EXHIBIT 10.5
CONSULTING AGREEMENT
DATE: August 6, 2004
PARTIES: XXXXX XXXXXX (the "Consultant")
ADVANCED 3-D ULTRASOUND SERVICES, INC.
a Florida corporation (the "Company")
AGREEMENTS:
SECTION 1. RETENTION OF CONSULTANT
1.1 Effective Date. Effective August 6, 2004 (the "Effective Date") the
Company shall retain the Consultant as an independent contractor consultant, and
the Consultant hereby accepts such consulting relationship, upon the terms and
conditions set forth in this Agreement.
1.2 Services. The Consultant agrees to serve the Company as a
consultant relating to the branding of the Company's services and providing
graphics, and design services for a period of one (1) year. The Consultant shall
perform and discharge well and faithfully for the Company such consulting
services during the term of this Agreement as may be assigned to the Consultant
from time to time by the President of the Company.
SECTION 2. COMPENSATION
2.1 Consulting Fee and Expense Reimbursement. In full satisfaction for
any and all consulting services rendered by the Consultant for the Company under
this Agreement, the Company shall pay the Consultant a consulting fee and
retainer of 5,850 shares of the Company's common stock. All shares issued
hereunder shall be registered at the expense of the Company pursuant to Form
S-8.
2.2 Other Compensation and Fringe Benefits. The Consultant shall not
receive any other compensation from the Company or participate in or receive
benefits under any of the Company's employee fringe benefit programs or receive
any other fringe benefits from the Company on account of the consulting services
to be provided to the Company under this Agreement, including without limitation
health, disability, life insurance, retirement, pension, and profit sharing
benefits.
2.3 Time Records and Reports. The Consultant shall prepare accurate and
complete records of the Consultant's services for the Company under this
Agreement and agrees to submit records on a monthly basis to the Company, along
with such other documentation of the services performed under this Agreement as
reasonably requested by the Company.
SECTION 3. NATURE OF RELATIONSHIP; EXPENSES
3.1 Independent Contractor. It is agreed that the Consultant shall be
an independent contractor and shall not be the employee, servant, agent,
partner, or joint venturer of the Company, or any of its officers, directors, or
employees. The Consultant shall not have the right to or be entitled to any of
the employee benefits of the Company or its subsidiaries. The Consultant has no
authority to assume or create any obligation or liability, express or implied,
on the Company's behalf or in its name or to bind the Company in any manner
whatsoever.
3.2 Insurance and Taxes. The Consultant agrees to arrange for the
Consultant's own liability, disability, health, and workers' compensation
insurance, and that of the Consultant's employees, if any. The Consultant
further agrees to be responsible for the Consultant's own tax obligations
accruing as a result of payments for services rendered under this Agreement, as
well as for the tax withholding obligations with respect to the Consultant's
employees, if any. It is expressly understood and agreed by the Consultant that
should the Company for any reason incur tax liability or charges whatsoever as a
result of not making any withholdings from payments for services under this
Agreement, the Consultant will reimburse and indemnify the Company for the same.
3.3 Equipment, Tools, Employees and Overhead. The Consultant shall
provide, at the Consultant's expense, all equipment and tools needed to provide
services under this Agreement, including the salaries of and benefits provided
to any employees of the Consultant. Except as otherwise provided in this
Agreement, the Consultant shall be responsible for all of the Consultant's
overhead costs and expenses.
3.4 Expenses. Unless specifically otherwise agreed in writing, all
expenses will be borne by Consultant.
SECTION 4. TERM
4.1 Initial Term; Renewal. Unless otherwise terminated pursuant to the
provisions of Section 4.2, the consulting relationship under this Agreement
shall commence on the Effective Date and continue in effect for a period of one
(1) year (the "Initial Term"). Thereafter, the term of the consulting
relationship under this Agreement shall be extended for successive one-year
periods subject to either party's right to terminate the consulting relationship
at the end of the Initial Term or on any subsequent anniversary thereof by
giving the other party at least 10 days' written notice prior to the effective
date of such termination.
