Consulting Agreement
This Consulting Agreement (the "Agreement") is entered into by
and between TotalMed Systems, Inc. a Florida corporation with a
principal place of business at 0000 X.X. Xxxxxxx Xxxx, Xxxxx 000
Xxxx, Xxxxx Xxxxxxxx 00000 (the "Company"), and Xxx X. Xxxxxxx,
an individual with a principal place of business at 000 Xxxxxxxx
Xx. Xxxxxxxx, XX 00000 ("consultant").
RECITALS
A. The Company desires to obtain the services of Consultant by
means of services provided by Consultant's employees dispatched
by Consultant to provide services to Company hereunder
("Agents"), on its own behalf and on behalf of all existing and
future Affiliated Companies (defined as any corporation or other
business entity or entities that directly or indirectly controls,
is controlled by, or is under common control with the Company),
and Consultant desires to provide consulting services to the
Company upon the following terms and conditions.
B. The Company has spent significant time, effort, and money to
develop certain Proprietary Information (as defined below), which
the Company considers vital to its business and goodwill.
C. The Proprietary Information will necessarily be communicated
to or acquired by Consultant and its Agents in the course of
providing consulting services to the Company, and the Company
desires to obtain the services of Consultant, only if, in doing
so, it can protect its Proprietary Information and goodwill.
Accordingly, the parties agree as follows:
AGREEMENT
1. Consulting Period
Basic Term The Company hereby retains the Consultant and
Consultant agrees to render to the Company those services
described in Section 2 for the period (the "Consulting Period")
commencing on the date of this Agreement and ending upon the
earlier of (i) 05/09/08 (the "Term Date"), as, and to the extent,
extended under Section I (b) and (ii) the date the Consulting
Period is terminated in accordance with Section 4. The Company
shall pay Consultant the compensation to which it is entitled
under Section 3(a) through the end of the Consulting Period, and,
thereafter, the Company's obligations hereunder shall end.
(b) Renewal Subject to Section 4, the Consulting Period will be
automatically renewed for an additional 12 month period (without
any action by either party) on the Term Date and on each
anniversary thereof, unless one party gives to the other written
notice at least thirty (30) days in advance of the beginning of
any 12 month renewal period that the Consulting Period is to be
terminated. Either party's right to terminate the Consulting
Period under this Section I (b), instead of renewing the
Agreement, shall be with or without cause.
2. Duties, Responsibilities
(a) Consultant hereby agrees to provide and perform for the
Company those services set forth on Exhibit A attached hereto.
Consultant shall devote its best efforts to the performance of
the services and to such other services as may be reasonably
requested by the Company and hereby agrees to devote, unless
otherwise requested in writing by the Company, (a minimum of at
least 20 hours of service per week/or assign a minimum of one
individual to provide services to the Company).
(b) Consultant shall use its best efforts to furnish competent
Agents possessing a sufficient working knowledge of the Company's
research, development and services to fulfill Consultant's
obligations hereunder. Any Agent of Consultant who, in the sole
opinion of the Company, is unable to adequately perform any
services hereunder shall be replaced by Consultant within 3 days
after receipt of notice from the Company of its desire to have
such Agent replaced.
(c) Consultant shall use its best efforts to comply with, and to
ensure that each of its Agents comply with, all policies and
practices regarding the use of facilities at which services are
to be performed hereunder. Consultant agrees and shall cause each
of its Agents to agree to the Acknowledgement and Inventions
Assignment attached hereto as Exhibit B, and Consultant shall
deliver a signed original of such Acknowledgement and Inventions
Assignment to Company prior to such Agent's commencement of the
provision of services for the Company.
(d) Consultant shall obtain for the benefit of the Company, as an
intended third party beneficiary thereof, prior to the
performance of any services hereunder by any of the Agents, the
written agreement of Agent to be bound by terms no less
restrictive than the terms of Sections 2(c), 5(a), 6, and 7 of
this Agreement.
(e) Personnel supplied by Consultant to provide services to
Company under this Agreement will be deemed Consultant's
employees or agents and will not for any purpose be considered
employees or agents of Company. Consultant assumes full
responsibility for the actions of such personnel while performing
services pursuant to this Agreement, and shall be solely
responsible for their supervision, daily direction and control,
provision of employment benefits (if any) and payment of salary
(including all required withholding of taxes).
