INDEPENDENT CONTRACTOR AGREEMENT
THIS
INDEPENDENT CONTRACTOR AGREEMENT (“Agreement”) is effective on October 1, 2008
(“Effective Date”) by and between CyberDefender Corporation, a California
corporation having its principal place of business at 000 0xx Xxxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000 (“Company”) and Xxxxx Xxxxxx (“Contractor” or
“Consultant”) having his/her/its address at XX
Xxx 000000, Xxx Xxxxxxx, XX 00000
1. Term of
Agreement. This Agreement
shall be in effect from the date executed by the parties until the date
specified on the attached Statement of Work (the “Term”), unless extended by
mutual written agreement of the parties. This Agreement may be terminated in
accordance with Section 9.
2. Definitions.
(a)
“Intellectual Property”
shall mean all intangibles, including but not limited to, inventions, works of
authorship, documents (whether in draft or final, complete or incomplete form),
utility models, trade secrets, software, subroutines, codes, databases,
algorithms, designs, know-how, processes, procedures, methodologies, ideas,
marks, names, symbols, logos, industrial designs of any kind, text,
translations, and any similar intangibles, as well as the prototypes, samples,
copies, and other materialized forms or representations of such
intangibles.
(b)
“Proprietary Rights”
shall mean copyrights, patent rights, rights to patent applications, trademarks,
trade names, service marks, trade secrets, and designs of any kind, or any other
proprietary rights to Intellectual Property, recognized in any country of the
world, whether or not currently perfected.
(c)
“Confidential
Information” shall consist of this Agreement, any Intellectual Property
and Proprietary Rights that are owned or acquired by Company, including
Intellectual Property and Proprietary Rights that are created under this
Agreement, as well as any other information: (i) that Company designates as
confidential, orally or in writing, or in any other way before disclosure to
Contractor, or (ii) that, due to its character or nature would be treated as
secret and confidential by a reasonable person in a similar position to the
parties under like circumstances, including but not limited to names, addresses
of Company’s customers and other information concerning Company's
customers. Notwithstanding the foregoing, Confidential
Information shall NOT include information that: (i) is or becomes part of the
public domain through no act or omission of Contractor; (ii) was in Contractor’s
possession prior to the disclosure, provided that such Confidential Information
was not previously obtained by Contractor either directly or indirectly from
Company; (iii) is lawfully disclosed to Contractor by a third party who is not
in breach of any obligation not to disclose the information; or (iv) is
independently developed by Contractor, which independent development it shall be
the burden of Contractor to prove.
(d)
“Statement of Work”
shall mean the Statement of Work attached hereto as Exhibit A.
3. Services
to be Performed by Contractor. Contractor agrees
to perform the services (“Services”) described in the
Statement of Work, which forms an integral part of this Agreement.
4. Best
Efforts. Contractor agrees to use its best efforts, experience, and
professional and technical skills to perform the Services as contemplated by
this Agreement and the Project (the “Project”) as defined in the
Statement of Work. At Company’s request Contractor shall report to Company on
the status of the Services no less frequently than once every seven (7)
days. Upon notice to Contractor, Company shall have the right to
inspect any aspect of Contractor’s work that is in progress and to receive
copies of all or any portion of Contractor’s work product relating to the
Project at any time.
Subject
to any particular provision set out in the Statement of Work, if at any time it
appears to be impossible for Contractor to complete the Services on schedule,
Contractor shall promptly notify Company of such determination, and explain to
the Company the reasons therefor. In such case, Company may, in its
sole discretion, terminate this Agreement or develop an alternative procedure
and schedule for achieving the desired result.
5. Fee and
Expenses. Company will compensate Contractor for Services
satisfactorly performed by Contractor in accordance with the Statement of Work
under this Agreement per the fee schedule set out in the Statement of
Work.
6. New
Intellectual Property. Subject to the foregoing, Company shall
acquire all title, ownership and interest in and to all Intellectual Property
and other Proprietary Rights that are created, discovered or learned by any
party hereto, or by the parties jointly during the performance of this
Agreement.
