CONSULTING AGREEMENT
Effective
June 15, 2007 (“Effective Date”), Xxxxx
Xxxxxxxx XX
(“Consultant”) and INFOSEARCH MEDIA, INC. (“Company”) agree as
follows:
1. Services;
Payment; No Violation of Rights or Obligations.
Consultant agrees to undertake and complete the Services (as defined in
Exhibit A)
in
accordance with and on the schedule specified in Exhibit
A.
As the
only consideration due Consultant regarding the subject matter of this
Agreement, Company will pay Consultant in accordance with Exhibit A.
Unless
otherwise specifically agreed upon by Company in writing (and notwithstanding
any other provision of this Agreement), all activity relating to Services will
be performed by and only by Consultant.
Consultant agrees that it will not (and will not permit others to) violate
any
agreement with or rights of any third party or, except as expressly authorized
by Company in writing hereafter, use or disclose at any time Consultant’s own or
any third party’s confidential information or intellectual property in
connection with the Services or otherwise for or on behalf of
Company.
2. Ownership;
Rights; Proprietary Information; Publicity.
a. Company
shall own all right, title and interest (including patent rights, copyrights,
trade secret rights, mask work rights, trademark rights, sui
generis database
rights and all other intellectual property rights of any sort throughout the
world) relating to any and all inventions (whether or not patentable), works
of
authorship, mask works, designations, designs, know-how, ideas and information
made or conceived or reduced to practice, in whole or in part, by or for or
on
behalf of Consultant in connection with the Services or
any
Proprietary Information (as defined below) (collectively, “Inventions”) and
Consultant will promptly disclose and provide all Inventions to Company. All
Inventions are work made for hire to the extent allowed by law and, in addition,
Consultant hereby makes all assignments necessary to accomplish the foregoing
ownership. Consultant shall assist Company, at Company’s expense, to further
evidence, record and perfect such assignments, and to perfect, obtain, maintain,
enforce and defend any rights assigned. Consultant hereby irrevocably designates
and appoints Company as its agents and attorneys-in-fact, coupled with an
interest, to act for and on Consultant’s behalf to execute and file any document
and to do all other lawfully permitted acts to further the foregoing with the
same legal force and effect as if executed by Consultant and all other creators
or owners of the applicable Invention.
b. Consultant
agrees that all Inventions and all other business, technical and financial
information (including, without limitation, the identity of and information
relating to customers or employees) developed, learned or obtained by or for
or
on behalf of Consultant in connection with the Services or that are received
by
or for Company in confidence, constitute “Proprietary Information.” Consultant
shall hold in confidence and not disclose or, except in performing the Services,
use any Proprietary Information. However, Consultant shall not be obligated
under this paragraph with respect to information Consultant can document is
or
becomes readily publicly available without restriction through no fault of
Consultant. Upon termination or as otherwise requested by Company, Consultant
will promptly provide to Company all items and copies containing or embodying
Proprietary Information, except that Consultant may keep its personal copies
of
its compensation records and this Agreement. Consultant also recognizes and
agrees that Consultant has no expectation of privacy with respect to Company’s
telecommunications, networking or information processing systems (including,
without limitation, stored computer files, email messages and voice messages)
and that Consultant’s activity, and any files or messages, on or using any of
those systems may be monitored at any time without notice.
c. As
additional protection for Proprietary Information, Consultant agrees that during
the period over which it is to be providing the Services (i) and
for
one year thereafter, Consultant will not directly or indirectly encourage or
solicit any employee or consultant of Company to leave Company for any reason
and (ii) Consultant will not engage in any activity that is in any way
competitive with the business or demonstrably anticipated business of Company,
and Consultant will not assist any other person or organization in competing
or
in preparing to compete with any business or demonstrably anticipated business
of Company. Without limiting the foregoing, Consultant may perform services
for
other persons, provided that such services do not represent a conflict of
interest or a breach of Consultant’s obligation under this Agreement or
otherwise.
d. To
the
extent allowed by law, Section 2.a and any license granted Company 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,” “artist’s
rights,” “droit moral,” or the like. Furthermore, Consultant agrees that
notwithstanding any rights of publicity, privacy or otherwise (whether or not
statutory) anywhere in the world, and without any further compensation, Company
may and is hereby authorized to (and to allow others to) use Consultant’s name
in connection with promotion of its business, products or services. To the
extent any of the foregoing is ineffective under applicable law, Consultant
hereby provides any and all ratifications and consents necessary to accomplish
the purposes of the foregoing to the extent possible. Consultant will confirm
any such ratifications and consents from time to time as requested by Company.
