CommerceTel, Inc. CONSULTING AGREEMENT
CommerceTel,
Inc.
This
Consulting Agreement (the “Agreement”) is
entered into by and between CommerceTel, Inc., (the “Company”), a Nevada
corporation and Xxxx Xxxxx (“Consultant”).
1. Consulting
Relationship. During the term
of this Agreement, Consultant will provide consulting services (the “Services”) to the
Company as described on Exhibit A
attached to this Agreement. Consultant represents that Consultant is duly
licensed (as applicable) and has the qualifications, the experience and the
ability to properly perform the Services. Consultant shall use
Consultant’s best efforts to perform the Services such that the results are
satisfactory to the Company. Consultant shall devote up to 50 hours per month to
performance of the Services.
2. Fees. As consideration for the
Services to be provided by Consultant and other obligations, the Company shall
pay to Consultant the amounts specified in Exhibit B attached to
this Agreement at the times specified therein.
3. Expenses. Consultant shall
not be authorized to incur on behalf of the Company any expenses except as
expressly specified in Exhibit B without the prior
consent of the Company, which consent shall be
evidenced in writing for any expenses in excess of $250. As a
condition to receipt of reimbursement, Consultant shall be required to submit to
the Company reasonable evidence that the amount involved was expended and
related to Services provided under this Agreement.
4. Term and
Termination. Consultant shall
serve as a consultant to the Company for a period commencing on December 10,
2010 and terminating on December 9, 2011 provided however the Consulting
Relationship shall terminate prior to such date if (a) Consultant completes the
provision of the Services to the Company under this Agreement, or (b) Consultant
shall have been paid the maximum amount of consulting fees as provided in Exhibit
B.
Notwithstanding
the above, either party may terminate this Agreement at any time upon thirty
days’ written notice. In the event of such termination, Consultant
shall be paid for any portion of the Services that have been performed prior to
the termination.
5. Independent
Contractor. Consultant’s
relationship with the Company will be that of an independent contractor and not
that of an employee.
(a) Method of
Provision of Services: Consultant shall
be solely responsible for determining the method, details and means of
performing the Services. Consultant may, at Consultant’s own expense, employ or
engage the service of such employees or subcontractors as Consultant deems
necessary to perform the Services required by this Agreement (the “Assistants”). Such
Assistants are not the employees of the Company and Consultant shall be wholly
responsible for the professional performance of the Services by his Assistants
such that the results are satisfactory to the Company. Consultant
shall expressly advise the Assistants of the terms of this Agreement, and shall
require each Assistant to execute a Confidential Information and Invention
Assignment Agreement substantially in the form attached to this Agreement as
Exhibit C
(the “Confidentiality
Agreement”).
(b) No
Authority to Bind Company. Neither
Consultant, nor any partner, agent or employee of Consultant, has authority to
enter into contracts that bind the Company or create obligations on the part of
the Company without the prior written authorization of the Company.
(c) No
Benefits. Consultant
acknowledges and agrees that Consultant (or Consultant’s employees, if
Consultant is an entity) will not be eligible for any Company employee benefits
and, to the extent Consultant (or Consultant’s employees, if Consultant is an
entity) otherwise would be eligible for any Company employee benefits but for
the express terms of this Agreement, Consultant (on behalf of itself and its
employees) hereby expressly declines to participate in such Company employee
benefits.
(d) Withholding;
Indemnification. Consultant shall
have full responsibility for applicable withholding taxes for all compensation
paid to Consultant, its partners, agents or its employees under this Agreement,
and for compliance with all applicable labor and employment requirements with
respect to Consultant’s self-employment, sole proprietorship or other form of
business organization, and Consultant’s partners, agents and employees,
including state worker’s compensation insurance coverage requirements and any US
immigration visa requirements. Consultant agrees to indemnify, defend
and hold the Company harmless from any liability for, or assessment of, any
claims or penalties with respect to such withholding taxes, labor or employment
requirements, including any liability for, or assessment of, withholding taxes
imposed on the Company by the relevant taxing authorities with respect to any
compensation paid to Consultant or Consultant’s partners, agents or its
employees.
