Exhibit 6.23
CONSULTING AGREEMENT
AGREEMENT dated as of March 5, 2003 by and between Biofield Corp., a Delaware
corporation, trading as Biofield Corp. (OTC BB: BZET) with offices located at
0000 Xxxx Xxxxx Xxxxx Xxx. X, Xxxxxxxxxx, XX. 00000 (the "Company") and Xxxxxxx
Xxxxxxxxx and Xxxxxxxx Xxxxxx, individuals, with offices located at 0000 Xxxx
Xxxxxx, Xxxxx 0000, Xxxxxx, XX 00000 (the "Consultants").
WITNESSETH
WHEREAS, the Consultants are engaged in the business of providing
business and financial consulting services, with particular expertise in
advising businesses in areas of business development, strategic alliances and
general business matters; and
WHEREAS, the Company desires to engage Consultants to render consulting
services to the Company; and
WHEREAS, the Company and the Consultants desire to set forth the terms
and conditions of this Agreement with respect to the Company's engagement of
Consultants.
NOW, THEREFORE, in consideration of the mutual covenants of the parties
which are hereinafter set forth and for other good and valuable consideration,
the receipt and sufficiency of which is hereby acknowledged,
IT IS AGREED:
1. Recitals Adopted. The parties hereto adopt as part of this
Agreement each of the recitals contained above in the WHEREAS clauses, and agree
that such recitals shall be binding upon the parties hereto by way of contract
and not merely by way of recital or inducement; and such clauses are hereby
confirmed and ratified as being true and accurate by each party as to itself.
2. Engagement.
A. Upon the terms and conditions which are hereinafter
set forth, the Company hereby retains the Consultants as a business and
financial consultant to render advice, consultation, information and services to
the Company and its officers and directors regarding general financial and
business matters (the "Consulting Services") including, but not limited to, the
following:
i. Marketing strategy, strategies for
increasing market share;
ii. Product promotion;
iii. Business development and business
advertising;
iv. Strategic alliances;
v. Fiscal controls, strategies for achieving
operational efficiency, improving cash flow,
and asset based debt financing;
vi. Banking methods and systems; and
vii. Such other matters as Company shall from
time to time request.
B. The Consultants shall not be required to devote any
minimum number of weeks, days, or hours to the affairs of the Company during the
term of this Agreement; provided, however that the Consultants devote such time,
attention and energies to the business of the Company, as the Company reasonably
determines.
3. Term.
A. The term of this Agreement shall commence as of March
5, 2003 and shall continue for a period of twelve (12) months until March 5,
2004 (the "Term"). The Company shall have the right to terminate the Consultants
for Cause as defined in Article "10" of this Agreement.
B. This Agreement may be extended upon agreement by the
mutual agreement of the parties, unless or until the Agreement is previously
terminated.
4. Compensation.
A. As compensation for its services pursuant to this
Agreement, the Consultants shall receive an engagement fee of one hundred
twenty-five thousand ($125,000) dollars worth [calculated at the average opening
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price during the preceding 30 days in the OTC market, as reported in the
electronic edition of The New York Times] of free trading shares of common stock
of the Company payable as follows:
i. Due on the date hereof, the Certificates
shall be issued to the Consultants in the
following manner:
Xxxxxxx Xxxxxxxxx will receive sixty-two
thousand five hundred ($62,500) dollars
worth of shares of Company's common stock
which shall be unrestricted after
registration thereof.
Xxxxxxxx Xxxxxx will receive sixty-two
thousand five hundred ($62,500) dollars
worth of shares of Company's common stock
which shall be unrestricted after
registration thereof.
Securities shall be issued to Consultant in
accordance with a mutually acceptable plan
of issuance as to relieve securities or
Consultant from restrictions upon
transferability of shares in compliance with
applicable registration provisions or
exemptions
B. The Company covenants and agrees to file a
Registration Statement under an S-8 registration covering the shares of Common
Stock that are issued pursuant to this Agreement and shall use its best
reasonable efforts to register such shares thereunder. At the Consultants'
option, the preparation of such Registration Statement may be undertaken by
counsel to the Consultants who shall be paid a fee for its services by the
Company, not to exceed five thousand ($5,000) dollars, promptly after the
Company receives at least two million ($2,000,000) in additional financing; and
if such option is not exercised, the preparation of such Registration Statement
will be undertaken by the Company's counsel promptly after receipt of such
financing. All expenses in connection with filing any registration statement
under this Article "4" (and any registration or qualification under the
securities or "Blue Sky" laws of states in which the offering will be made under
such registration statement) shall be borne in full by the Company.
