CONSULTING AGREEMENT
Exhibit
10.1
THIS CONSULTING AGREEMENT (the
“Agreement”)
is made and entered into effective as of May 1, 2019 (the
“Effective
Date”) between Super
League Gaming, Inc., a Delaware corporation with a principal place
of business located at 0000 Xxxxxxxx Xxx., Xxxxx Xxxxxx, XX 00000
(the “Company”),
and Xxxx Xxxx (the “Consultant”)(Company
and Consultant
are collectively referred to herein as
the “Parties”)
who agree as follows.
A. The
Company desires to retain the services of the Consultant as a
consultant to the Company from the Effective
Date.
B. The
Consultant is willing to be retained by the Company on the terms
and subject to the conditions set forth in this
Agreement.
1. Services.
The Consultant shall perform the services set forth in the
Statement of Work attached hereto as Exhibit A
(the “Services”).
The Consultant shall render the Services.
2. Terms
of Engagement.
2.1 Definitions.
For purposes of this Agreement, the following terms shall have the
following meanings:
(a) “Accrued
Expenses” shall mean any
appropriate business expenses incurred by the Consultant in
connection with the Services provided hereunder, which have been
approved by the Company in writing, all to the extent unpaid or
unreimbursed on the date of termination.
(b) “Confidential
Information” shall mean
all information related to any aspect of the Company’s
business which is either information not known by actual or
potential competitors of the Company or is proprietary information
of the Company, whether of a technical nature or otherwise.
Confidential Information is to be broadly defined and includes, but
is not limited to, trade secrets, copyrights, ideas, techniques,
know-how, inventions (whether patentable or not), and/or any other
information of any type relating to firmware, computer programs,
computer code, software source documents, software design and
architecture, computer hardware, circuits, silicon chip technology,
testing procedures, product requirements and specifications,
devices, designs, configurations, documentation, recorded data,
schematics, master works, master databases, algorithms, flow
charts, formulae, works of authorship, mechanisms, research,
manufacture, improvements, assembly, installation, intellectual
property, including patents and patent applications, business
plans, past or future financing, marketing, forecasts, pricing,
customers, the salaries, duties, qualifications, performance
levels, and terms of compensation of other employees, and/or cost
or other financial data concerning any of the foregoing or the
Company and its operations generally.
(c) “Inventions”
shall mean any and all products, inventions, innovations, ideas,
discoveries, designs, schematics, mask works, data, formulas,
software, databases, algorithms, programs, trade secrets, works of
authorship, assays, developmental or experimental work, methods,
processes, techniques, improvements, and related know-how and which
are made by Consultant, alone or in combination with others, either
on behalf of the Company under this Agreement, or with the use of
or as a result of access to Confidential Information or property,
including but not limited to any derivative work which constitutes
an improvement or modification to any tangible form of Confidential
Information, such as any design, drawing, or product that embodies
Confidential Information, and whether or not patentable,
copyrightable, or qualified for other intellectual property
protection.
2.2 Independent
Contractor. The Consultant is
an independent contractor and not an employee of the Company. The
Consultant has no authority to obligate or bind the Company by
contract or otherwise. The Consultant will not be eligible for any
employee benefits, and the Company will not make deductions from
the Consultant’s fees for taxes (except as otherwise required
by applicable law or regulation). Any taxes imposed on the
Consultant due to activities performed hereunder will be the sole
responsibility of the Consultant.
2.3 Term.
This Agreement shall continue through December 31, 2019 and will be
extended upon mutual agreement of the Parties.
2.4 Termination
of Consultant. Upon termination
of the Consultant, the Consultant shall promptly return to the
Company, without limitation, all Company information supplied to
the Consultant pursuant to this Agreement and the Company shall pay
the Consultant Accrued Expenses, if any.
3. Compensation
and Expenses.
3.1 Compensation.
In consideration of the Services to be provided, the Consultant
shall be compensated as set forth in Exhibit A hereto.
3.2 Expense
Reimbursement. The Company
shall reimburse the Consultant for all reasonable, ordinary and
necessary out-of-pocket travel and other expenses incurred by the
Consultant in conjunction with his services to the Company, which
expenses have been approved in advance in writing by the Company.
The Company will reimburse such expenses within thirty (30) days
after Consultant has provided to the Company, in form and substance
reasonably satisfactory to the Company, appropriate documentation
evidencing such expenses.
4. Confidentiality
Obligation.
4.1 The
Consultant shall hold all Company Confidential Information in
confidence and may not disclose, use, copy, publish, summarize, or
remove from the premises of the Company any Confidential
Information, except as necessary to carry out the
Consultant’s assigned responsibilities as a Company
Consultant. In the event the Consultant is required to disclose any
Confidential Information pursuant to law or government regulation,
the Consultant must promptly notify the Company in order to allow
the Company the maximum time to obtain protective or confidential
treatment of the Confidential Information before it is
disclosed.
4.2 Confidential
Information subject to Section 5.1 does not include information
that: (i) is or later becomes available to the public through no
breach of this Agreement by the Consultant; (ii) is obtained by the
Consultant from a third party who had the legal right to disclose
the information to the Consultant; (iii) is already in the
possession of the Consultant on the date this Agreement becomes
effective; or (iv) was developed by the Consultant independent of
the performance of the Services.