6. Supervision
of Consultant’s Services. All of the
Services to be performed by Consultant, including but not limited to the
Services, will be as agreed between Consultant and the Company’s CEO, Xxxxxx
Xxxxxx. Consultant will be required to report to the CEO concerning the Services
performed under this Agreement. The nature and frequency of these
reports will be left to the discretion of the CEO.
7. Consulting
or Other Services for Competitors. Consultant represents and
warrants that Consultant does not presently perform or intend to perform, during
the term of the Agreement, consulting or other services for, or engage in or
intend to engage in an employment relationship with, companies who businesses or
proposed businesses in any way involve products or services which would be
competitive with the Company’s products or services, or those products or
services proposed or in development by the Company during the term of the
Agreement (except for those companies, if any, listed on Exhibit D attached
hereto). If, however, Consultant decides to do so, Consultant agrees
that, in advance of accepting such work, Consultant will promptly notify the
Company in writing, specifying the organization with which Consultant proposes
to consult, provide services, or become employed by and to provide information
sufficient to allow the Company to determine if such work would conflict with
the terms of this Agreement, including the terms of the Confidentiality
Agreement, the interests of the Company or further services which the Company
might request of Consultant. If the Company determines that such work
conflicts with the terms of this Agreement, the Company reserves the right to
terminate this Agreement immediately.
8. Confidentiality
Agreement. Consultant shall
sign, or has signed, a Confidentiality Agreement on or before December 10,
2010. In the event that Consultant is an entity or otherwise will be
causing individuals in its employ or under its supervision to participate in the
rendering of the Services, Consultant warrants that it shall cause each of such
individuals to execute a Confidentiality Agreement.
9. Conflicts
with this Agreement. Consultant
represents and warrants that neither Consultant nor any of Consultant’s
partners, employees or agents is under any pre-existing obligation in conflict
or in any way inconsistent with the provisions of this Agreement. Consultant
represents and warrants that Consultant’s performance of all the terms of this
Agreement will not breach any agreement to keep in confidence proprietary
information acquired by Consultant in confidence or in trust prior to
commencement of this Agreement. Consultant warrants that Consultant has the
right to disclose and/or or use all ideas, processes, techniques and other
information, if any, which Consultant has gained from third parties, and which
Consultant discloses to the Company or uses in the course of performance of this
Agreement, without liability to such third parties. Notwithstanding
the foregoing, Consultant agrees that Consultant shall not bundle with or
incorporate into any deliveries provided to the Company herewith any third party
products, ideas, processes, or other techniques, without the express, written
prior approval of the Company. Consultant represents and warrants
that Consultant has not granted and will not grant any rights or licenses to any
intellectual property or technology that would conflict with Consultant’s
obligations under this Agreement. Consultant will not knowingly
infringe upon any copyright, patent, trade secret or other property right of any
former client, employer or third party in the performance of the Services
required by this Agreement.
10. Miscellaneous.
(a) Amendments
and Waivers. Any
term of this Agreement may be amended or waived only with the written consent of
the parties.
(b) Sole
Agreement. This Agreement,
including the Exhibits hereto, constitutes the sole agreement of the parties and
supersedes all oral negotiations and prior writings with respect to the subject
matter hereof.
(c) Notices. Any notice
required or permitted by this Agreement shall be in writing and shall be deemed
sufficient upon receipt, when delivered personally or by courier, overnight
delivery service or confirmed facsimile, 48 hours after being deposited in the
regular mail as certified or registered mail (airmail if sent internationally)
with postage prepaid, if such notice is addressed to the party to be notified at
such party’s address or facsimile number as set forth below, or as subsequently
modified by written notice.
(d) Choice of
Law. The validity,
interpretation, construction and performance of this Agreement shall be governed
by the laws of the State of California, without giving effect to the principles
of conflict of laws.
(e) Severability. If one or more
provisions of this Agreement are held to be unenforceable under applicable law,
the parties agree to renegotiate such provision in good faith. In the
event that the parties cannot reach a mutually agreeable and enforceable
replacement for such provision, then (i) such provision shall be excluded
from this Agreement, (ii) the balance of the Agreement shall be interpreted
as if such provision were so excluded and (iii) the balance of the
Agreement shall be enforceable in accordance with its terms.