5. Costs and Expenses. The Consultants shall be responsible for
all expenses that the Consultants may incur in performing the Consulting
Services pursuant to this Agreement including, but not limited to, travel
expenses, third party expenses, copy and mailing expenses unless otherwise
pre-approved in writing by Company.
6. Due Diligence. The Company shall supply and deliver to the
Consultants all information relating to the Company's business as may be
reasonably requested by the Consultants to enable the Consultants to make an
assessment of the Company and its business prospects and provide the Consulting
Services.
7. Best Efforts Basis. The Consultants agree that it will, at all
times, faithfully and in a professional manner perform all of the duties that
may be reasonably required of, and from, the Consultants pursuant to the terms
of this Agreement. The Consultants does not guarantee that its efforts will have
any impact upon the Company's business or that there will be any specific result
or improvement from the Consultants' efforts.
8. Company's Right to Approve Transactions.
A. The Company expressly retains the right to approve,
in its sole discretion, each and every transaction introduced by the Consultants
that involves the Company as a party to any agreement. The Consultants and the
Company mutually agree that the Consultants are not authorized to enter into
agreements on behalf of the Company. It is mutually understood and agreed that
the Company is not obligated to accept any recommendations or close any
transactions submitted by the Consultants.
B. The Consultants agree to provide the Company for
approval, in its sole and absolute discretion, a reasonable time in advance, any
documents which are intended to be utilized by the Consultants with respect to
its services pursuant to this Agreement, or otherwise. Company will carefully
and thoroughly review all such material including without limitation material
provided by Company to Consultants and intended to be used by Consultants, as to
the accuracy of the contents thereof and will promptly notify Consultants in
writing of any inaccuracies or changes to be made with respect thereto.
9. Non-Exclusive Services. The Company acknowledges that the
Consultants are currently providing services of the same or similar nature to
other parties and the Company agrees that the Consultants are not prevented or
barred from rendering services of the same nature or a similar nature to any
other individual or entity. The Consultants understands and agree that the
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Company shall not be prevented or barred from retaining other persons or
entities to provide services of the same or similar nature as those provided by
the Consultants. The Consultants will take reasonable steps to determine and to
advise the Company of its position with respect to any activity, employment,
business arrangement or potential conflict of interest which may be relevant to
this Agreement, but Consultants shall not be obligated to conduct an exhaustive
review of its activities or those of its clients to determine whether or not
such a conflict exists.
10. Cause. For purposes of this Agreement, the term "Cause" shall
be limited to: (i) willful malfeasance or gross negligence; (ii) the
Consultants' fraud, misappropriation or embezzlement; (iii) the Consultants'
failure to perform such duties which are reasonably assigned by the Board of
Directors of the Company, provided such duties are customary and appropriate for
its consulting obligations to the Company; or (iv) the Consultants' default,
violation of, or failure to perform any provision of this Agreement; provided
however that any termination shall be subject to receipt of written notice to
the Consultants from the Company specifying the failure or default and the
Consultants failing to cure such default within ten (10) days after receipt of
such notice. Such termination of the Consultants shall not constitute a breach
of this Agreement by the Company and the Company's sole obligation to the
Consultants shall be to pay the Consultants the amount of any compensation then
due to the Consultants through the date of termination including, but not
limited to, any Common Stock due pursuant to Article "4" of this Agreement.
11. Representations,Warrants and Covenants of the Consultants. The
Consultants represents, warrants and covenants to the Company as follows:
A. The Consultants has the full authority, right, power
and legal capacity to enter into this Agreement and to consummate the
transactions which are provided for herein.
B. The business and operations of the Consultants have
been and are being conducted in all material respects in accordance with all
applicable laws, rules and regulations of all authorities which affect the
Consultants or its properties, assets, businesses or prospects. The performance
of this Agreement shall not result in any breach of, or constitute a default
under, or result in the imposition of any lien or encumbrance upon any property
of the Consultants or cause an acceleration under any arrangement, agreement or
other instrument to which the Consultants are parties or by which any of its
assets are bound. The Consultants has performed in all respects all of its
obligations which are, as of the date of this Agreement, required to be
performed by it pursuant to the terms of any such agreement, contract or
commitment.