7. Use of
New Intellectual Property and Proprietary Rights. To ensure
that Company will be able to acquire, retain and use the Intellectual Property
and Proprietary Rights to which it is entitled under this Agreement, Contractor
shall promptly: (i) disclose to the Company, or to any persons designated by
Company, any and all Intellectual Property made, conceived, reduced to practice
or learned during the performance of the Services (such obligation to disclose
to continue for a period of two years following the expiration or termination of
this Agreement), (ii) transfer possession, ownership and title to any and all
media, models, documents and other tangible media or objects containing
Intellectual Property and Proprietary Rights to Company, and (iii) provide
Company with reasonable support, information, assistance and cooperation in
connection with Company’s efforts to perfect, register, secure,
defend and enforce such Intellectual Property and Proprietary Rights of the
Company.
8. Non-disclosure
of Confidential Information. Contractor agrees
to use the Company’s Confidential Information only for the purposes of this
Agreement, and to hold Company’s Confidential Information in strict confidence
during and for a period of three (3) years after the expiration or termination
of this Agreement, except that Contractor’s obligation not to disclose any of
Company’s trade secrets shall continue without limitation following the
expiration or termination of this Agreement except as may be required by proper
legal or governmental action,. Contractor agrees to take all reasonable steps to
ensure that the Company’s Confidential Information is not disclosed or
distributed in violation of the terms of this Agreement.
9. Termination
By Parties.
(a) Company
and Contractor may terminate this Agreement without cause upon 30 days advance
written notice.
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(b) If
Contractor defaults in the performance of this Agreement or materially breaches
any of its terms, Company, at its sole option, may terminate this Agreement
immediately by giving written notice to Contractor. For purposes of
this section, material breach of this Agreement shall include, but not be
limited to, failure to complete all or part of the Services in a timely and
professional manner as provided herein, Contractor’s habitual neglect, gross
negligence or willful wrongdoing in the performance of Contractor’s duties, or
Contractor’s breach of the obligations to maintain the confidence of the
Proprietary Information.
(c) Except
as provided herein, upon termination, all rights and duties of the parties shall
cease except that Company shall be obliged to pay, within thirty (30) days of
the effective date of the termination: (i) all amounts owed to
Contractor for Services completed and accepted by Companyprior to the
termination date; and (ii) expenses, if any, that have been mutually agreed upon
by the Parties and in accordance with provisions in this Agreement
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10. Return of
Company Property. Upon the termination of this Agreement for
any reason, or earlier at the request of Company, Contractor shall deliver to
Company any and all notes, memoranda, drawings, lists, specifications, devices,
formulae, and documents (whether in draft or final, complete or incomplete
form), together with all copies thereof, and any other material relating to the
Services.
11. Non-Solicitation. Contractor
agrees that, during the Term and for a period of two (2) years thereafter,
Contractor shall not directly or indirectly (i) solicit or in any manner
encourage employees, contractors or consultants of the Company to end their
relationships with the Company; or (ii) take away, or attempt to take
away the business of any customer of the Company with whom Contractor became
acquainted, or who becomes known to Contractor during the term of this
Agreement. Notwithstanding the forgoing, Contractor shall have no
restriction in contacting or soliciting other business from any entity with whom
he has a relationship or acquaintance prior to his engagement with the
Company.
12. Maintenance
of Records. Contractor
agrees to keep and maintain adequate and current written records of all
Intellectual Property made by Contractor (solely or jointly with others) during
the term of his relationship with the Company. The records will be in the form
of notes, lists, sketches, drawings, or any other forms that may be specified
from time to time by the Company. The records will be available to and remain
the sole property of the Company at all times.
13. No
Conflicting Obligations. Contractor represents that his
performance under this Agreement, and that his relationship to the Company does
not and will not breach any agreement to keep confidential proprietary
information of a third party. Contractor represents and warrants that he has not
entered into, and that he will not enter into any agreement, written or oral,
that is or may be in conflict with this Agreement. Contractor understands that
he is not to breach any obligation of confidentiality to others during his
relationship with the Company.
14. No
Improper Use of Information of Others. Contractor
represents and warrants that Contractor shall not use, bring or disclose to the
Company in the performance of his obligations hereunder any trade secret,
software, electronic media or other information or property of any other person
or entity (“Property of Others”) which is not generally available to the public,
unless Contractor has obtained such person’s or entity’s written authorization
for its disclosure, possession and use.