3. Compensation, Benefits, Expenses
(a) Compensation In consideration of the services to be
rendered hereunder, including, without limitation, services to
any Affiliated Company, Consultant shall be paid a fee of
1,000,000 shares, pursuant to the procedures regularly
established, and as they may be amended, by the Company during
the course of this Agreement.
(b) Benefits Other than the compensation specified in this
Section 3, neither Consultant nor its Agents shall be entitled to
any direct or indirect compensation for services performed
hereunder.
(c) Expenses The Consultant shall be responsible for any and all
expenses incurred during the term of this agreement.
4. Termination of Consulting Relationship
(a) By the Company or the Consultant At any time, either the
Company or the Consultant may terminate, without liability, the
Consulting Period for any reason, with or without cause, by
giving 10 days advance written notice to the other party. If the
Consultant terminates its consulting relationship with the
Company pursuant to this Section 4(a), the Company shall have the
option, in its complete discretion, to terminate Consultant
immediately without the running of any notice period. The Company
shall pay Consultant the compensation to which the Consultant is
entitled pursuant to Section 3(a) through the end of the
Consulting Period, and thereafter all obligations of the Company
shall terminate.
(b) Termination Due to Bankruptcy. Receivership The Consulting
Period shall terminate and the Company's obligations hereunder
(including the obligation to pay Consultant compensation under
Section 3(a)) shall cease upon the occurrence of. (i) the
appointment of a receiver, liquidator, or trustee for the Company
by decree of competent authority in connection with any
adjudication or determination by such authority that the Company
is bankrupt or insolvent; (ii) the filing by the Company of a
petition in voluntary bankruptcy, the making of an assignment for
the benefit of its creditors, or the entering into of a
composition with its creditors; or (iii) any formal action of the
Board to terminate the Company's existence or otherwise to wind
up the Company's affairs.
5. Termination Obligations
(a) Consultant hereby acknowledges and agrees that all property,
including, without limitation, all books, manuals, records,
reports, notes, contracts, lists, blueprints, and other
documents, or materials, or copies thereof, Proprietary
Information (as defined below), and equipment furnished to or
prepared by Consultant or its Agents in the course of or incident
to its rendering of services to the Company, including, without
limitation, records and any other materials pertaining to
Invention Ideas (as defined below), belong to the Company and
shall be promptly returned to the Company upon termination of the
Consulting Period. Following termination, neither Consultant nor
any of its Agents will not retain any written or other tangible
material containing any Proprietary Information.
(b) The representations and warranties contained herein and
Consultant's obligations
under Sections 5, 6, and 7 shall survive termination of the
Consulting Period and the expiration of this Agreement.
6. Proprietary Information
(a) Define "Proprietary Information" is all information and any
idea in whatever form, tangible or intangible, pertaining in any
manner to the business of the Company or any Affiliated Company,
or to its clients, consultants, or business associates, unless:
(i) the information is or becomes publicly known through lawful
means; (ii) the information was rightfully in Consultant's or its
Agents' possession or part of its general knowledge prior to the
Consulting Period; or (iii) the information is disclosed to
Consultant or its Agents without confidential or proprietary
restrictions by a third party who rightfully possesses the
information (without confidential or proprietary restriction) and
did not learn of it, directly or indirectly, from the Company.
(b) General Restrictions on Use Consultant agrees to hold all
Proprietary Information in strict confidence and trust for the
sole benefit of the Company and not to, directly or indirectly,
disclose, use, copy, publish, summarize, or remove from Company's
premises any Proprietary Information (or remove from the premises
any other property of the Company), except (i) during the
Consulting Period to the extent necessary to carry out
Consultant's responsibilities under this Agreement, and (ii)
after termination of the Consulting Period as specifically
authorized in writing by the Company.
(c) Interference with Business: Competitive Activities
Consultant acknowledges that the pursuit of the activities
forbidden by this Section 6( c) would necessarily involve the use
or disclosure of Proprietary Information in breach of Section
6(b), but that proof of such breach would be extremely difficult.
To forestall such disclosure, use, and breach, and in
consideration of retaining Consultant under this Agreement,
Consultant agrees that for a period of one (1) year after
termination of the Consulting Period, it shall not, for itself or
any third party, directly or indirectly (i) divert or attempt to
divert from the Company (or any Affiliated Company) any business
of any kind in which it is engaged, including, without
limitation, the solicitation of or interference with any of its
suppliers or customers, (ii) employ, solicit for employment, or
recommend for employment any person employed by the Company, or
by any Affiliated Company, during the Consulting Period and for a
period of one (1) year thereafter, or (iii) engage in any
business activity that is or may be competitive with the Company
or any Affiliated Company.
