CONSULTING SERVICES AGREEMENT
Exhibit
10.2
This
Consulting Services Agreement (“Agreement”) between Innovative Card
Technologies, Inc. (“INCARD"), a Delaware corporation having its principal place
of business at 00000 Xxxxxxxx Xxxx. Xxxxx 000 Xxx Xxxxxxx, XX 00000 and Bennet
P. Tchaikovsky, an individual (hereinafter “Consultant”).
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1.
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Independent
Contractor Relationship:
The INCARD and Consultant desire to enter into an independent contractor
relationship as set forth in this Agreement. It is the intent and
purpose
of this Agreement that Consultant shall at all times be an independent
contractor of INCARD and nothing contained herein shall be construed
to
create or establish the relationship of employer and employee, principal
and agent, joint venturer, or partner between the INCARD and Consultant.
Both parties acknowledge that Consultant is not an employee of Company
for
state or federal tax purposes. Consultant is an independent contractor
and
therefore shall be liable for any state and federal payroll taxes
in
connection with this agreement. Consultant shall have no authority
to
assume or create any obligation or liability in the name of, or on
behalf
of, INCARD or subject INCARD to any obligation or liability.
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2.
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Consultant’s
Representations and Warrantees.
Consultant acknowledges and agrees that as an independent, separate
business, Consultant is solely responsible for whatever profit or
loss
Consultant may incur through performance of this agreement. Consultant
represents that he has the qualifications and ability to perform
the
services sought in a professional manner, without the advice, control,
or
supervision of INCARD. Consultant shall be solely responsible for
the
professional performance of the services as set forth in Sections
4 and 5
below. Consultant further acknowledges and agrees that he shall have
no
authority to bind INCARD contractually or otherwise in any manner.
In
executing this Agreement, Consultant specifically acknowledges that
he has
consulted or had a reasonable opportunity to consult with counsel
of his
own choice and that he has executed this Agreement after independent
investigation and without fraud, duress, coercion or undue influence.
Consultant represents that Consultant is free of any Federal. State
or
Local restrictions on the performance of services contemplated; and
Consultant warrants that he is not prohibited from performing services
for
INCARD for any other reason. Furthermore, Consultant represents that
he
has no other existing conflict of interest in entering into this
agreement
or in providing any of the services
contemplated.
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3.
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Term:
The term of this consulting agreement shall commence on October29,
2007
and end on June 29, 2008. In the event either party wishes to terminate
the agreement prior to the end of the term, they may do so under
Section
7.
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4.
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Consulting
Services:
Consultant agrees to provide the following services (the
“Services”):
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a.
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Accounting
and business consulting services on an as needed basis for INCARD.
However, Consultant is not performing such services in his capacity
as a
Certified Public Accountant or as an attorney. INCARD shall retain
its own
counsel and outside Certified Public Accounting firm to review
Consultant’s work.
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b.
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Consultant’s
primary task shall be to assist with the preparation and filing of
INCARD’s September 30, 2007 10-QSB and to assist INCARD’s subsequently
appointed Chief Financial Officer (“CFO”) with any other items related to
the CFO transitioning into his new position. After January 1, 2008,
Consultant will make himself available to answer questions on a limited
basis of no more than one hour per month for the remainder of the
term.
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5.
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Scope
and Rules Governing Provision of Services:
Consultant’s provision of the Services shall be defined and governed as
follows:
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a.
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Consultant
shall perform all services hereunder in a commercially reasonable
manner
and to the best of his ability. However, Consultant shall have no
liability to INCARD for any loss, liability, cost or expense suffered
or
incurred by INCARD as a result of any act or omission by Consultant,
except such as arise from the gross negligence or willful misconduct
of
Consultant.
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b.
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Consultant
agrees that all research records, diagrams/drawings, photos/film,
documents, technical data, formulae, processes, software, methods
of
manufacture, inventions and improvements and like, all list of customers,
records of customer requirements and usage, and other information
concerning the business of INCARD or its affiliates, whether prepared
by
Consultant, or coming into his possession in the course of his duties
under this Agreement (all of the forgoing hereinafter referred to
as
“data”), are considered INCARD property (the “Proprietary Information”).
Proprietary Information also includes, but is not limited to, specific
customer requirements, customer and potential customer lists, including
information concerning INCARD’s employees, agents or divisions, and
pricing information.
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c.
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Consultant
will maintain in confidence and will not, directly or indirectly,
disclose
or use, either during or after the term of this Agreement, any Proprietary
Information or confidential information or know-how belonging to
INCARD,
whether or not it is in written or permanent form, except to the
extent
necessary to perform the Services. Upon termination of Consultant’s
services to INCARD, or at the request of INCARD before termination,
Consultant shall deliver to INCARD all material in Consultant’s possession
relating to INCARD’s business, including, but not limited to, any and all
copies of any materials given to the Consultant by INCARD or generated
by
Consultant. The obligations concerning Proprietary Information extend
to
information belonging to customers and suppliers of INCARD about
whom
Consultant may have gained knowledge as a result of performing the
Services.
