEDIES
8.1. The Consultant agrees that compliance with this Agreement is absolutely
necessary for the Company to protect its overall business and position in the
marketplace and that a breach of the obligation of secrecy and confidentiality
of information of the Company and the other covenants and agreements contained
in this Agreement will result in irreparable and continuing damages to the
Company for which there will be no adequate remedy at law. As a result and in
the event of any breach of any such obligation, covenant or agreement, the
Company shall be entitled to such injunctive and other relief as may be proper
or as it may be entitled to for each and every instance of such breach from the
Consultant.
8.2. The Company may exercise these remedies at such times and in such order as
it may choose, and such remedies shall be cumulative. In the event that the
Company retains counsel in endeavoring to enforce this Agreement, the Company
shall be entitled to recover, in addition to all other relief available, its
related expenses and legal fees, as well as all applicable taxes paid and
disbursements incurred from the Consultant.
ARTICLE 9: NOTICES
9.1. Any notice will be deemed delivered: (a) on the day of delivery in person;
(b) one day after deposit with an overnight courier, fully prepaid; (c) on the
date sent by facsimile transmission; (d) on the date sent by e-mail, if
confirmed by registered mail (return receipt requested); or (e) four days after
being sent by registered mail (return receipt requested).
9.2. Any notice permitted or required under the Agreement must be in writing and
be sent such reasonable address or fax number at which personal delivery may be
effected of which a party may from time to time give notice.
9.3. Either party may, from time to time, advise the other party by notice in
writing of any change of address of the party giving such notice and from and
after the giving of such notice the address therein specified will, for the
purposes of paragraph 9.1, be conclusively deemed to be the address of the party
giving such notice.
ARTICLE 10: OWNERSHIP OF WORK
10.1. The Consultant hereby assigns to the Company the Consultant's entire
right, title and interest in and to all discoveries and improvements, patentable
or otherwise, trade secrets and ideas, writings and copyrightable material,
which may be conceived by the Consultant or developed or acquired by the
Consultant during the Term of this Agreement, which may pertain directly to the
business of the Company or any of its subsidiaries, parent company, or
affiliates (the "Work Product"). The Consultant agrees to disclose fully all
such developments to the Company upon its request, which disclosure shall be
made in writing promptly following any such request. The Consultant shall, upon
the Company's request, execute, acknowledge and deliver to the Company all
instruments and do all other acts which are necessary or desirable to enable the
Company or any of its subsidiaries to file and prosecute applications for, and
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to acquire, maintain and enforce, all patents, trademarks and copyrights in all
countries in connection with any component of the Work Product.
10.2. The Consultant agrees to assign, on an ongoing basis throughout the Term
of the Agreement, exclusively to the Company in perpetuity, all right, title and
interest of any kind whatsoever, in and to the Work Product, including any and
all copyrights thereto (and the exclusive right to register copyrights).
Accordingly, all rights in and to the Work Product, including any materials
derived therefrom or based thereon and regardless of whether any such Work
Product is actually used by the Company, shall from its creation be owned
exclusively by the Company, and the Consultant will not have or claim to have
any rights of any kind whatsoever in such Work Product. Without limiting the
generality of the foregoing, Consultant will not make any use of any of the Work
Product in any manner whatsoever without the Company's prior written consent,
which may be withheld at the sole discretion of the Company.
10.3. Notwithstanding the foregoing, the Company acknowledges that the
Consultant does not work on an exclusive basis. Any Work Product attributable to
the Consultant's other and pre-existing customers (the "Other Clients") are
excluded from paragraphs 10.1 and 10.2.
ARTICLE 11: GENERAL
11.1. Entire Agreement. This Agreement constitutes the entire Agreement between
the parties with respect to all matters herein, and there are no other
agreements in connection with this subject matter except as specifically set
forth or referred to in this Agreement. This Agreement supersedes any and all
prior agreements and understandings relating to the subject matter. Both parties
acknowledge that neither of the parties has been induced to enter into this
Agreement by any representation or writing not incorporated into this Agreement.
