Exhibit 10.2
CONSULTING AGREEMENT
THIS CONSULTING AGREEMENT ("Agreement") is made and entered into as
of the 8th day of May, 2000 by and between XXXXXXX X. XXXXX ("Consultant"), and
XXXXXXX.XXX, LTD. ("Company). Consultant and Company may sometimes hereinafter
be referred to individually as a "party" or jointly as the "parties".
W I T N E S S E T H:
WHEREAS, Company desires to retain Consultant's services on a
temporary basis for the purpose of assisting Company in providing certain
strategic and other services; and
WHEREAS, Consultant is willing to provide such services to Company;
NOW, THEREFORE, in consideration of the mutual promises and
obligations specified in this Agreement, and any compensation paid to Consultant
for services hereunder, and intending to be legally bound hereby, the parties
agree as follows:
I. SCOPE OF SERVICES
A. SCOPE OF SERVICES. Consultant agrees to render consulting services
("Services") to the Company for the term of this Agreement. The Services shall
be as set forth in EXHIBIT A hereto and such other services as the Company may
from time to time prescribe. Consultant also agrees to submit to the Company, in
written form, any results of Consultant's work under this Agreement ("Results")
and all documentation of work performed under this Agreement upon request by the
Company's CEO and in a timely manner.
B. PAYMENT. Consultant shall be paid bi-weekly at a rate of Two Hundred Thousand
Dollars ($200,000.00) per year.
II. TERM OF AGREEMENT. This Agreement shall commence on the date hereof and
continue in full force until it is terminated in accordance with Article V
hereof.
III. CONFIDENTIAL INFORMATION. Company may disclose or may have previously
disclosed to Consultant or, or Consultant may obtain access to, develop, or
create, proprietary and confidential information or material concerning or
related to Company's products and/or services, or to Company's manufacturing
and/or marketing processes, servicing, existing products, or general business
operations. Such information or material may include, but is not limited to, the
discovery, invention, research, improvement, manufacture, or sale of the
products or services (including, without limitation, information created,
discovered or developed by Consultant, or made known to Consultant during the
term of this Agreement or arising out of Consultant's performance of the
Services hereunder), or Company's trade secrets, processes, formulas, data,
know-how, software, documentation, program files, flow/charts, drawings,
software diagnostic techniques and other techniques, source and object code,
standards, specifications, improvements, inventions, customer information,
accounting data, statistical data, research projects, development and marketing
plans, strategies, forecasts, computer programs, customer lists, sales, costs,
profits, and pricing methods and organizations, employee lists and
compensation plans (collectively, the "Information"). Consultant acknowledges
the confidential and secret character of the Information and agrees that the
Information is the sole, exclusive, and extremely valuable property of Company
and/or Client. Accordingly, Consultant agrees that he will not to reproduce any
of the Information without Company's prior written consent, or use the
Information except in the ordinary course of performance of this Agreement, or
divulge all or any part of the Information to any third party, either during or
after the term of this Agreement.
A. PERMITTED DISCLOSURE. Confidential Information shall not include any
information to the extent such information is generally known to the public
through no disclosure or other act or omission, direct or indirect, of
Consultant. Information shall not be deemed to be available to the general
public for the purposes of this Agreement (a) merely because it is embraced by
more general information in the prior possession of Consultant or of others, or
(b) merely because it is expressed in public literature in general terms not
specifically in accordance with the Information.
B. INJUNCTIVE RELIEF. Consultant expressly agrees that the covenants set forth
in Article III are reasonable and necessary to protect the Company and its
legitimate business interests, and to prevent the unauthorized dissemination of
confidential Information to competitors of the Company. Consultant also agrees
that the Company will be irreparably harmed and that damages alone cannot
adequately compensate the Company if there is a violation of Article III by
Consultant, and that injunctive relief against Consultant is essential for the
protection of the Company. Therefore, in the event of any such breach, it is
agreed that, in addition to any other remedies available, the Company shall be
entitled as a matter of right to injunctive relief in any court of competent
jurisdiction, plus reasonable attorneys' fees actually incurred for the securing
of such relief.