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d.
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Consultant
further acknowledges and agrees that any material or work product
created
or developed by Consultant pursuant to this Agreement in connection
with
the Services and all the elements thereof furnished by INCARD hereunder
will be created within the scope of Consultant’s engagement by INCARD and,
accordingly, the parties expressly agree that, immediately upon creation
thereof, said materials and work are, and shall be, considered INCARD’s
sole and exclusive property for purposes of intellectual property
rights
and that INCARD is, and shall be considered, the author of said materials
and work product for all purposes. If, for any reason, it should
be
determined that such materials and work product are not work made
for
hire, then this Agreement shall be deemed an assignment by Consultant
to
INCARD of all such rights.
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6.
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Compensation
to Consultant:
In exchange for Services, INCARD agrees to pay Consultant as
follows:
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Invoice
Date
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Base
Fee
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Medical Reimbursement
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Cellphone
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October
29, 2007
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$
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10,833
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$
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1,437
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NTE
$400.00
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November
29, 2007
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$
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10,833
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$
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1,437
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NTE
$400.00
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December
29, 2007
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$
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10,833
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$
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1,437
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NTE
$400.00
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January
29, 2008
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$
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10,833
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$
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1,437
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February
29, 2008
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$
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10,833
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$
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1,437
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March
29, 2008
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$
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10,833
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$
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1,437
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April
29, 2008
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$
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10,833
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$
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1,437
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May
29, 2008
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$
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10,833
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$
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1,437
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June
29, 2008
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$
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10,833
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$
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1,437
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Totals
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$
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97,497
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$
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12,933
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NTE
$1,200
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NTE-
not to exceed
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(a)
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Consultant,
at the beginning of each period, shall provide INCARD with and invoice
for
the base fee, medical reimbursement and cellphone costs (where
appropriate) for the coming period. Consultant will be paid upon
five (5)
business days upon presentation of such invoice.
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(b)
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Consultant
shall be entitled to reimbursement for reasonable expenses while
Consultant performs services provided that Consultant obtains a Purchase
Order prior to incurring the expenditure that is approved by an officer
of
INCARD.
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(c)
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Consultant
will not be entitled to any other compensation or expense reimbursement
unless approved in advance and with a valid Purchase
Order.
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7.
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Termination
Prior to End of Term.
This Agreement shall automatically terminate on June 29, 2008. In
the
event that Consultant becomes a full-time employee of any company,
corporation, limited liability company or other business entity prior
to
the end of the term, Consultant or INCARD may terminate this Agreement
without cause. Upon transmission of written notice of termination
by
either Party, any obligation to pay compensation by INCARD or to
provide
services by Consultant shall cease immediately. Consultant shall
be
required to transmit written notice to INCARD immediately upon learning
he
has obtained full time employment with another party via facsimile
and
first class mail (“Employment Notification”). In the event Consultant
fails to provide timely Employment Notification, Consultant shall
be
required to return all amounts paid by INCARD for any period after
Consultant commenced such full time employment along with additional
liquidated damages of $2,500 for each week that passes from the start
date
of employment and the transmission of the Employment Notification.
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8.
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Miscellaneous:
This Agreement contains the entire understanding of the parties with
respect to the subject matter hereof and neither party has relied
upon any
representation, warranty or promise not contained herein.
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a.
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No
failure by either party to insist upon the strict performance of
any term
or provision of this Agreement shall constitute a waiver thereof
on that
or any subsequent occasion.
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b.
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This
Agreement may be amended, and any term or provision hereof may be
waived,
only in a writing signed by the party charged with such amendment
or
waiver.
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c.
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In
the event of any litigation between the parties with respect to this
Agreement or the performance of either party hereunder, the prevailing
party shall be entitled to recover, in addition to any other relief
awarded by the court, its reasonable attorneys’ fees and other costs of
preparing for and participating in the litigation.
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d.
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This
agreement shall be governed and construed by the laws of the State
of
California. Consultant agrees that any litigation initiated by Consultant
relating in any manner to this Agreement shall be conducted in Los
Angeles, California.
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e.
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If
any term, provision, condition or covenant to this Agreement or its
application to any party or circumstance shall be held, to any extent,
invalid or unenforceable, then the remainder of this Agreement, or
the
application of such term, provision, condition or covenant to any
party or
circumstances other than those as to whom or which it is held invalid
or
unenforceable, shall not be effected and shall be valid and enforceable
to
the fullest extent permitted by law.
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f.
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Each
of the covenants, agreements, representations, and warranties contained
in
this Agreement shall survive the execution of this
Agreement.
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IN
WITNESS WHEREOF, the undersigned has executed the Agreement effective this
October 29, 2007.
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Innovative
Card Technologies, Inc.
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Bennet P. Tchaikovsky | ||
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/s/
Bennet P. Tchaikovsky
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Xxxxx
Xxxxxxxxx, CEO
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Xxxxxx
X. Tchaikovsky
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