CONSULTING AGREEMENT
This Consulting Agreement ("Agreement") is entered into on the date
written below by and between Xxxxxxx.xxx, a Nevada corporation (the "Company"),
with offices located at 0000 Xxxx Xxxxxx, Xxxxxxxx, XX 00000 and Xxxxxxx Xxxxxxx
("Consultant") having a place of business at 00 Xxxx Xxxxxx 00xx Xxxxx, Xxx
Xxxx, Xxx Xxxx 00000.
RECITALS
A. The Company is a leading provider of online community and e-commerce
services for consumers and businesses.
B. Consultant has certain skills, experience and abilities with respect
to the Company's business and planned operations and strategic focus.
C. The Company desires to retain Consultant as an independent
contractor to perform consulting services (the "Services") for the Company from
time to time and Consultant is willing to perform such services, on the basis
set forth more fully below.
AGREEMENT
NOW THEREFORE, in consideration of the mutual promises contained
herein, the Company and Consultant agree as follows:
1. Services. Consultant agrees to perform the Services described in
Exhibit A hereto according to the schedule of work set forth therein. Consultant
agrees that the terms of this Agreement will apply to all Services performed by
Consultant for the Company even if Exhibit A has not been amended to include
same.
2. Payment for Services. The Company shall issue to Consultant warrants
to purchase an aggregate of 350,000 shares of the Company's Common Stock, at an
exercise price of $0.35 per share (the "Warrants"), pursuant to the terms and
conditions of the Warrant Agreement attached hereto as Exhibit B.
3. Relationship of Parties. Consultant shall perform the Services under
the general direction of the Company and agrees to devote his best efforts to
the Services and to the reasonable satisfaction of the Company. Notwithstanding,
Consultant shall determine, in Consultant's sole discretion, the manner and
means by which the Services are accomplished, subject to the express condition
that Consultant shall at all times comply with applicable law. Consultant is an
independent contractor and Consultant is not an agent or employee of the
Company, and has no authority whatsoever to bind the Company by contract or
otherwise.
4. Taxes and Benefits. Consultant acknowledges and agrees that it shall
be the obligation of Consultant to report as income all compensation received by
Consultant pursuant to this Agreement and Consultant agrees to indemnify the
Company and hold it harmless to the extent of any obligation imposed on the
Company to pay any taxes or insurance, including without limitation, withholding
taxes, social security, unemployment, or disability insurance, including
interest and penalties thereon, in connection with any payments made to
Consultant by the Company pursuant to this Agreement.
5. Inventions. All inventions, discoveries, concepts and ideas whether
patent able or not, including but not limited to hardware, software, processes,
methods, techniques as well as improvements thereto conceived (collectively
referred to as "Developments"), made, conceived or developed by Consultant and
his agents, alone or with others, which (i) result from or relate to the
Services; (ii) which Consultant or his agents may receive from the Company while
performing the Services; or (iii) result from use of the Company's equipment,
facilities or materials shall be property of the Company. Consultant hereby
assigns his entire right, title and interest in and to all such Developments and
any intellectual property rights arising therefrom. Consultant shall further
cooperate with the Company in connection with any applications, filings or
documents prepared and or filed related to the Developments. However, the
Company shall have no rights to any products or information owned or developed
by Consultant or his suppliers prior to the execution of this Agreement or
modifications to such products or information in connection with the Services.
6. Confidentiality. Consultant and his agents agree to hold the
Company's Confidential Information in strict confidence and not to disclose such
Confidential Information to any third parties. Consultant and his agents further
agree to deliver promptly all Confidential Information in Consultant's or its
agents possession to the Company at any time upon the Company's request. For
purposes hereof, "Confidential Information" shall include all confidential and
proprietary information disclosed by the Company including but not limited to
software source code, technical and business information relating to the
Company's current and proposed products, research and development, production,
manufacturing and engineering processes, costs, profits or margin information,
finances, customers, suppliers, marketing and production, personnel and future
business plans. "Confidential Information" also includes proprietary or
confidential information of any third party who may disclose such information to
the Company or Consultant and his agents in the course of the Company's
business. The above obligations shall not apply no Confidential Information
which is already know to the Consultant or his agents at the time it is
disclosed, or which before being divulged either (a) has become publicly known
through no wrongful act of the Consultant or his agents; (b) has been rightfully
received from a third party without restriction on disclosure and without breach
of this Agreement or other agreements entered into by the Company; (c) has been
independently developed by the Consultant or his agents; (d) has been approved
for release by written authorization of the Company; or (e) has been disclosed
pursuant to a requirement of a governmental agency or of law.