IV. INVENTIONS, COPYRIGHTS, ETC.
A. RIGHTS IN INVENTIONS. All inventions, discoveries, developments, and
improvements made, conceived or reduced to practice by Consultant under or
arising out of this Agreement ("Inventions") shall, whether or not such
Inventions are patentable or copyrightable or made or conceived or reduced to
practice or learned by Consultant either alone or jointly with others, become
and remain the sole and exclusive property of Company. Consultant shall
immediately notify Company in writing of, and provide detailed information
concerning all such Inventions, and hereby transfers and assigns all of its
rights, title, and interests in and to any such Inventions to Company,
irrespective of whether or not any patent application is, or has been, filed for
such Inventions. During and after the term of this Agreement, Consultant shall,
at Company's request and Company's expense and through attorneys and
representatives designated by Company, assist Company in making applications for
Letters Patent in the United States and/or other countries for all such
Inventions. Consultant will take whatever steps are necessary to have assigned
to Company all such applications, and to protect Company's rights and vest in
Company all rights, title, and interests in and to the Inventions and such
Letters Patent.
B. COPYRIGHTS. Consultant hereby assigns to Company all of his rights, title,
and interests in and to all copyrights on all writings, documents, reports,
papers, drawings, tabulations, books, computer programs, and other works written
or made by Consultant under or
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arising out of this Agreement ("Material"). All Materials developed by
Consultant under this Agreement are to be considered works made for hire as that
term is defined in Section 101 of the Copyright Act (17 U.S.C. ss. 101) and are
the sole and exclusive property of Company. To the extent that any such works
may not be considered works made for hire for Company under applicable law,
Consultant hereby assigns to Company and, upon their creation, will
automatically assign to Company the ownership of such works, including copyright
interests and any other intellectual property therein, without the necessity of
any further consideration. Any assignment of copyright hereunder includes all
rights of paternity, integrity, disclosure and withdrawal and any other rights
that may be known as or referred to as "moral rights" (collectively "Moral
Rights"). To the extent such Moral Rights cannot be assigned under applicable
law and to the extent the following is allowed by the laws in the various
countries where Moral Rights exist, Consultant hereby waives such Moral Rights
and consents to any action of the Company that would violate such Moral Rights
in the absence of such consent. Consultant will confirm any such waivers and
consents from time to time as requested by the Company.
C. ATTORNEY-IN-FACT. In the event, following reasonable efforts by the Company,
that Company is unable for any reason whatsoever to secure Consultant's
signature to any lawful and necessary document required to apply for or execute
any Letters Patent or other application with respect to such an Invention
(including renewals, extensions, continuations, divisions, or continuations in
part of any Inventions), Consultant hereby irrevocably designates and appoints
Company and its duly authorized officers and agents as Consultant's agents and
attorneys-in-fact to act for and in Consultant's behalf and to execute and file
any such Letters Patent and applications and to do all other lawfully permitted
acts to further the prosecution of the application with the same legal force and
effect as if executed by Consultant.
D. PRIOR INVENTIONS. Consultant has attached hereto as SCHEDULE B a complete
list of all existing Inventions to which Consultant claims ownership as of the
date of this Agreement and that Consultant desires to specifically clarify are
not subject to this Agreement, and Consultant acknowledges and agrees that such
list is complete. If no such list is attached to this Agreement, Consultant
represents that Consultant has no such Inventions at the time of signing this
Agreement. If any rights or Inventions assigned hereunder or any Results are
based on, or incorporate, or are improvements or derivatives of, or cannot be
reasonably made, used, reproduced and distributed without using or violating
technology or rights owned or licensed by Consultant and not assigned hereunder,
Consultant hereby grants the Company a perpetual, worldwide royalty-free,
non-exclusive sublicensable right and license to exploit and exercise all such
technology and rights in support of the Company's exercise or exploitation of
any Results or assigned rights or Inventions (including any modifications,
improvements and derivatives thereof).
V. TERMINATION
A. Consultant agrees that this Agreement shall have a term of three (3) months,
which period shall terminate on August 8, 2000, unless Consultant and Company
agree that such period shall be extended.
B. Company may terminate this Agreement immediately without further payment to
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Consultant if:
1. Consultant materially breaches any provision of this Agreement;
2. Consultant does not satisfactorily perform the Services agreed upon in
this Agreement; and
3. Consultant commits, attempts to commit, engages in or conspires to commit
any crime or act involving fraud, misrepresentation or gross misconduct against
the Company.