4.2 Early Termination. The consulting relationship under this Agreement
may be terminated prior to the end of the Initial Term or any renewal term by
the death of the Consultant, the disability of the Consultant resulting in the
inability of the Consultant to perform the consulting service, or by written
notice from the Company that, in the Company's sole determination: (a) the
Consultant has refused, failed, or is unable to render consulting services under
this Agreement; (b) the Consultant has breached any of the Consultant's other
obligations under this Agreement; or (c) the Consultant has engaged or is
engaging in conduct that in the Company's sole determination is detrimental to
the Company. If the consulting relationship is terminated for any of the reasons
set forth in the preceding sentence, the right of the Consultant to the
compensation set forth in Section 2 of this Agreement shall cease on the date of
such termination, and the Company shall have no further obligation to the
Consultant under any of the provisions of this Agreement.
4.3 Effect of Termination. Termination of the consulting relationship
shall not affect the provisions of Sections 5, 6, 7, and 8, which provisions
shall survive any termination in accordance with their terms.
SECTION 5. DISCLOSURE OF INFORMATION
The Consultant acknowledges that the Company's trade secrets, private
or secret processes as they exist from time to time, and information concerning
products, developments, manufacturing techniques, new product plans, equipment,
inventions, discoveries, patent applications, ideas, designs, engineering
drawings, sketches, renderings, other drawings, manufacturing and test data,
computer programs, progress reports, materials, costs, specifications,
processes, methods, research, procurement and sales activities and procedures,
promotion and pricing techniques, and credit and financial data concerning
customers of the Company and its subsidiaries, as well as information relating
to the management, operation, or planning of the Company and its subsidiaries
(the "Proprietary Information") are valuable, special, and unique assets of the
Company and its subsidiaries, access to and knowledge of which may be essential
to the performance of the Consultant's duties under this Agreement. In light of
the highly competitive nature of the industry in which the Company and its
subsidiaries conduct their businesses, the Consultant agrees that all
Proprietary Information obtained by the Consultant as a result of the
Consultant's relationship with the Company and its subsidiaries shall be
considered confidential. In recognition of this fact, the Consultant agrees that
the Consultant will not, during and after the Consulting Period, disclose any of
such Proprietary Information to any person or entity for any reason or purpose
whatsoever, and the Consultant will not make use of any Proprietary Information
for the Consultant's own purposes or for the benefit of any other person or
entity (except the Company and its subsidiaries) under any circumstances.
SECTION 6. NONCOMPETITION AGREEMENT
In order to further protect the confidentiality of the Proprietary
Information and in recognition of the highly competitive nature of the
industries in which the Company and its subsidiaries conduct their businesses,
and for the consideration set forth herein, the Consultant further agrees as
follows:
6.1 Restriction on Competition. During and for the period commencing on
the Effective Date and ending on the date on which the Consultant's consulting
relationship with the Company terminates, the Consultant will not directly or
indirectly engage in any Business Activities (hereinafter defined), other than
on behalf of the Company or its subsidiaries, whether such engagement is as an
officer, director, proprietor, employee, partner, investor (other than as a
holder of less than 1% of the outstanding capital stock of a publicly-traded
corporation), consultant, advisor, agent, or other participant, in any
geographic area in which the products or services of the Company or its
subsidiaries have been distributed or provided during the period of the
Consultant's consulting relationship with the Company. For purposes of this
Agreement, the term "Business Activities" shall mean any business in which the
Company is actively engaged as of the termination of this Agreement together
with all other activities engaged in by the Company or any of its subsidiaries
at any time during the Consultant's consulting relationship with the Company,
and activities in any way related to activities with respect to which the
Consultant renders consulting services under this Agreement.
6.2 Dealings with Customers of the Company. During and for the period
commencing on the Effective Date and ending on the date on which the
Consultant's consulting relationship with the Company terminates, the Consultant
will not directly or indirectly engage in any of the Business Activities (other
than on behalf of the Company or its subsidiaries) by supplying products or
providing services to any customer with whom the Company or its subsidiaries
have done any business during the consulting relationship with the Company,
whether as an officer, director, proprietor, employee, partner, investor (other
than as a holder of less than one percent (1%) of the outstanding capital stock
of a publicly traded corporation), consultant, advisor, agent, or other
participant.