(f) Counterparts. This Agreement
may be executed in counterparts, each of which shall be deemed an original, but
all of which together will constitute one and the same instrument.
(g) Arbitration. Any dispute or claim arising
out of or in connection with any provision of this Agreement will be finally
settled by binding arbitration in San Diego County, California, in accordance
with the rules of the American Arbitration Association by one arbitrator appointed in accordance
with said rules. The arbitrator shall apply California law, without
reference to rules of conflicts of law or rules of statutory arbitration, to the
resolution of any dispute. Judgment on the award rendered by the
arbitrator may be entered in any court having jurisdiction
thereof. Notwithstanding the foregoing, the parties may apply to any
court of competent jurisdiction for preliminary or interim equitable relief, or
to compel arbitration in accordance with this paragraph, without breach of this
arbitration provision. This Section 10(g) shall not apply to the
Confidentiality Agreement.
(h) Advice of
Counsel. EACH PARTY
ACKNOWLEDGES THAT, IN EXECUTING THIS AGREEMENT, SUCH PARTY HAS HAD THE
OPPORTUNITY TO SEEK THE ADVICE OF INDEPENDENT LEGAL COUNSEL, AND HAS READ AND
UNDERSTOOD ALL OF THE TERMS AND PROVISIONS OF THIS AGREEMENT. THIS
AGREEMENT SHALL NOT BE CONSTRUED AGAINST ANY PARTY BY REASON OF THE DRAFTING OR
PREPARATION HEREOF.
[Signature
Page Follows]
The
parties have executed this Agreement on the respective dates set forth
below.
| CommerceTel, Inc. | |||
|
|
By:
|
Xxxxxx Xxxxxx | |
| Signature | |||
| Title: | CEO | ||
| Address: | 0000 Xxxx Xxxxx | ||
| Xxx Xxxxx, XX 00000 | |||
| Date: | |||
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| XXXX XXXXX | |||
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Signature
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|||
| Address: | |||
| Date: | |||
EXHIBIT
A
DESCRIPTION OF CONSULTING
SERVICES
|
Description of Services
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1. All
services and obligations as acting CFO for CommerceTel Corporation, for up
to 50 hours per month as described in Section 1, including without
limitation acting as the Company’s principal financial and accounting
officer for purposes of signing the Company’s filings with the Securities
and Exchange Commission.
|
|
EXHIBIT
B
COMPENSATION
Check
applicable payment terms:
|
x
|
For
Services rendered by Consultant under this Agreement, the Company shall
pay Consultant Consultant shall be paid $1250 upon execution of this
Agreement and $1250 at fifteen (15) day intervals thereafter during the
term of this Agreement. Unless otherwise agreed upon in writing
by Company, Company’s maximum liability for all Services performed during
the term of this Agreement shall not exceed $30,000.
|
|
o
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Consultant
shall be paid $____________ upon the execution of this Agreement and
$____________ upon completion of the Services specified on Exhibit A
to this Agreement.
|
|
x
|
The
Company will recommend that the Board grant a non-qualified option to
purchase 93,750 shares of the Company’s Common Stock, at an exercise price
equal to $0.32 per share, and which will vest and become exercisable as
follows:
|
Shares
shall vest at 1/12 per month throughout the one year term; provided however that
the Company may alter or delay the vesting period set forth herein to the extent
required to ensure consistency with its Employee Stock Ownership
Plan. No options will be earned beyond the termination date if the
contract is terminated prior to the completion of the 12 month
term.
|
o
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Consultant
is authorized to incur the following
expenses:
|
|
o
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Other:
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EXHIBIT
C
CONFIDENTIAL
INFORMATION AND
INVENTION ASSIGNMENT
AGREEMENT
EXHIBIT
D
LIST OF
COMPANIES
EXCLUDED UNDER SECTION
7
.
| No conflicts | |||||
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Additional
Sheets Attached
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| Signature of Consultant: | |||||
| Print Name of Consultant: |
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| Date: |