15. Independent
Contractor. In performing this Agreement, Contractor shall
have the status of, and operate as, an independent contractor. This
Agreement does not create any agency, employment, partnership, joint venture,
franchise or other similar or special relationship between the parties. Company
is interested only in the results to be achieved. Neither Company nor
Contractor (or any of Contractor’s representatives) shall have the right or
authority to assume or create any obligations or to make any representations,
warranties or commitments on behalf of the other party, whether express or
implied, or to bind the other party in any respect
whatsoever. Without limiting the foregoing, Contractor shall be
solely responsible for paying when due all taxes, including estimated taxes,
incurred as a result of the compensation paid by Company to Contractor for the
Services under this Agreement. Neither party shall disclose the terms
of this Agreement nor make representation to the public or a third party
regarding any consulting or employment relationship without the consent of the
other party.
16. Compliance
with Laws. Each party shall comply with all applicable laws
and regulations to which it is subject.
17. Representations
and Warranties. Contractor hereby represents and warrants that, in
performing the Services hereunder (i) Contractor has the requisite professional
and technical knowledge, skills and experience to perform the Services in
accordance with the highest professional and technical standards applicable to
the Services, as well as the Project, (ii) Contractor shall not infringe or
cause the Company to infringe the intellectual property rights of any third
party; and (iii) Contractor has full right and power to enter into and perform
this Agreement without the consent of any third party. Contractor
shall take all necessary precautions to prevent injury to any persons and avoid
damage to any property during the term of this Agreement. If Company
permits Contractor to use any of Company’s equipment, tools, or facilities
during the term of this Agreement, Contractor shall be solely responsible for
any injury to, or death of, any person (including himself) or damage to any
property arising out of his use of such equipment, tools or facilities, whether
or not such claim is the result of an alleged defect in the equipment, tools or
facilities, or any alleged negligence on the part of Company.
18. Equitable
Relief. Each of the parties hereto acknowledges that any breach or
threatened breach of this Agreement by any of them (“Breaching Party”) will
result in immediate and irreparable harm to the other party (“Aggrieved Party)”)
for which there will be no adequate remedy at law, and that the Aggrieved Party
shall be entitled to injunctive relief to restrain the Breaching Party from
violating this Agreement or to compel him to cease and desist all activities
that are in breach of this Agreement without posting bond or other
security. Nothing in this section shall be construed as preventing
the Aggrieved Party, or any one of them, from pursuing any other remedies
available to it/him for such breach or threatened breach, including recovery of
damages.
19. Indemnity. Company
and Contractor shall each indemnify, defend and hold the other and, if
applicable, its directors, employees, agents and affiliates harmless from and
against all claims, actions, losses, liabilities, damages, costs and expenses,
including without limitation reasonable attorney’s fees (hereinafter referred to
individually and collectively as “Claim”) arising out of or relating to any
breach of this Agreement. The foregoing obligations are contingent upon the
Aggrieved Party (i) giving the Breaching Party prompt notice of the
applicable Claim, (ii) reasonably cooperating with the Breaching Party at
the Breaching Party’s request and expense in the defense and/or settlement of
such Claim, and (iii) giving the Breaching Party the opportunity to
participate in the defense of such Claim.
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20. Survival
of Obligations. Sections 5, 6, 7, 8, 9,10, 11, 15, 18, 19, 26,
of this Agreement shall survive the expiration or termination of this Agreement,
regardless of the circumstances of such termination.
21. Entire
Agreement. This
Agreement, together with the Statement of Work attached hereto, constitute the
complete and exclusive agreement between and among the Parties hereto regarding
the subject matter of this Agreement. The Agreement supersedes all prior or
contemporaneous agreements or representations, written or oral, concerning the
subject matter hereof. In the event of any discrepancy between this
Agreement and the Statement of Work, this Agreement shall prevail unless
otherwise specified in writing.
22. Express,
Written Modifications Only. This Agreement may not be
modified or amended except in a writing expressly purporting to change this
Agreement and signed by a duly authorized representative of each
party. No other act, document, usage or custom shall be deemed to
amend or modify this Agreement.
23. No
Waiver. Any waiver by any party hereto of any default or
breach of this Agreement shall not constitute a waiver of any prior or
subsequent default or breach.