7. Termination. This Agreement shall commence on the date first written
below and shall continue until terminated as follows:
(a) Either party may terminate the Agreement in the event of a
breach by the other party of any of its obligations contained herein if such
breach continues incurred for a period
of ten (10) days after written notice of such breach to the other party;
(b) Either party may terminate this Agreement upon written
notice to the other party if either party is adjudicated bankrupt, files a
voluntary petition of bankruptcy, makes a general assignment for the benefit of
creditors, is unable to meet its obligations in the normal course of business as
they fall due or if a receiver is appointed on account of insolvency;
(c) Either party may terminate this Agreement for its
convenience upon ten (10) days written notice to the other if there are no
outstanding Services to be performed.
Upon the termination of this Agreement for any reason, each
party shall be released from all obligations and liabilities to the other
occurring or arising after the date of such termination, except that any
termination shall not relieve Consultant or the Company of their obligations
under Section 4 ("Taxes and Benefits"), Section 5 ("Inventions"), Section 6
("Confidentiality") and Section 8 ("General"), nor shall any such termination
relieve Consultant or the Company from any liability arising from any breach of
this Agreement.
8. General.
(a) Pre-Existing Obligations. Consultant represents and
warrants that Consultant is not under any pre-existing obligation or obligations
inconsistent with the provisions of this Agreement.
(b) Assignment. The rights and liabilities of the parties
hereto shall bind and inure to the benefit of their respective successors,
executors and administrators, as the case may be, provided that, as the Company
has contracted for Consultant's services, Consultant may not assign or delegate
its obligations under this Agreement either in whole or in part without the
prior written consent of the Company.
(c) Equitable Relief. Because the Services are personal and
unique and because Consultant shall have access to and become acquainted with
the Confidential Information of the Company, Consultant agrees that the Company
shall have the right to enforce this Agreement and any of its provisions by
injunction, specific performance or any other equitable relief without prejudice
to any other rights and remedies that the Company may have for the breach of
this Agreement.
(d) Attorney's Fees. If any action at law or in equity is
necessary to enforce the terms of this Agreement, the prevailing party shall be
entitled to reasonable attorney's fees, costs and expenses in addition to any
other relief to which such prevailing party may be entitled.
(e) Governing Law Severability. This Agreement shall be
governed by and construed in accordance with the laws of the State of California
as such laws are applied to Agreements to be entered into and to be performed
entirely within California between California
(f) Counterpart. This Agreement may be executed in
counterparts, each of which shall constitute an original and all of which shall
be one and the same instrument.
(g) Complete Understanding Modification. This Agreement
constitutes the full and complete understanding and Agreement of the parties
hereto and supersedes all prior understandings and agreements. Any waiver,
modification or amendment of any provision of this Agreement shall be effective
only in writing and signed by the parties thereto.
(h) Waiver. The failure of either party to insist upon strict
compliance with any of the terms, covenants or conditions of this Agreement by
the other party shall not be deemed a waiver of that term, covenant or
condition, nor shall any waiver or relinquishment of any right or power at any
one time be deemed a waiver or relinquishment of that right or power for all of
any other time.
(i) Incorporation by Reference. Any exhibits referred to
within this Agreement shall be considered as incorporated into, and part of,
this Agreement.
(j) 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 and shall be by personal
delivery, facsimile transmission or certified or registered mail. Such notice
shall be deemed given upon personal delivery to the appropriate address or upon
receipt of electronic transmission or, if sent by certified or registered mail,
three days after the date of the mailing.
IN WITNESS WHEREOF, the parties hereto have signed the Agreement as of
the date written below.
COMPANY: CONSULTANT:
XXXXXXX.XXX Xxxxxxx Xxxxxxx
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Print Name
By: /s/ Xxxxxx Xxxxxxxx, Xx.
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/s/ Xxxxxxx Xxxxxxx
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Signature
Date: October 30, 2000 Date: October 30, 2000
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EXHIBIT A
Services to be Provided
Consultant shall render such services as the Company may from time to time
request in connection with the evaluation of specific strategic partnerships,
investments or acquisitions for the Company, including, without limiting the
generality of the foregoing:
(1) Activeworlds.
(2) Nettoaster
(3) Crystal Technologies