C. The execution, delivery and performance of this
Agreement: (i) does not violate any agreement or undertaking to which the
Consultants are parties or by which the Consultants may be bound and (ii) shall
not result in the imposition of any restrictions or obligations upon the
Consultants other than the restrictions and obligations imposed by this
Agreement.
D. The execution and delivery by the Consultants of this
Agreement and the performance by the Consultants of its obligations hereunder
and thereunder will not violate any provision of law, any order of any court or
other agency of government, and will not result in a material breach of or
constitute (with due notice or lapse of time or both) a material default under
any provision of any agreement or other instrument to which the Consultants, or
any of its properties or assets, is bound.
E. The Consultants has not entered into and are not
subject to any agreement, including, but not limited, to any employment,
noncompete, confidentiality or work product agreement which would (i) prohibit
the execution of this Agreement, (ii) prohibit its engagement as a Consultants
by the Company, or (iii) affect any of the provisions of, or its obligations
pursuant to this Agreement.
F. If, during the Term, any event occurs or any event
known to the Consultants relating to or affecting the Consultant shall occur as
a result of which (i) any provision of this Article "11" of this Agreement at
that time shall include an untrue statement of a fact, or (ii) this Article "11"
of this Agreement shall omit to state any fact necessary to make the statements
herein, in light of the circumstances under which they were made, not
misleading, the Consultants will immediately notify the Company pursuant to
Paragraph "C" of Article "20" of this Agreement.
G. The receipt of the Common Stock by the Consultants
are for the Consultants' own account, is for investment purposes only, and is
not view to, nor for offer or sale in connection with, the distribution of the
Common Stock. The Consultants are not participating and does not have a
participation in any such distribution or the underwriting of any such
distribution.
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H. The Consultants have no present intention of creating
a market or participating or assisting in the creation of a market or in the
promotion of a market for any securities of the Company.
I. The Consultants have no present intention of selling,
or otherwise disposing of the Common Stock.
J. The Consultants are aware that no federal or state
governmental authority has made any finding or determination as to the fairness
of an investment in the Common Stock, or any recommendation or endorsement with
respect thereto.
K. The Consultants are able to bear the economic risk of
the investment in the Common Stock for an indefinite period of time, including
the risk of total loss of such investment and Consultants recognize that an
investment in the Common Stock involves a high degree of risk. Consultants
understand that the Common Stock has not been registered under the Securities
Act of 1933, as amended (the "Securities Act") or the securities laws of any
state and, therefore, cannot be sold unless they subsequently are registered
under the Securities Act and any applicable state securities laws or exemptions
from registration thereunder are available. The Consultants further understand
that only the Company can take action to register the Common Stock.
L. The Consultants are "accredited investors" as that
term is defined in Rule 501(a) of Regulation D promulgated under the Securities
Act.
M. The Consultants have such knowledge and experience in
financial, investing and business matters as to be capable of evaluating the
risks and merits of an investment in the Common Stock and protecting the
Consultants' interests in connection with an investment in the Common Stock.
N. The Consultants were not contacted by the Company or
its representatives for the purpose of investing in any securities of the
Company issued hereby through any advertisement, article, mass mailing, cold
call, notice or any other communication published in any newspaper, magazine, or
similar media or broadcast over television or radio, or any seminar or meeting
whose attendees were invited by any general advertising.
O. The Consultants has had access to and an opportunity
to inspect all relevant information relating to the Company sufficient to enable
the Consultants to evaluate the merits and risks of itheri receipt of the Common
Stock hereunder. The Consultants also have had the opportunity to ask questions
of officers of the Company and have received satisfactory answers respecting,
and have obtained such additional information as the Consultants have desired
regarding, the business, financial condition and affairs of the Company.
P. It shall not be a defense to a suit for damages for
any misrepresentation or breach of covenant or warranty that the Company knew or
had reason to know that any representation, warranty or covenant in this
Agreement or furnished or to be furnished to the Company contained untrue
statements.
Q. No representation or warranty of the Consultants
which is contained in this Agreement, or in a writing furnished or to be
furnished pursuant to this Agreement, contains or shall contain any untrue
statement of a material fact, omits or shall omit to state any material fact
which is required to make the statements which are contained herein or therein,
in light of the circumstances pursuant to which they were made, not misleading.
R. All representations, warranties and covenants made in
or in connection with this Agreement shall continue in full force and effect
during and after the Term of this Agreement, it being agreed and understood that
each of such representations, warranties and covenants is of the essence of this
Agreement and the same shall be binding upon the Consultants and inure to the
Consultants, and their respective successors and assigns.