(d) Remedies Nothing in this Section 6 is intended to limit any
remedy of the Company under the Florida Uniform Trade Secrets
Act, or otherwise available under law.
7. Intellectual Property, Inventions and Ideas
(a) Defined, Statutory Notice The term "Invention Ideas" means
any and all ideas, processes, trademarks, service marks,
inventions, technology, computer programs, original works of
authorship, designs, formulas, discoveries, patents, copyrights,
and all improvements, rights, and claims related to the foregoing
that are conceived, developed, or reduced to practice by the
Consultant alone or with others except to the extent that
applicable Florida laws, codes and statutes lawfully prohibits
the assignment of rights in such ideas, processes, inventions,
etc. State of Florida statutes provide for;
Any provision in an employment agreement which provides that an
employee shall assign, or offer to assign, any of his or her
rights in an invention to his or her employer shall not apply to
an invention that the employee developed entirely on his or her
own time without using the employer's equipment, supplies,
facilities, or trade secret information except for those
inventions that either:
(1) Relate at the time of conception or reduction to practice of
the invention to the employer's business, or actual or
demonstrably anticipated research or development of the employer.
(2) Result from any work performed by the employee for the
employer.
(b) Disclosure Consultant agrees to maintain adequate and current
written records on the development of all Invention Ideas and to
disclose promptly to the Company all Invention Ideas and relevant
records, which records will remain the sole property of the
Company. Consultant further agrees that all information and
records pertaining to any idea, process, trademark, service xxxx,
invention, technology, computer program, original work of
authorship, design, formula, discovery, patent, or copyright that
Consultant does not believe to be an Invention Idea, but is
conceived, developed; or reduced to practice by Consultant (alone
or with others) during the Consulting Period or during the one
year period following termination of the Consulting Period, shall
be promptly disclosed to the Company (such disclosure to be
received in confidence). The Company shall examine such
information to determine if in fact the idea, process, or
invention, etc., is an Invention Idea subject to this Agreement.
(c) Assignment Consultant agrees to assign to the Company,
without further consideration, its entire right, title, and
interest (throughout the United States and in all foreign
countries), free and clear of all liens and encumbrances, in and
to each Invention Idea, which shall be the sole property of the
Company, whether or not patentable. In the event any Invention
Idea shall be deemed by the Company to be patentable or otherwise
registerable, Consultant shall assist the Company (at its
expense) in obtaining letters patent or other applicable
registrations thereon and shall execute all documents and do all
other things (including testifying at the Company's expense)
necessary or proper to obtain letters patent or other applicable
registrations thereon and to vest the Company, or any Affiliated
Company specified by the Board, with full title thereto. Should
the Company be unable to secure Consultant's signature on any
document necessary to apply for, prosecute, obtain, or enforce
any patent, copyright, or other right or protection relating to
any Invention Idea, whether due to Consultant's mental or
physical incapacity or any other cause, Consultant hereby
irrevocably designates and appoints Company and each of its duly
authorized officers and agents as Consultant's agent and attorney
in fact, to act for and in Consultant's behalf and stead and to
execute and file any such document, and to do all other lawfully
permitted acts to further the prosecution, issuance, and
enforcement of patents, copyrights, or other rights or
protections with the same force and effect as if executed and
delivered by Consultant.
(d) Exclusions Consultant acknowledges that there are no ideas,
processes, trademarks, service marks, technology, computer
programs, original works of authorship, designs, formulas,
inventions, discoveries, patents, copyrights, or improvements to
the foregoing that it desires to exclude from the operation of
this Agreement. To the best of Consultant's knowledge, there is
no existing contract in conflict with this Agreement or any other
contract to assign ideas, processes, trademarks, service marks,
inventions, technology, computer programs, original works of
authorship, designs, formulas, discoveries, patents, or
copyrights that is now in existence between Consultant and any
other person or entity.