C. Upon any termination under this Article V, Consultant will immediately stop
performing all Services unless otherwise directed by Company in writing.
VI. INDEPENDENT CONTRACTOR
A. Nothing herein contained shall be deemed to create an agency, joint venture,
partnership or franchise relationship between the parties hereto. Consultant
acknowledges that he is an independent contractor, and not an agent or employee
of the Company and is not entitled to any Company employment rights or benefits
and is not authorized to act on behalf of Company. Consultant shall be solely
responsible for any and all tax obligations of Consultant, including but not
limited to, all city, state and federal income taxes, social security
withholding tax and other self employment tax incurred by Consultant. Company
shall not dictate the work hours of Consultant during the term of this
Agreement. Anything herein to the contrary notwithstanding, the parties hereby
acknowledge and agree that Company shall have no right to control the manner,
means, or method by which Consultant performs the services called for by this
Agreement. Rather, Company shall be entitled only to direct Consultant with
respect to the elements of services to be performed by Consultant and the
results to be derived by Company, to inform Consultant as to where and when such
services shall be performed, and to review and assess the performance of such
services by Consultant for the limited purposes of assuring that such services
have been performed and confirming that such results were satisfactory.
B. Consultant will devote substantially his full professional time and
attention to performing his obligations under this Agreement.
VII. GENERAL
A. ASSIGNMENT. Company shall have the right to assign, delegate, or transfer at
any time, in whole or in part, any or all of the rights, duties, and interests
herein granted without the necessity of obtaining the consent of Consultant.
Consultant acknowledges that this is a personal service contract and agrees not
to assign any rights or delegate any duties hereunder without the prior written
consent of Company.
B. CONTROLLING LAW. This Agreement will be governed by those laws of the State
of New York.
C. AMENDMENT. Except as otherwise provided herein, this Agreement may be
modified, amended, or any provision waived only by a written instrument signed
by Consultant and the Company.
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D. ENTIRE AGREEMENT. This Agreement and the Attachments hereto constitute the
entire agreement and set forth the entire understanding of the parties with
respect to the subject matter hereof, supersede all prior agreements, covenants,
arrangements, letters, communications, representations or warranties, whether
oral or written, by any officer, employee or representative of any party, and
may not be modified, amended or terminated by mutual consent except by a written
agreement specifically referring to this Agreement signed by the parties hereto
and any other party to be charged.
IN WITNESS WHEREOF, the parties hereto, each acting under due and
proper authority, and each intending to be legally bound, have executed this
Agreement on the date and year first above written.
XXXXXXX.XXX, LTD.: XXXXXXX X. XXXXX:
By: /s/ Xxxxxxx X. Xxxxxxx By: /s/ Xxxxxxx X. Xxxxx
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Name: Xxxxxxx X. Xxxxxxx Name: Xxxxxxx X. Xxxxx
Title: President and CEO
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SCHEDULE A
SCOPE OF WORK
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Consultant shall provide the following services in accordance with
the terms and conditions of the Agreement dated of even date herewith by and
between Consultant and Company to which this Schedule A is attached:
o Integration of Resumix, Inc.
o Pursuing, negotiating and executing additional strategic initiatives; and
o Ensuring the smooth transition of Xx. Xxxxxx Xxxxxxxx into his role as
CFO.
SCHEDULE B
XXXXXXX.XXX, LTD.
000 X. 00XX XXXXXX, 0XX XXXXX
XXX XXXX, XX 00000
Ladies and Gentlemen:
1. The following is a complete list of Inventions relevant to the
performance of consulting services for XxxXxxx.xxx, Ltd. (the "Company") that
have been made or conceived or first reduced to practice by me alone or jointly
with others prior to the execution of the Company's Consulting Services
Agreement (the "Agreement") that I desire to clarify are not subject to the
Agreement.
No Inventions
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X See below
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Additional sheets attached
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/s/ Xxxxxxx X. Xxxxx
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Xxxxxxx X. Xxxxx
Intellectual property developed on behalf of U.S. Medical Network, LLC.