12. Representations, Warrants and Covenants of the Company. The
Company represents, warrants and covenants to the Consultants as follows:
A. The Company is a corporation duly organized, validly
existing and in good standing under the laws of the State of Delaware with all
requisite power and authority to carry on its business as presently conducted in
all jurisdictions where presently conducted, to enter into this Agreement and to
the transactions which are contemplated herein.
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B. The Company has the full authority, right, power and
legal capacity to enter into this Agreement and to consummate the transactions
which are provided for herein. The execution of this Agreement by the Company
and its delivery to the Consultants, and the consummation by it of the
transactions which are contemplated herein have been duly approved and
authorized by all necessary action by the Company's Board of Directors and no
further authorization shall be necessary on the part of the Company for the
performance and consummation by the Company of the transactions which are
contemplated by this Agreement.
C. The business and operations of the Company have been
and are being conducted in all material respects in accordance with all
applicable laws, rules and regulations of all authorities which affect the
Company or its properties, assets, businesses or prospects. The performance of
this Agreement shall not result in any breach of, or constitute a default under,
or result in the imposition of any lien or encumbrance upon any property of the
Company or cause an acceleration under any arrangement, agreement or other
instrument to which the Company is a party or by which any of its assets are
bound. The Company has performed in all respects all of its obligations which
are, as of the date of this Agreement, required to be performed by it pursuant
to the terms of any such agreement, contract or commitment.
D. The execution, delivery and performance of this
Agreement: (i) does not violate any agreement or undertaking to which the
Company is a party or by which the Company may be bound and (ii) shall not
result in the imposition of any restrictions or obligations upon the Company
other than the restrictions and obligations imposed by this Agreement.
E. It shall not be a defense to a suit for damages for
any misrepresentation or breach of covenant or warranty that the Consultants
knew or had reason to know that any representation, warranty or covenant of the
Company in this Agreement or furnished or to be furnished to the Consultants
contained untrue statements.
F. No representation or warranty of the Company which is
contained in this Agreement, or in a writing furnished or to be furnished
pursuant to this Agreement, contains or shall contain any untrue statement of a
material fact, omits or shall omit to state any material fact which is required
to make the statements which are contained herein or therein, in light of the
circumstances pursuant to which they were made, not misleading.
G. All representations, warranties and covenants made in
or in connection with this Agreement shall continue in full force and effect
during and after the Term of this Agreement, it being agreed and understood that
each of such representations, warranties and covenants is of the essence of this
Agreement and the same shall be binding upon the Company and inure to the
Consultants, its successors and assigns.
13. Nondisclosure of Confidential Information.
A. As used in this Agreement, "Confidential Information"
means information which is presented to the Consultants by the Company or
developed, conceived or created by the Company, or disclosed to the Consultants
or known by or conceived or created by the Consultants during the Term, with
respect to the Company, its business or any of its products, processes, and
other services relating thereto relating to the past, present or future business
of the Company or any plans therefore, or relating to the past, present or
future business of a third party or plans therefore which are disclosed to the
Consultants. Confidential Information includes, but is not limited to, all
documentation, hardware and software relating thereto, and information and data
in written, graphic and/or machine readable form, products, processes and
services, whether or not patentable, trademarkable or copyrightable or otherwise
protectable, including, but not limited to, information with respect to
discoveries; know-how; ideas; computer programs, source codes and object codes;
designs; algorithms; processes and structures; product information; marketing
information; price lists; cost information; product contents and formulae;
manufacturing and production techniques and methods; research and development
information; lists of clients and vendors and other information relating
thereto; financial data and information; business plans and processes;
documentation with respect to any of the foregoing; and any other information of
the Company that the Company informs the Consultants or the Consultants should
know, by virtue of their position or the circumstances in which the Consultants
learned such other information, is to be kept confidential including, but not
limited to, any information acquired by the Consultants from any sources prior
to the commencement of the Consultants becoming consultants to the Company.
Confidential Information also includes similar information obtained by the
Company in confidence from its vendors, licensors, licensees, customers and/or
clients. Confidential Information may or may not be labeled as confidential.