(e) Post-Termination Period Because of the difficulty of
establishing when any idea, process, invention, etc., is first
conceived or developed by Consultant, or whether it results from
access to Proprietary Information or the Company's equipment,
facilities, and data, Consultant agrees that any idea, process,
trademark, service xxxx, technology, computer program, original
work of authorship, design, formula, invention, discovery,
patent, copyright, or any improvement, rights, or claims related
to the foregoing shall be presumed to be an Invention Idea if it
is conceived, developed, used, sold, exploited, or reduced to
practice by Consultant or with the aid of Consultant within one
(I) year after termination of the Consulting Period. Consultant
can rebut the above presumption if it proves that the invention,
idea, process, etc., (i) was first conceived or developed after
termination of the Consulting Period, (ii) was conceived or
developed entirely on Consultant's own time without using the
Company's equipment, supplies, facilities, or Proprietary
Information, and (iii) did not result from any work performed by
Consultant for the Company. Nothing in this Agreement is intended
to expand the scope of protection provided Consultant by State of
Florida Code and Statutes.
8. Assignment: Successors and Assigns
Consultant agrees that it will not assign, sell, transfer,
delegate or otherwise dispose of, whether voluntarily or
involuntarily, or by operation of law, any rights or obligations
under this Agreement, nor shall Consultant's rights be subject to
encumbrance or the claims of creditors. Any purported assignment,
transfer, or delegation shall be null and void. Nothing in this
Agreement shall prevent the consolidation of the Company with, or
its merger into, any other corporation, or the sale by the
Company of all or substantially all of its properties or assets,
or the assignment by the Company of this Agreement and the
performance of its obligations hereunder to any successor in
interest or any Affiliated Company. Subject to the foregoing,
this Agreement shall be binding upon and shall inure to the
benefit of the parties and their respective heirs, legal
representatives, successors, and permitted assigns, and shall not
benefit any person or entity other than those enumerated above.
9. Notices
All notices or other communications required or permitted
hereunder shall be made in writing and shall be deemed to have
been duly given if delivered by hand or mailed, postage prepaid,
by certified or registered mail, return receipt requested, and
addressed to the Company at:
TotalMed Systems, Inc.
0000 X.X. Xxxxxxx Xxxx, Xxxxx 000 Xxxx, Xxxxx Xxxxxxxx 00000
or to the Consultant at:
Xxx X. Xxxxxxx
000 Xxxxxxxx Xx. Xxxxxxxx, XX 00000
Notice of change of address shall be effective only when done in
accordance with this Section.
10. Entire Agreement
The terms of this Agreement are intended by the parties to be in
the final expression of their agreement with respect to the
retention of Consultant by the Company and may not be
contradicted by evidence of any prior or contemporaneous
agreement. The parties further intend that this Agreement shall
constitute the complete and exclusive statement of its terms and
that no extrinsic evidence whatsoever may be introduced in any
judicial, administrative, or other legal proceeding involving
this Agreement.
II. Amendments, Waivers
This Agreement may not be modified, amended, or terminated except
by an instrument in writing, signed by a duly authorized
representative of the Company and the Consultant. By an
instrument in writing similarly executed, either party may waive
compliance by the other party with any provision of this
Agreement that such other party was or is obligated to comply
with or perform, provided, however, that such waiver shall not
operate as a waiver of, or estoppel with respect to, any other or
subsequent failure. No failure to exercise and no delay in
exercising any right, remedy, or power hereunder shall operate as
a waiver thereof, nor shall any single or partial exercise of any
right, remedy, or power hereunder preclude any other or further
exercise thereof or the exercise of any other right, remedy, or
power provided herein or by law or in equity.
12. Severability Enforcement
If any provision of this Agreement, or the application thereof to
any person, place, or circumstance, shall be held by a court of
competent jurisdiction to be invalid, unenforceable, or void, the
remainder of this Agreement and such provisions as applied to
other persons, places, and circumstances shall remain in full
force and effect. It is the intention of the parties that the
covenants contained in Sections 6 and 7 shall be enforced to the
greatest extent (but to no greater extent) in time, area, and
degree of participation as is permitted by the law of that
jurisdiction whose law is found to be applicable to any acts
allegedly in breach of these covenants. It being the purpose of
this Agreement to govern competition by Consultant anywhere
throughout the world, these covenants shall be governed by and
construed according to that law (from among those jurisdictions
arguably applicable to this Agreement and those in which a breach
of this Agreement is alleged to have occurred or to be
threatened) which best gives them effect.
13 Governing- Law
Subject to Section 12, the validity, interpretation,
enforceability, and performance of this Agreement shall be
governed by and construed in accordance with the laws of the
State of Florida.