If any other person is in any way involved in any Services, Consultant will
obtain the foregoing ratifications, consents and authorizations from such person
for Company’s exclusive benefit.
e. If
any
part of the Services or Inventions or information provided hereunder is based
on, incorporates, or is an improvement or derivative of, or cannot be reasonably
and fully made, used, reproduced, distributed and otherwise exploited without
using or violating technology or intellectual property rights owned by or
licensed to Consultant (or any person involved in the Services) and
not
assigned hereunder, Consultant hereby grants Company and its successors a
perpetual, irrevocable, worldwide royalty-free, non-exclusive, sublicensable
right and license to exploit and exercise all such technology and intellectual
property rights in support of Company’s exercise or exploitation of the
Services, Inventions, other work or information performed or provided hereunder,
or any assigned rights (including any modifications, improvements and
derivatives of any of them).
3. Warranties
and Other Obligations.
Consultant represents, warrants and covenants that: (i) the Services will
be performed in a professional and workmanlike manner and that none of such
Services nor any part of this Agreement is or will be inconsistent with any
obligation Consultant may have to others; (ii) all work under this
Agreement shall be Consultant’s original work and none of the Services or
Inventions nor any development, use, production, distribution or exploitation
thereof will infringe, misappropriate or violate any intellectual property
or
other right of any person or entity (including, without limitation, Consultant);
(iii) Consultant has the full right to allow it to provide Company with the
assignments and rights provided for herein (and has written enforceable
agreements with all persons necessary to give it the rights to do the foregoing
and otherwise fully perform this Agreement and, in addition, Consultant will
have each person who may be involved in any way with, or have any access to,
any
Services or Proprietary Information will enter into (prior to any such
involvement or access) a binding agreement for Company’s benefit comparable in
every way to this Agreement, or such other replacement form as may requested
by
Company; (iv) Consultant shall comply with all applicable laws and Company
safety rules in the course of performing the Services; and (v) if Consultant’s
work requires a license, Consultant has obtained that license and the license
is
in full force and effect.
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4. Termination.
This
Agreement will become effective as of the Effective Date and shall continue
for
a period of three months.
5. Relationship
of the Parties; Independent Contractor; No Employee Benefits.
Notwithstanding any provision hereof, Consultant is an independent contractor
and is not an employee, agent, partner or joint venturer of Company and shall
not bind nor attempt to bind Company to any contract. Consultant shall accept
any directions issued by Company pertaining to the goals to be attained and
the
results to be achieved by Consultant, but Consultant shall be solely responsible
for the manner and hours in which the Services are performed under this
Agreement. Consultant shall not be eligible to participate in any of Company’s
employee benefit plans, fringe benefit programs, group insurance arrangements
or
similar programs. Company shall not provide workers’ compensation, disability
insurance, Social Security or unemployment compensation coverage or any other
statutory benefit to Consultant. Consultant shall comply at Consultant’s expense
with all applicable provisions of workers’ compensation laws, unemployment
compensation laws, federal Social Security law, the Fair Labor Standards Act,
federal, state and local income tax laws, and all other applicable federal,
state and local laws, regulations and codes relating to terms and conditions
of
employment required to be fulfilled by employers or independent contractors.
Consultant will ensure that its employees, contractors and others involved
in
the Services, if any, are bound in writing to the foregoing, and to all of
Consultant’s obligations under any provision of this Agreement, for Company’s
benefit and Consultant will be responsible for any noncompliance by them.
6. Assignment.
This
Agreement and the services contemplated hereunder are personal to Consultant
and
Consultant shall not have the right or ability to assign, transfer or
subcontract any rights or obligations under this Agreement without the written
consent of Company. Any attempt to do so shall be void. Company may fully assign
and transfer this Agreement in whole or part.