5. Information
of Others. The Consultant shall
safeguard and keep confidential the proprietary information of
customers, vendors, consultants, and other parties with which the
Company does business to the same extent as if it were Company
Confidential Information. The Consultant may not use or disclose to
the Company any confidential, trade secret, or other proprietary
information or material of any previous employer or other person,
and will not bring onto the Company’s premises any
unpublished document or any other property belonging to any former
or current employer without the written consent of that former or
current employer.
6. Company
Property. All papers, records,
data, notes, drawings, files, documents, samples, devices,
products, equipment, and other materials, including copies and in
whatever form, relating to the business of the Company that the
Consultant possesses or creates as a result of the
Consultant’s service to the Company, whether or not
confidential, are the sole and exclusive property of the Company.
In the event of the termination of the Consultant’s service
to the Company, the Consultant will promptly deliver all such
materials to the Company and will sign and deliver to the Company
the “Termination Certificate” attached hereto as
Exhibit
B.
7. Ownership
of Inventions. Any and all
Inventions shall be the property of the Company, and any Inventions
which are made by Consultant in performance of the Services under
this Agreement, to the maximum extent permitted by law, shall be
“works made for hire.” The Consultant hereby assigns
and agrees to assign to the Company or its designee, without
further consideration, the Consultant’s entire right, title,
and interest in and to all Inventions, including all rights to
obtain, register, perfect, and enforce patents, copyrights, mask
work rights, and other intellectual property protection for
Inventions. The Consultant shall disclose promptly and in writing
to an individual designated by the Company or to the
Consultant’s immediate supervisor all Inventions which the
Consultant has made or reduced to practice. During the term of the
Consultant’s services to the Company hereunder and for five
years after, the Consultant shall assist the Company (at its
expense) to obtain and enforce patents, copyrights, and other forms
of intellectual property protection on
Inventions.
8. Indemnification.
The Company shall defend,
indemnify and hold harmless the Consultant from and against all
claims, losses, liabilities, damages, expenses and costs (including
reasonable attorney’s fees and costs of litigation regardless
of outcome) which result from any breach or alleged breach by the
Company of any provision contained in this Agreement.
9. Miscellaneous.
9.1 Waiver.
The waiver of the breach of any provision of this Agreement shall
not operate or be construed as a waiver of any subsequent breach of
the same or other provision hereof.
9.2 Notices.
All notices and other communications under this Agreement shall be
in writing and shall be given by personal or courier delivery,
facsimile or first class mail, certified or registered with return
receipt requested, and shall be deemed to have been duly given upon
receipt if personally delivered or delivered by courier, on the
date of transmission if transmitted by facsimile, or three days
after mailing if mailed, to the addresses of the Company and the
Consultant contained in the records of the Company at the time of
such notice. Any party may Change such party’s address for
notices by notice duly given pursuant to this Section
9.2.
9.3 Headings.
The section headings used in this Agreement are intended for
convenience of reference and shall not by themselves determine the
construction or interpretation of any provision of this
Agreement.
9.4 Governing
Law. This Agreement shall be
governed by and construed in accordance with the laws of the State
of California.
9.5 Counterparts.
This Agreement may be executed in one or more counterparts, all of
which taken together shall constitute one and the same
Agreement.
9.6 Enforcement.
If any portion of this Agreement is determined to be invalid or
unenforceable, such portion shall be adjusted, rather than voided,
to achieve the intent of the parties to the extent possible, and
the remainder shall be enforced to the maximum extent
possible.
9.7 Survival. Sections 4
through 9 shall survive termination or expiration of this
Agreement.
9.8 Modifications. All
modifications to this Agreement must be in writing and signed by
each of the parties hereto.
IN
WITNESS WHEREOF, the Parties have executed this Consulting
Agreement as of the date first written above.
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By: /s/ Xxx
Xxxx
Xxx
Xxxx
President
& CEO
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XXXX
XXXX
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EXHIBIT A
STATEMENT OF WORK
1.
SCOPE
OF WORK
Strategic advice
and planning directly with Xxx Xxxx, CEO. Consultant will provide
1.5 days of consulting services per month.
2.
COMPENSATION
$7,500
per month, payable net 30 from invoice date.
3.
TERM
The
initial term shall run from April 1, 2019 through December 31,
2019. The consulting agreement shall be extended upon mutual
agreement of the parties.
EXHIBIT B
TERMINATION CERTIFICATE
This is to certify that Consultant does not have
in its possession, nor has Consultant failed to return, any papers,
records, data, notes, drawings, files, documents, samples, devices,
products, equipment, designs, computer programs, and other
materials, including reproductions of any of the aforementioned
items, belonging to Super League Gaming,
Inc., its subsidiaries,
affiliates, successors, or assigns (together, the
“Company”).
The
Consultant further certifies that it has complied with all the
terms of the Company’s Consulting Agreement signed by it,
including the reporting of any Inventions (as defined therein)
conceived or made by Consultant (solely or jointly with others)
covered by that agreement.
Consultant
further agrees that, in compliance with the Consulting Agreement,
it will hold in confidence and will not disclose, use, copy,
publish, or summarize any Confidential Information (as defined in
the Consulting Agreement) of the Company or of any of its
customers, vendors, consultants, and other parties with which it
does business.
Date:_______________________________
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Signature
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_____________________________________
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