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EXHIBIT 10.8
CONSULTING AGREEMENT
THIS AGREEMENT (the "Agreement") is made and entered into this
_1st______day of April, 2001, by and between XXXXXXXXX.XXX, INC., a corporation
organized and existing under the laws of the State of Colorado (the "Client")
and JULIARD COMMUNICATIONS, INC., a corporation organized and existing under the
laws of the State of New York (the "Consultant").
WHEREAS, Client is organized for the purpose of storing and supplying
personal medical history, records and data on the Internet; and
WHEREAS, Consultant is engaged in the business of providing strategic
planning, business management, advertising and marketing consulting services to
persons, firms and corporations; and
WHEREAS, Client desires to retain Consultant to provide consulting
services in the areas of software development, financing, advertising and
marketing and Consultant is willing to provide such services.
NOW, THEREFORE, in consideration of the mutual promises and agreements
hereinafter set forth, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
1. Consulting Services. Client hereby retains Consultant as an
independent consultant to Client and Consultant hereby accepts and agrees to
such retention. Consultant shall render to Client services as further defined in
Schedule A attached hereto.
2. Time. Place and Manner of Performance.
a. Consultant shall be available for advice and counsel to
Client and its representatives and agents at such reasonable and
convenient times and places as may be mutually agreed upon. Except as
aforesaid, the time, place and manner of performance of the services
hereunder, including the amount of time to be allocated by Consultant
to any specific service, shall be determined in the sole discretion of
Consultant. Client acknowledges that Consultant will devote such time
as is reasonably necessary to perform the services described herein for
Client having due regard for Consultant's obligations and commitments
to Consultant's other clients for which it performs consulting
services.
b. Performance of all services hereunder shall be performed
directly by Consultant, unless otherwise permitted by the Board of
Directors of Client, as evidenced by their written consent.
c. Consultant will report to Xx. Xxxxxxx X. Xxxxxxxx Xx. and
Xx. Xxxxxxx X. Xxxxxxxx, the joint inventors of Client's invention
(U.S. Patent pending), on matters relating to software and technical
development and support and, on other business and corporate matters to
Xxxxxxx X. Xxxxxxxx Xx., Ph.D. and on financial, securities and
investments, to Xxxx X. Xxx CFO of Client and Xxxxxxx X. Xxxxxxxx Xx.,
Ph.D., President of Client.
3. Independent Contractor. It is expressly understood and agreed that
Consultant is acting as an independent contractor in performing its services
hereunder.
4. Term of Agreement. The term of this Agreement shall be for a period
of six (6) consecutive months (the "Initial Term") commencing April ____1___,
2001 and ending September __30_____, 2001. Client and Consultant agree that at
least thirty (30) days prior to the end of this six (6) month Initial Term that
Client and Consultant will, in good faith, enter into negotiations to extend
this Agreement for an additional twelve (12) month term (the "Second Term"). If
an agreement cannot be reached on the "Second Term" then this agreement will
terminate on September 30, 2001.
5. Compensation. As consideration for furnishing the aforementioned
services, Client shall pay to Consultant, and Consultant shall accept, the sum
of five thousand ($5000.00) dollars per month, for six (6) consecutive months.
The first monthly payment will be paid at the execution of this agreement.
Subsequent payments will be due and payable in advance on the first day of each
month. Reimbursement will be at the end of the month, as is the company policy
for all officers and consultants of the company. If for financial reasons the
company must implement a cost reduction program which would result in a
reduction of staff and consultants then this agreement would terminate.
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6. Expenses. Client will reimburse Consultant for all reasonable and
necessary expenses and disbursements made or advanced by Consultant in
furtherance of its services and performance under this Agreement. Such expenses
and disbursements shall include but not be limited to: "out-of-pocket" expenses
for travel, telephone, postage and over night delivery charges. However, any
anticipated expense, greater than one hundred ($100.00) dollars, shall first be
approved by Client, in writing, prior to being incurred or advanced by
Consultant. Consultant shall invoice Client for all such expenses and
disbursements and Client shall pay such invoice upon receipt thereof.
7. No Known Conflicts. As of the execution of this Agreement, neither
Consultant nor Client are aware of any claims or issues, legal or otherwise,
which could create a conflict of interest between Consultant and Client.
8. Confidentiality and Publicity.
a. Consultant shall not disclose, without the consent of Client, any
financial or business information concerning the business, affairs, plans and
programs of Client which are delivered by Client to Consultant in connection
with Consultant's services hereunder, provided such information is plainly and
promptly marked in writing by Client as being confidential (the "Confidential
Information"). All Confidential Information shall remain the property of Client.
b. Consultant will not be bound by the foregoing paragraph (a) in the
event (i) the Confidential Information is otherwise disseminated, through no
fault of Consultant, and becomes public information or (ii) Consultant is
required to disclose the Confidential Information pursuant to subpoena or other
judicial order.
c. Consultant will not, during the term of this Agreement and any
extensions thereof, use for publicity purposes or reveal to any third party that
Client is a client of Consultant except as expressly agreed to by and between
Client and Consultant. In the event that Consultant becomes legally compelled to
disclose the fact that Client is a client of Consultant, the Consultant will
provide Client with prompt notice of such circumstances so that Client may seek
a protective order or other appropriate remedy and/or waive compliance with the
provisions of this Agreement. In the event that such protective order or other
remedy is not obtained, or that Client waives compliance with the provisions of
this Agreement, Consultant will furnish only such information which it is
advised, by written opinion of counsel, as legally required and will exercise
its best efforts to obtain a protective order or other reliable assurance that
confidential treatment will be accorded the information provided. Client shall
have the right, but not the obligation, to use Consultant's name in connection
with Client's commercial business(es) provided that such use of Consultant's
name is agreed to and approved in writing in advance by Consultant.