6.3 Assistance to Others. During and for the period commencing on the
Effective Date and ending on the date on which the Consultant's consulting
relationship with the Company terminates, the Consultant will not directly or
indirectly assist others in engaging in any of the Business Activities in any
manner prohibited to the Consultant under this Agreement.
6.4 Company's Employees. During and for the period commencing on the
Effective Date and ending on the date on which the Consultant's consulting
relationship with the Company terminates, the Consultant will not directly or
indirectly induce employees of the Company or any of its subsidiaries or
affiliates to engage in any activity hereby prohibited to the Consultant or to
terminate their employment.
SECTION 7. INTERPRETATION
It is expressly understood and agreed that although the Consultant and
the Company consider the restrictions contained in Sections 5 and 6 of this
Agreement reasonable for the purpose of preserving the goodwill, proprietary
rights, and going concern value of the Company and its subsidiaries, if a final
judicial determination is made by a court having jurisdiction that the time or
territory or any other restriction contained in Sections 5 and 6 is an
unenforceable restriction on the activities of the Consultant, the provisions of
such restriction shall not be rendered void but shall be deemed amended to apply
as to such maximum time and territory and to such other extent as such court may
judicially determine or indicate to be reasonable. Alternatively, if the court
referred to above finds that any restriction contained in Sections 5 and 6 or
any remedy provided in Section 9 of this Agreement is unenforceable, and such
restriction or remedy cannot be amended so as to make it enforceable, such
finding shall not affect the enforceability of any of the other restrictions
contained in this Agreement or the availability of any other remedy. The
provisions of Sections 5 and 6 shall in no respect limit or otherwise affect the
obligations of the Consultant under other agreements with the Company.
SECTION 8. DESIGNS, INVENTIONS, PATENTS AND COPYRIGHTS
8.1 Intellectual Property. The Consultant shall promptly disclose,
grant, and assign to the Company for its sole use and benefit any and all
designs, inventions, improvements, technical information, know-how and
technology, and suggestions relating in any way to the products of the Company
or its subsidiaries or capable of beneficial use by customers to whom products
or services of the Company or its subsidiaries are sold or provided, that the
Consultant may conceive, develop, or acquire during the Consultant's consulting
relationship with the Company or its subsidiaries (whether or not during usual
working hours), together with all copyrights, trademarks, design patents,
patents, and applications for copyrights, trademarks, design patents, patents,
divisions of pending patent applications, applications for reissue of patents
and specific assignments of such applications that may at any time be granted
for or upon any such designs, inventions, improvements, technical information,
know-how, or technology (the "Intellectual Property").
8.2 Assignments and Assistance. In connection with the rights of the
Company to the Intellectual Property, the Consultant shall promptly execute and
deliver such applications, assignments, descriptions, and other instruments as
may be necessary or proper in the opinion of the Company to vest in the Company
title to the Intellectual Property and to enable the Company to obtain and
maintain the entire right and title to the Intellectual Property throughout the
world. The Consultant shall also render to the Company, at the Company's
expense, such assistance as the Company may require in the prosecution of
applications for said patents or reissues thereof, in the prosecution or defense
of interferences which may be declared involving any of said applications or
patents, and in any litigation in which the Company or its subsidiaries may be
involved relating to the Intellectual Property.
8.3 Copyrights. The Consultant agrees to, and hereby grants to the
Company, title to all copyrightable material first designed, produced, or
composed in the course of or pursuant to the performance of work under this
Agreement, which material shall be deemed "works made for hire" under Xxxxx 00,
Xxxxxx Xxxxxx Code, Section 1.01 of the Copyright Act of 1976. The Consultant
hereby grants to the Company a royalty-free, nonexclusive, and irrevocable
license to reproduce, translate, publish, use, and dispose of, and to authorize
others so to do, any and all copyrighted or copyrightable material created by
the Consultant as a result of work performed under this Agreement but not first
produced or composed by the Consultant in the performance of this Agreement,
provided that the license granted by this paragraph shall be only to the extent
the Consultant now has, or prior to the completion of work under this Agreement
or under any later agreements with the Company or its subsidiaries relating to
similar work may acquire, the right to grant such licenses without the Company
becoming liable to pay compensation to others solely because of such grant.