24. Assignment. None
of the parties hereto may assign this Agreement or any rights or obligations
arising hereunder without the prior written consent of the other party and any
purported assignment in violation of this Section shall be null and
void. Notwithstanding the foregoing, Company may assign this
Agreement in its entirety to an entity purchasing all or substantially all of
its equity or assets, or to the surviving entity in a merger in which Company is
not the surviving entity without the written consent of the other
party.
25. Governing
Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of California, exclusive of its choice of
law provisions. Company and Contractor each consents to the Courts of
the State of California having jurisdiction over its/his person, and Company and
Contractor each agrees that any cause of action arising out of or in relation to
this Agreement shall be brought in a Court in Los Angeles County,
California.
26. Severability. If
any provision of this Agreement is deemed invalid, illegal or unenforceable in
whole or in part, then the parties agree to modify such provision to the extent
necessary to cure the invalidity, illegality or unenforceability of the same,
while remaining as faithful to the intent of said
provision. Otherwise the remainder of this Agreement shall remain in
full force and effect according to its terms.
27. Binding
Effect. This Agreement shall be binding upon Contractor’s and
heirs, executors, administrators or other legal representatives and shall inure
to the benefit of successors and assigns of the Company. This
Agreement shall be binding upon the Company, its successors, entity purchasing
all or substantially all of its equity or assets, or to a surviving entity in a
merger in which Company is not the surviving entity and assignee and any such
successor, assignee, or entity shall be deemed substituted for Company under the
terms of this Agreement for all purposes. All previously agreed to
contracts will be superceeded by this contract. All previously agreed
to compensation agreements will no longer apply.
28. Communications
and Notice Periods. All notice periods refer to calendar days
unless otherwise noted, and all notices shall be: (i) given in writing; (ii)
sent to the address specified in the applicable Statement of Work and
Deliverables, by facsimile, e-mail, courier, or first class mail, and (iii)
deemed to have been given upon receipt or, if mailed by courier or first class
mail, five (5) days after the notice has been handed to the postal or courier
services for delivery, which ever occurs earlier.
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29.
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Acknowledgment. Contractor
certifies that he has carefully read all of the provisions of this
Agreement, that it/he understands the same, and that it/he will fully and
faithfully comply with all of the provisions of this
Agreement. To be effective this contract must be signed off by
an officer of the company and by both of the parties. If the contract is
signed by only one party – it will not be
effective.
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IN WITNESS WHEREOF, the
parties hereto have executed this Agreement effective as of the day and year
first above written.CyberDefender
Corporation
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Signed:
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__/s/
Xxxx Guseinov_______________________________
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By:
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Xxxx
Xxxxxxxx
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Title:
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Chief
Executive Officer
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CONTRACTOR
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Signed:
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__/s/
Xxxxx Harris_________________________
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By:
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Xxxxx
Xxxxxx
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Title:
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__Consultant_______________
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STATEMENT
OF WORK
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Contractor/
Consultant:
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Xxxxx
Xxxxxx
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Term:
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6
Months from the date of this contract.
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Description
of
Project: |
Consulting
Services relating to Corporate Finance Consulting
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Services
to be
provided:
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Consultant
shall be responsible for the following
tasks:
· Manage
day to day accounting
· Manage
Public reporting process with Company’s counsel and auditors
· Prepare
and maintain running financial forecast
· Occassional
meetings with board and investors
These
tasks can be amended from time to time based on the needs of the
company. The total time estimated to complete the above tasks
is approximately 8 hours per week.
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Rate
of
Compensation:
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Compensation/Stock:
· $150
per hour or $1,200 per week (paid every 2 weeks)
· Company
and consultant may elect to more hours – for which additional compensation
will be paid. Company to approve all additional hours in
advance.
· 5,000
company options per month (at $1 per share)
· 10,000
company options for month 1 and 5,000 options per month
starting month 2
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Expenses:
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Company
agrees to pay reasonably related expenses incurred by Contractor in the
course of providing the Services to Company, including costs of
travel.
(1)
All expenses must be pre-approved.
(2)
All expense invoices will be paid by Company within 14 days of receipt of
such invoices.
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Manager:
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Xxxx
Xxxxxxxx
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Work
Order Approved by Company:
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/s/ Xxxx Xxxxxxxx
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Date:
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10/1/08
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Work
Order Accepted by Consultant:
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/s/ Xxxxx Xxxxxx
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Date:
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