14. Remedies
(a) Injunctive Relief The parties agree that in the event of any
breach or threatened breach of any of the covenants in Sections 6
or 7, the damage or imminent damage to the value and the goodwill
of the Company's business will be irreparable and extremely
difficult to estimate, making any remedy at law or in damages
inadequate. Accordingly, the parties agree that the Company shall
be entitled to injunctive relief against Consultant in the event
of any breach or threatened breach of any such provisions by
Consultant, in addition to any other relief (including damages)
available to the Company under this Agreement or under law. It is
agreed that any other relief (including damages) shall not exceed
25% of all monies paid to the Consultant up to the date of final
injunction.
(b) Exclusive Both parties agree that this Agreement shall
provide the exclusive remedies for any breach by the Company of
its terms.
15. Independent Contractor
The Consultant and its Agents shall operate at all times as an
independent contractor of the Company. This Agreement does not
authorize the Consultant or any of its Agents to act for the
Company as its agent or to make commitments on behalf of the
Company. The Company shall not withhold payroll taxes, and
neither Consultant nor any of its Agents shall not be covered by
health, life, disability, or worker's compensation insurance of
the Company.
The parties have duly executed this Agreement this 9th Day of May
2005.
TOTALMED SYSTEMS, Inc.
/s/ Xxxxx X. Xxxxxx
Title: President
CONSULTANT
Title: Independent Contractor
By: /s/ Xxx Xxxxxxx
EXHIBIT A
Services to be Provided:
The Consultant shall provide to the Company public relations
services when needed as directed by the Company. The Company
anticipates that the need for public relations services will
greatly increase the 2nd quarter of this year and incrementally
increase throughout the period of this agreement.
* Private Placements
* Start-Ups
* Restructuring currently operating companies
* Leveraged buy-outs of operating companies
* Business consulting to currently operating public
and private companies
EXHIBIT B
Acknowledgement and Inventions Assignment
I hereby:
1. Acknowledge that I am bound by the terms of its agreement with
TotalMed Systems, Inc. ("Company") to keep confidential certain
information that may be disclosed to me before or during my
service to the Company and acknowledge that under the terms of my
agreement, I am bound and obligated by terms equally or more
restrictive of such terms regarding the confidentiality of
Company's information; and
2. Agree to assign to the Company, without further consideration,
all of my entire right, title, and interest (throughout the
United States and in all foreign countries), free and clear of
all liens and encumbrances, in any and all intellectual property,
including but not limited to, any and all trademarks,
copyrightable materials, inventions, technology, computer
programs, original works of authorship, designs, formulas, and
discoveries, created by me alone or working with others while
providing services to benefit the Company pursuant to the
agreement between me and the Company, which shall be the sole
property of the Company, whether or not patentable, except to the
extent that Florida Labor Code Section 2870 lawfully prohibits
the assignment of rights in such ideas, processes, inventions,
etc.
Any provision in an employment agreement which provides that an
employee shall assign, or offer to assign, any of his or her
rights in an invention to his or her employer shall not apply to
an invention that the employee developed entirely on his or her
own time without using the employer's equipment, supplies,
facilities, or trade secret information except for those
inventions that either:
(1) Relate at the time of conception or reduction to practice of
the invention to the employer's business, or actual or
demonstrably anticipated research or development of the employer.
(2) Result from any work performed by the employee for the
employer.
In the event any such intellectual property shall be deemed by
Company to be patentable or otherwise registerable, I shall
assist Company (at its expense) in obtaining letters patent or
other applicable registrations thereon and shall execute all
documents and do all other things (including testifying at the
Company's expense) necessary or proper to obtain letters patent
or other applicable registrations thereon and to vest the
Company, or Company specified by the Company, with full title
thereto. Should the Company be unable to secure my signature on
any document necessary to apply for, prosecute, obtain, or
enforce any patent, copyright, or other right or protection
relating to any Invention Idea, whether due to my mental or
physical incapacity or any other cause, I hereby irrevocably
designate and appoint Company and each of its duly authorized
officers and agents as my agent and attorney in fact, to act for
and in my behalf and stead and to execute and file any such
document, and to do all other lawfully permitted acts to further
the prosecution, issuance, and enforcement of patents,
copyrights, or other rights or protections with the same force
and effect as if executed and delivered by me.
Signed:
Name: /s/ Xxx Xxxxxxx
Date: May 9, 2005