7. Notice.
All
notices under this Agreement shall be in writing and shall be deemed given
when
personally delivered, or three days after being sent by prepaid certified or
registered U.S. mail to the address of the party to be noticed as set forth
herein or to such other address as such party last provided to the other by
written notice.
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8. Miscellaneous.
Any
breach of Section 2 or 3 will cause irreparable harm to Company for which
damages would not be an adequate remedy, and therefore, Company will be entitled
to injunctive relief with respect thereto in addition to any other remedies.
The
failure of either party to enforce its rights under this Agreement at any time
for any period shall not be construed as a waiver of such rights. No changes
or
modifications or waivers to this Agreement will be effective unless in writing
and signed by both parties. In the event that any provision of this Agreement
shall be determined to be illegal or unenforceable, that provision will be
limited or eliminated to the minimum extent necessary so that this Agreement
shall otherwise remain in full force and effect and enforceable. This Agreement
shall be governed by and construed in accordance with the laws of the State
of
California without regard to the conflicts of laws provisions thereof. Headings
herein are for convenience of reference only and shall in no way affect
interpretation of the Agreement.
9. Arbitration.
Any
controversy or claim (except those regarding Inventions, Proprietary Information
or intellectual property) arising out of or relating to this Agreement, or
the
breach thereof, shall be settled by arbitration in accordance with the
Commercial Arbitration Rules of the American Arbitration Association, and
judgment on the award rendered by the arbitrator may be entered in any court
having jurisdiction thereof, provided however, that each party will have a
right
to seek injunctive or other equitable relief in a court of law. The prevailing
party will be entitled to receive from the nonprevailing party all costs,
damages and expenses, including reasonable attorneys’ fees, incurred by the
prevailing party in connection with that action or proceeding, whether or not
the controversy is reduced to judgment or award. The prevailing party will
be
that party who may be fairly said by the arbitrator(s) to have prevailed on
the
major disputed issues. Consultant hereby consents to the arbitration in the
State of California in the county of Los Angeles.
| Consultant | InfoSearch Media, Inc. | |||
| By | /s/ Xxxxx Xxxxxxxx XX | By | /s/ Xxxxxx Xxxxxxx | |
| Xxxxx Xxxxxxxx XX | Xxxxxx Xxxxxxx, President and CEO | |||
| Printed (Name, Title and Address) | Printed (Name, Title and Address) | |||
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EXHIBIT
A
SERVICES
| 1. | Description of Services. Consultant agrees to work with the incoming CFO and staff in-person as set forth below and to provide reasonable telephone and email-based support to the Company’s new CFO on an as needed basis (collectively, the "Services"). |
| 2. |
Reasonable
Time and Effort Required.
During
the term of this Agreement, Consultant shall devote sufficient
time and
attention as is required to perform the Services.
|
| 3. | Place of Engagement. Consultant will perform services at the Company’s offices for a period of approximately one week at the commencement of the Engagement. Thereafter, Consultant will perform the services in the location of his choosing, provided that, if needed by Company, Consultant will make himself available at the Company’s offices, with expenses paid by the Company, on at least two (2) Saturdays during the term. |
| 4. |
Expenses. Expense
reimbursement shall be limited to required, reasonable telephone
expenses
and long distance coach class (or equivalent) travel (transportation,
lodging and meals) authorized in writing by Company in advance,
and will
be payable after itemized invoice and delivery of receipts
in accordance
with the Company’s normal payment procedures.
|
| 5. |
Compensation.
Consultant shall be paid as follows:
|
| i. |
As
cash compensation, Consultant will receive $15,416.67 per month,
as
invoiced at the beginning of each month or partial month of this
contract
and paid in the same manner and at the same time as other consultants
to
the Company;
|
| ii. |
As
equity compensation, Company will grant
Employee 100,000 shares of InfoSearch Media, Inc., of which 33,333
shall
vest on July 15, 2007, 33,333 shall vest on August 15, 2007 and 33,334
shall vest on September 15, 2007.
|
| iii. |
Company
shall assign ownership to Consultant of his current laptop, concurrent
with the commencement of services
hereunder.
|
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