B. Except as required in the performance of the
Consultants' duties as consultants, the Consultants will not, during or after
the Term, directly or indirectly, use any Confidential Information or
disseminate or disclose any Confidential Information to any person, firm,
corporation, association or other entity. The Consultants shall take all
reasonable measures and efforts to protect Confidential Information from any
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accidental, unauthorized or premature use, disclosure or destruction. The use of
such measures and efforts shall not constitute a defense if any of the
Confidential Information is not kept confidential in accordance with the terms
of this Agreement. The foregoing prohibition shall not apply to any Confidential
Information which: (i) was generally available to the public prior to such
disclosure; (ii) becomes publicly available through no act or omission of the
Consultants (iii) are disclosed as reasonably required in a proceeding to
enforce the Consultants' rights under this Agreement or (iv) is disclosed as
required by court order or applicable law.
C. Upon termination of the Consultants for any reason,
or at any time upon request of the Company, the Consultants agree to deliver to
the Company all materials of any nature which are in the Consultant's possession
or control and which are or contain Confidential Information, Work Product or
Work Products (hereinafter defined), or which are otherwise the property of the
Company or any vendor, licensor, licensee, customer or client of the Company,
including, but not limited to writings, designs, documents, records, data,
memoranda, tapes and disks containing software, computer source code listings,
routines, file layouts, record layouts, system design information, models,
manuals, documentation and notes.
D. All copyrights, logos and other advertising
materials, conceived by the Consultants specifically in connection with the
consulting services rendered by Consultants for Company under this Agreement
(alone or with others) during the Term ("Work Product") shall be the exclusive
property of and assigned to the Company or as the Company may direct without
compensation to the Consultants other than the compensation provided for herein.
Any records with respect to the foregoing shall be the sole and exclusive
property of the Company and the Consultants shall surrender possession of such
records to the Company upon any suspension or termination of the Consultants.
Any Work Product shall be deemed incorporated in the definition of Confidential
Information for all purposes hereunder.
E. The Consultants will not assert any rights with
respect to the Company, its business, or any of its products, processes and
other services relating thereto, Work Product or any Confidential Information as
having been acquired or known by the Consultants prior to the commencement of
the Consultants' engagement by the Company unless such rights are asserted in
good faith and verified.
14. Work Product
A. The Consultants represents and warrant to the Company
that all work that the Consultants perform, for or on behalf of the Company and
its clients, and all work product that the Consultants produces, including, but
not limited to, software, documentation, memoranda, ideas, designs, inventions,
processes, algorithms, etc. (also "Work Product") will not knowingly infringe
upon or violate any patent, copyright, trade secret or other property right of
any other third party. Further, the Consultants will not disclose to the Company
or use in any of the Consultants' Work Product any confidential or proprietary
information belonging to others, unless both the owner thereof and the Company
have consented to such disclosure and usage.
B. The Consultants will promptly disclose to the Company
all Work Products developed by the Consultants within the scope of the
Consultants acting as consultants to the Company or which relate directly to, or
involve the use of, any Confidential Information including, but not limited to,
all software, concepts, ideas and designs, and all documentation, manuals,
letters, pamphlets, drafts, memoranda and other documents, writings or tangible
things of any kind.
C. The Consultants acknowledges and agree that all
copyrightable Work Products prepared by the Consultants within the scope of the
Consultants acting as consultants to the Company are "works made for hire" and,
consequently, that the Company owns all copyrights thereto subject to Company
fulfilling the compensation obligations to Consultants as provided in this
Agreement.
D. The Consultants hereby assign, transfer and convey to
the Company, without additional consideration, all of the Consultants' other
rights, title and interest (including, but not limited to, all patent, copyright
and trade secret rights) in and to all Work Products prepared by the Consultant,
whether patentable or not, made or conceived, in whole or in part, by the
Consultants within the scope of the Consultants acting as consultants to the
Company, or that relate directly to, or involve the use of, Confidential
Information, subject to Company fulfilling its compensation obligations to
Consultants as provided in this Agreement.