SECTION 9. REMEDIES
The Consultant acknowledges and agrees that the Company's remedy at law
for a breach or threatened breach of any of the provisions of Sections 5, 6, and
8 of this Agreement would be inadequate and, in recognition of this fact, in the
event of a breach or threatened breach by the Consultant of any of the
provisions of Sections 5, 6, and 8, the Consultant agrees that, in addition to
its remedy at law, at the Company's option, all rights of the Consultant under
this Agreement may be terminated, and the Company shall be entitled without
posting any bond to obtain, and the Consultant agrees not to oppose a request
for, equitable relief in the form of specific performance, temporary restraining
order, temporary or permanent injunction, or any other equitable remedy which
may then be available. The Consultant acknowledges that the granting of a
temporary injunction, temporary restraining order or permanent injunction merely
prohibiting the use of Proprietary Information would not be an adequate remedy
upon breach or threatened breach of Sections 5 and 6, and consequently agrees
upon any such breach or threatened breach to the granting of injunctive relief
prohibiting the design, development, manufacture, marketing or sale of products
and providing of services of the kind designed, developed, manufactured,
marketed, sold or provided by the Company or its subsidiaries during the term of
the Consultant's consulting relationship with the Company. Nothing contained in
this Section 9 shall be construed as prohibiting the Company from pursuing, in
addition, any other remedies available to it for such breach or threatened
breach.
SECTION 10. MISCELLANEOUS PROVISIONS
10.1 Assignment. This Agreement shall not be assignable by either
party, except by the Company to any subsidiary or affiliate of the Company or to
any successor in interest to the Company's business.
10.2 Binding Effect. The provisions of this Agreement shall be binding
upon and inure to the benefit of the heirs, personal representatives,
successors, and assigns of the parties.
10.3 Notice. Any notice or other communication required or permitted to
be given under this Agreement shall be in writing and shall be mailed by
certified mail, return receipt requested, postage prepaid, addressed to the
parties at the following addresses:
As to Consultant: Xxxxx Xxxxxx
120-16 000 Xxxxxx
Xxxxxxx XX 00000
As to Company: Advanced 3-D Ultrasound
Services, Inc.
0000 X. Xxxxxx Xxxxx
Xxxxxx XX 00000
All notices and other communications shall be deemed to be given at the
expiration of three (3) days after the date of mailing. The address of a party
to which notices or other communications shall be mailed may be changed from
time to time by giving written notice to the other party.
10.4 Litigation Expense. In the event of a default under this
Agreement, the defaulting party shall reimburse the nondefaulting party for all
costs and expenses reasonably incurred by the nondefaulting party in connection
with the default, including without limitation attorney's fees. Additionally, in
the event a suit or action is filed to enforce this Agreement or with respect to
this Agreement, the prevailing party or parties shall be reimbursed by the other
party for all costs and expenses incurred in connection with the suit or action,
including without limitation reasonable attorney's fees at the trial level and
on appeal.
10.5 Waiver. No waiver of any provision of this Agreement shall be
deemed, or shall constitute, a waiver of any other provision, whether or not
similar, nor shall any waiver constitute a continuing waiver. No waiver shall be
binding unless executed in writing by the party making the waiver.
10.6 Applicable Law. This Agreement shall be governed by and shall be
construed in accordance with the laws of the state of Florida. Exclusive venue
for any action arising hereunder or in connection herewith shall lie in state
court in Hillsborough County, Florida.
10.7 Entire Agreement. This Agreement constitutes the entire Agreement
between the parties pertaining to its subject matter, and it supersedes all
prior contemporaneous agreements, representations, and understandings of the
parties. No supplement, modification, or amendment of this Agreement shall be
binding unless executed in writing by all parties.
Company: Consultant:
ADVANCED 3-D ULTRASOUND
SERVICES, INC.
By: /s/ XXXX XXXXXXXXX /s/ XXXXX XXXXXX
XXXX XXXXXXXXX, President XXXXX XXXXXX
