EXHIBIT 4.2
CONSULTING AGREEMENT
This Consulting Agreement (the "Consulting Agreement" or "Agreement") is made as
of this September 3, 2002 and between Xxxxx Xxx (hereinafter referred to as
"Consultant"), an individual, having his principle address at 0000 Xxxx Xx Xxx
Xxxxxxx Xxxxx, XX 00000 and eSynch Corporation (hereinafter referred to as the
"Company") with offices at 0000 X. Xxxxxxxxx Xxx. Xxxxx 000 Xxxxx Xxx, XX 00000.
WHEREAS, THE Company desires the Consultant to provide consulting services to
the Company pursuant hereto and Consultant is agreeable to providing such
services.
NOW THEREFORE, in consideration of the premises and the mutual promises set
forth herein, the parties hereto agree as follows:
1. Consultant shall serve as a consultant to the Company on general corporate
matters, particularly related to shareholder relations, and other projects as
may be assigned by Xxxxxx Xxxxxxxxx, Chief Executive Officer of the Company on
an as needed basis.
2. The Company shall be entitled to Consultant's services for reasonable times
when and to the extent requested by, and subject to the direction of Xx.
Xxxxxxxxx.
3. Reasonable travel and other expenses necessarily incurred by Consultant to
render such services, and approved in advance by the Company, shall be
reimbursed by the Company promptly upon receipt of proper statements, including
appropriate documentation, with regard to the nature and amount of those
expenses. Those statements shall be furnished to the Company monthly at the end
of each calendar month in the Consulting Period during which any such expenses
are incurred. Company shall pay expenses within fifteen (15) business days of
the receipt of a request with appropriate documentation.
4. In consideration for the services to be performed by Consultant, the
Consultant will receive one-million (1,000,000) shares of the common stock of
the Company.
5. It is the express intention of the parties that the Consultant is an
independent contractor and not an employee or agent of the Company. Nothing in
this agreement shall be interpreted or construed as creating or establishing the
relationship of employer and employee between the Consultant and the Company.
Both parties acknowledge that the Consultant is not an employee for state or
federal tax purposes. The Consultant shall retain the right to perform services
for others during the term of this agreement.
6. Neither this agreement nor any duties or obligations under this agreement may
be assigned by the Consultant without the prior written consent of the Company.
7. This agreement may be terminated upon ten (10) days written notice by either
the Company or the Consultant.
8. Any notices to be given hereunder by either party to the other may be given
either by personal delivery in writing or by mail, registered or certified,
postage prepaid with return receipt requested. Mailed notices shall be addressed
to the parties at the addressed appearing in the introductory paragraph of this
agreement, but each party may change the address by written notice in accordance
with the paragraph. Notices delivered personally will be deemed communicated as
of actual receipt; mailed notices will be deemed communicated as of two days
after mailing.
9. This agreement supersedes any and all agreements, either oral or written,
between the parties hereto with respect to the rendering of services by the
Consultant for the Company and contains all the covenants and agreements between
the parties with respect to the rendering of such services in any manner
whatsoever. Each party to this agreement acknowledges that no representations,
inducements, promises, or agreements, orally or otherwise, have been made by any
party, or anyone acting on behalf of any party, which are not embodied herein,
and that no other agreement, statement, or promise not contained in this
agreement shall be valid or binding. Any modification of this agreement will be
effective only if it is in writing signed by the party to be charged.
10. This agreement will be governed by and construe in accordance with the laws
of the State of California, without regard to its conflicts of laws provisions;
and the parties agree that the proper venue for the resolution of any disputes
hereunder shall be Los Angeles County, California.
11. For purposes of this Agreement, Intellectual Property will mean (i) works,
ideas, discoveries, or inventions eligible for copyright, trademark, patent or
trade secret protection; and (ii) any applications for trademarks or patents,
issued trademarks or patents, or copyright registrations regarding such items.
Any items of Intellectual Property discovered or developed by the Consultant (or
the Consultant's employees) during the term of this Agreement will be the
property of the Consultant, subject to the irrevocable right and license of the
Company to make, use or sell products and services derived from or incorporating
any such Intellectual Property without payment of royalties. Such rights and
license will be exclusive during the term of this Agreement, and any extensions
or renewals of it. After termination of this Agreement, such rights and license
will be nonexclusive, but will remain royalty-free. Notwithstanding the
preceding, the textual and/or graphic content of materials created by the
Consultant under this Agreement (as opposed to the form or format of such
materials) will be, and hereby are, deemed to be "works made for hire" and will
be the exclusive property of the Company. Each party agrees to execute such
documents as may be necessary to perfect and preserve the rights of either party
with respect to such Intellectual Property.
12. The written, printed, graphic, or electronically recorded materials
furnished by the Company for use by the Consultant are Proprietary Information
and are the property of the Company. Proprietary Information includes, but is
not limited to, product specifications and/or designs, pricing information,
specific customer requirements, customer and potential customer lists, and
information on Company's employees, agent, or divisions. The Consultant shall
maintain in confidence and shall not, directly or indirectly, disclose or use,
either during or after the term of this agreement, any Proprietary Information,
confidential information, or know-how belonging to the Company, whether or not
is in written form, except to the extent necessary to perform services under
this agreement. On termination of the Consultant's services to the Company, or
at the request of the Company before termination, the Consultant shall deliver
to the Company all material in the Consultant's possession relating to the
Company's business.
13. The obligations regarding Proprietary Information extend to information
belonging to customers and suppliers of the Company about which the Consultant
may have gained knowledge as a result of performing services hereunder.
14. The Consultant shall not, during the term of this agreement and for a period
of one year immediately after the termination of this agreement, or any
extension of it, either directly or indirectly (a) for purposes competitive with
the products or services currently offered by the Company, call on, solicit, or
take away any of the Company's customers or potential customers about whom the
Consultant became aware as a result of the Consultant's services to the Company
hereunder, either for the Consultant or for any other person or entity, or (b)
solicit or take away or attempt to solicit or take away any of the Company's
employees or consultants either for the Consultant or for any other person or
entity.
15. The Company will indemnify and hold harmless Consultant from any claims or
damages related to statements prepared by or made by Consultant that are either
approved in advance by the Company or entirely based on information provided by
the Company.
Consultant: Company:
Xxxxx Xxx ESYNCH CORPORATION
/s/ Xxxxx Xxx /s/ Xxxxxx Xxxxxxxxx
______________________ By:_________________________
Xxxxx Xxx Xxxxxx Xxxxxxxxx
Chief Executive Officer