E. The Consultants will, without additional
compensation, execute all assignments, oaths, declarations and other documents
requested by the Company to effect and further evidence the foregoing
assignment, transfer and conveyance, and agree to provide all reasonable
assistance to the Company (at the Company's expense) to provide all information,
documentation and assistance to the Company in perfecting, enforcing, defending
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or protecting any or all of the Company's rights in all Work Product subject to
Company fulfilling its compensation obligations to Consultants as provided in
this Agreement
15. Indemnification by the Consultants.
A. The Consultants shall indemnify, protect, defend and
save and hold harmless the Company from and against any loss resulting to them
from:
(i) All liabilities of the Consultants, whether
accrued, absolute, contingent, or otherwise existing on the date of this
Agreement;
(ii) Any and all losses, liabilities, costs,
damages, or expenses which Company may suffer, sustain or incur arising out of
or due to a breach by the Consultants of any covenant, representation or
warranty made in this Agreement or from any misrepresentation and/or omission
pursuant to this Agreement; and
(iii) Any and all claims or actions against the
Company, and any and all costs, expenses, losses, including but not limited to,
arbitration awards, civil judgments, reasonable attorney fees and costs, and
court or arbitration fees and costs, arising out of any act, or any omission of
Consultants in the performance of any duties or services, regardless of whether
said claim or action against the Consultants are individually dismissed, prior
to, or at the arbitration hearing or court proceeding. The Company, in its sole
and absolute discretion, without the prior approval of the Consultants, may
settle or compromise any claim at any time. In the event the Consultants wishes
to disagree with such settlement, it may do so by filing a bond/or depositing
into an escrow account for the benefit of the Company the amount of general
damages alleged by the plaintiff or claimant against Company. In such event, the
Company shall agree not to settle the claim without the consent of the
Consultants.
(iv) Any and all losses, claims, damages or
liabilities to which the Company may become subject under the Securities Act of
1933, as amended, (the "Act") or otherwise insofar as such losses, claims
damages or liabilities (or actions in respect thereof) arise out of or are based
upon violations of the Act, the Securities Exchange Act of 1934, as amended, and
the rules and regulations thereunder and upon any untrue statement or alleged
untrue statement or the alleged omission to state therein a material fact
required to be stated in any statements written or and made by the Consultants
in performing any of the Consulting Services pursuant to this Agreement, subject
to Company's obligations as set forth in Paragraph 8 above.
B. The indemnification, which is set forth in this
Article "15" of this Agreement shall be deemed to include not only the specific
liabilities or obligations with respect to which such indemnity is provided, but
also all reasonable costs, expenses, counsel fees, and expenses of settlement
relating thereto, whether or not any such liability or obligation shall have
been reduced to judgment.
C. If any demand, claim, action or cause of action,
suit, proceeding or investigation is brought against the Company and/or the
Consultants to which the Company is entitled to indemnification by the
Consultants pursuant to this Article "15" of this Agreement, the Company shall
give prompt notice thereof to the Consultants in accordance with Paragraph "C"
of Article "20" of this Agreement which notice shall contain a reasonably
thorough description of the nature and amount of the claim of indemnification.
Upon receipt of such notice, the Consultants shall use all reasonable efforts to
assist in the vigorous defense of any such matter. The failure of the Company to
notify the Consultants of any such demand, claim, action or cause of action,
suit, proceeding or investigation shall not relieve the Consultants from any
liability which he/she may have under this Article "17" of this Agreement except
to the extent such failure to notify the Consultants prejudice the Consultants.
16. Time Periods Not Limited. Any period of time set forth in this
Agreement shall not be construed to permit the Consultants to engage in any of
the prohibited acts set forth in this Agreement after such period if such acts
would otherwise be prohibited by any applicable statute or legal precedent.
17. Company. As used in this Agreement, "Company" shall mean
Biofield Corp., its successors and assigns, and any of its present or future
subsidiaries or organizations controlled by it.
18. Assignment. The rights granted hereunder to the Consultants
are personal in nature. Any purported transfer of any such rights, by operation
of law or otherwise, not specifically authorized pursuant to this Agreement
shall be void and shall also constitute a breach of this Agreement.
19. Relationship. Except as provided for in this Agreement,
neither party is the legal representative or agent of, or has the power to
obligate the other for any purpose whatsoever; and no partnership, joint
venture, agent, fiduciary, or employment relationship is intended or created by
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reason of this Agreement. It is the intent of the parties hereto that the
Consultants shall be an independent contractor of the Company and not an
employee of the Company.
20. Miscellaneous.
A. Headings. The headings contained in this Agreement
are for reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement.
B. Enforceability. If any provision which is contained
in this Agreement should, for any reason, be held to be invalid or unenforceable
in any respect under the laws of any State of the United States, such invalidity
or unenforceability shall not affect any other provision of this Agreement.
Instead, this Agreement shall be construed as if such invalid or unenforceable
provisions had not been contained herein.