11.2. Governing Law. This Agreement will in all respects be governed exclusively
by and construed in accordance with the laws of the State of Nevada.
11.3. Amendments. This Agreement may only be amended if such amendment is
confirmed in writing by both parties.
11.4. Counterparts. This Agreement may be executed in any number of counterparts
with the same effect as if all parties hereto had all signed the same document.
All counterparts shall be construed together and shall constitute one and the
same original document. Each party may deliver a counterpart signature page by
facsimile transmission.
11.5. Severability. If any portion of this Agreement is declared invalid or
unenforceable, in whole or in part, it shall not be deemed to affect or impair
the validity or enforceability of any other covenant or provisions herein, and
such unenforceable portion shall be severed from the remainder of the Agreement.
11.6. Waivers. A waiver of any default, breach, or non-compliance under this
Agreement is not effective unless in writing and signed by the party to be bound
by the waiver. No waiver will be inferred from or implied by any failure to act
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or delay in acting by a party in respect of any default, breach or
non-observance or by anything done or omitted to be done by the other party. Any
waiver by a party of any default, breach or non-compliance under this Agreement
will not operate as a waiver of that party's right under this Agreement in
respect of any continuing or subsequent default, breach or non-observance.
11.7. Headings. The headings used in this Agreement are for the convenience of
reference only and do not form part of or affect the interpretation of this
Agreement.
11.8. Schedules. Any Schedules to this Agreement are an integral part of this
Agreement as if set out at length in the body of this Agreement.
11.9. Conflict. In the event that there is a conflict or inconsistency between
the wording of any of this Agreement and any Schedule, the Schedule shall
govern.
11.10. Further Assurances. The parties agree to do all such other things and to
take all such other actions as may be necessary or desirable to give full effect
to the terms of this Agreement.
11.11. Number and Gender. Unless the context requires otherwise, words importing
the singular include the plural and vice versa and words importing gender
include all genders.
11.12. "Person". In this Agreement, the term "person" is to be broadly
interpreted and includes an individual, a corporation, a partnership, a trust,
an unincorporated organization, the government of a country or any political
subdivision thereof, or any agency or department of any such government, and the
executors, administrators or other legal representatives of an individual in
such capacity; 11.13. Statute. Any reference to a statute in this Agreement,
whether or not that statute has been defined or cited, includes all regulations
made under it, any amendments made to it and in force, and any statute passed in
replacement of or in substitution for it.
* * * * *
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IN WITNESS WHEREOF the parties have duly executed this Agreement by signing
below as of the Effective Date.
Psychic Friends Network, Inc.
/s/ Xxxx Xxxxx
--------------------------------
Xxxx Xxxxx
Chief Executive Officer
Xxxxxxx Xxxxx
/s/ Xxxxxxx Xxxxx
--------------------------------
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SCHEDULE `A'
SERVICES
The Consultant is engaged as President of the Company.
Duties include:
(a) at all times serving the best interests of the Company;
(b) developing appropriate strategies and business plans of the Company
(including principally business development, growth and marketing strategies and
plans) for consideration and approval of the CEO and board of directors of the
Company;
(c) managing the performance of the strategies and plans approved by the CEO and
board of directors of the Company from time to time;
(d) representing the Company to the public and the public markets, for the
purposes of seeking investor capital and in general;
(e) fully informing the CEO and board of directors, upon request from time to
time, of the matters and things done, and to be done, by the Consultant in
connection with the provision of the Services and, if so requested by the board
of directors, submitting such information in writing in a timely manner;
(f) attending and participating in all meetings of the board of directors except
for such meetings where attendance is not reasonably practicable; and
FEES
The Fees payable to the Consultant for provision of the Services shall be the
following amounts in the lawful currency of the United States per month (or a
pro-rated amount for any partial months during which the Services are
performed), payable within ten (10) days following the end of the month within
which the Services were completed, provided that the Consultant fully performs
the Services and complies with all requirements of this Agreement.
a) Cash compensation: $1,250 per week
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