C. Notices. Any notice or other communication required
or permitted hereunder must be in writing and sent by either (i) certified mail,
postage prepaid, return receipt requested and First Class mail, (ii) overnight
delivery with confirmation of delivery, or (iii) facsimile transmission with an
original mailed by first class mail, postage prepaid, addressed as follows:
If to the Company: Biofield Corp.
Attention: Xxxx Xxxxxxxx
0000 Xxxx Xxxxx Xxxxx Xxx. X
Xxxxxxxxxx, XX. 00000
Facsimile No.: (000) 000-0000
If to Consultants: Xxxxxxx Xxxxxxxxx
0000 Xxxx Xxxxxx, Xxxxx 0000
Xxxxxx, XX 00000
Facsimile No.: (000) 000-0000
Xxxxxxxx Xxxxxx
0000 Xxxx Xxxxxx, Xxxxx 0000
Xxxxxx, XX 00000
Facsimile No.: (000) 000-0000
or in each case to such other address and facsimile number as shall have last
been furnished by like notice. If mailing is impossible due to an absence of
postal service, and the other methods of sending notice set forth in this
Paragraph "C" of this Article "20"of this Agreement are not otherwise available,
notice shall be hand-delivered to the aforesaid addresses. Each notice or
communication shall be deemed to have been given as of the date so mailed or
delivered, as the case may be; provided, however, that any notice sent by
facsimile shall be deemed to have been given as of the date sent by facsimile if
a copy of such notice is also mailed by first class mail on the date sent by
facsimile; if the date of mailing is not the same as the date of sending by
facsimile, then the date of mailing by first class mail shall be deemed to be
the date upon which notice given.
D. Governing Law. This Agreement shall be construed and
enforced in accordance with, and the rights of the parties shall be governed by,
the laws of the State of California applicable thereto and the parties submit to
the jurisdiction of the courts of the State of California.
E. Entire Agreement. The parties have not made any
representations, warranties or covenants with respect to the subject matter
hereof which is not set forth herein, and this Agreement constitutes the entire
agreement between them with respect to the subject matter hereof. All
understandings and agreements heretofore had between the parties with respect to
the subject matter hereof are merged in this Agreement which alone fully and
completely expresses their agreement. This Agreement may not be changed,
modified, extended, terminated or discharged orally, but only by an Agreement in
writing, which is signed by all of the parties to this Agreement.
F. Further Assurances. The parties agree to execute any
and all such other further instruments and documents, and to take any and all
such further actions which are reasonably required to consummate, evidence,
confirm or effectuate this Agreement and the intents and purposes hereof.
G. Binding Agreement. This Agreement shall be binding
upon and inure to the benefit of the parties hereto and their heirs, executors,
administrators, personal representatives, successors and assigns.
47
H. Waiver. Except as otherwise expressly provided
herein, no waiver of any covenant, condition, or provision of this Agreement
shall be deemed to have been made unless expressly in writing and signed by the
party against whom such waiver is charged; and (i) the failure of any party to
insist in any one or more cases upon the performance of any of the provisions,
covenants or conditions of this Agreement or to exercise any option herein
contained shall not be construed as a waiver or relinquishment for the future of
any such provisions, covenants or conditions, (ii) the acceptance of performance
of anything required by this Agreement to be performed with knowledge of the
breach or failure of a covenant, condition or provision hereof shall not be
deemed a waiver of such breach or failure, and (iii) no waiver by any party of
one breach by another party shall be construed as a waiver with respect to any
other breach of this Agreement.
I. Counterparts. This Agreement may be executed
simultaneously in one or more counterparts, each of which shall be deemed an
original, but all of which together shall constitute one and the same
instrument.
J. Separate Counsel. The Consultants acknowledge having
had separate counsel of its own selection acting on its behalf in connection
with the negotiation, execution and consummation of this Agreement, and
covenants that it alone shall be liable and responsible for and shall not look
to the Company in connection with the fees and expenses of such separate
counsel.
IN WITNESS WHEREOF, the parties to this Agreement have set their hands
and seals or caused these presents to be signed of the day and year first
written above.
"Company"
-------
Biofield Corp.
Signature: __________________________________
Print name: _________________________________
Print title: ________________________________
"Consultants"
-----------
Signature: __________________________________
Print name: Xxxxxxx Xxxxxxxxx
Print title: Consultant
Signature: __________________________________
Print name: Xxxxxxxx Xxxxxx
Print title: Consultant
48