9. Future Conflicts of Interest. Consultant shall be free to perform
services for other persons and/or entities, including those engaged in the same
or similar business as that of Client. Consultant will notify Client of
Consultant's performance of consulting services for any other person or entity
that could conflict with Consultant's obligations under this Agreement. Upon
receiving such notice, Client may terminate this Agreement or consent to
Consultant's performance of services for such other person or entity and such
consent shall not be deemed a conflict of interest.
10. Disclaimer of Responsibility for Acts of the Client. The
obligations of Consultant described in this Agreement consist solely of the
furnishing of services to Client as described in paragraph one (1) above. In no
event shall Consultant be required by this Agreement to represent or make
management decisions for Client. All final decisions with respect to acts and
omissions of Client or any affiliates and subsidiaries, shall be those of the
Client or its affiliates and Consultant shall under no circumstances be liable
for any expense incurred or loss suffered by Client, as a consequence of such
acts or omissions, unless such acts or omissions are necessitated by the actions
of the Consultant in the performance of its services hereunder.
11. Limitations on Information to be Disseminated. Consultant
acknowledges and the federal and state securities limitations restrict the type
and kind of information that may be distributed by the Client and its agents, as
well as the timing of such dissemination. Accordingly, Consultant agrees to only
disseminate information provided by and authorized by Client. Dissemination of
false or misleading statements, or information not provided by Client, shall
constitute a breach of this Agreement.
12. Warranties. Client and Consultant warrant, represent, and covenant
to each other that:
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(a) Client is a corporation organized, validly existing and in
good standing under the laws of the State of Colorado; (i)
is duly licensed to do business in the State of Colorado
and shall, during the term of this Agreement and any
extensions thereof, maintain its corporate existence and
good standing in the State of Colorado or such other state
or states as Client shall determine and (ii) is free to
enter into this Agreement and is not a party to any
agreement, contract, security agreement or other
commitment which would prevent Client from fulfilling its
obligations hereunder.
(b) Consultant is a corporation organized, validly existing
and in good standing under the laws of the State of New
York; (i) is duly licensed to do business in the State of
New York and shall, during the term of this Agreement and
any extensions thereof, maintain its corporate existence
and good standing in the State of New York or in such
other state or states as Consultant shall determine and
(ii) is free to enter into this Agreement and is not a
party to any agreement, contract, security agreement or
other commitment which would prevent Consultant from
fulfilling its obligations hereunder.
13. Notices. Any notice, consent, designation, request or other
communication under this Agreement shall be in writing and shall be considered
given when sent by e-mail or fax and by US Postal Service Priority Mail or by
other overnight delivery service to the parties at such address as a party may
specify by notice in accordance with the provisions hereof to the other.
14. Waiver or Breach. Any waiver by either party of a breach of any
provision of this Agreement by the other party shall not operate or be construed
as a waiver of any subsequent breach by any party.
15. Assignment. This Agreement and the rights and obligations hereunder
shall not be assignable by either party without the written consent of the other
party.
16. Governing Law Venue and Arbitration Provision. This Agreement shall
be construed under and governed by the laws of the State of Colorado. The
parties hereto agree that any dispute arising directly or indirectly from this
Agreement shall be settled by arbitration. In the event that Consultant and
Client are unable to agree upon an arbitrator within twenty-one (21) days of a
demand for arbitration, any arbitration will be conducted by the American
Arbitration Association in accordance with its Rules of Commercial Arbitration,
and judgment upon the award rendered by the arbitrator may be entered in any
court having jurisdiction thereof. In no event shall a demand for arbitration be
made after the date when institution of legal or equitable proceedings based on
such claim(s), dispute, or other matter in question would be barred by the
applicable statutes of limitations.
17. Severability. All agreements and covenants contained herein are
severable, and in the event any of them shall be held to be invalid by any
competent court, this Agreement shall be interpreted as if such invalid
agreement(s) or covenant(s) was/were not contained herein.
18. Survival. The Parties expressly agree that the covenants contained
in paragraphs eight (8) and eleven (11) above, and the Parties' obligations
thereunder, shall survive the termination of this Agreement for five years.
19. Entire Agreement. This Agreement constitutes and embodies the
entire understanding and agreement of the parties and supersedes and replaces
all prior understandings, agreements and negotiations between the parties.
20. Waiver and Modification. Any waiver, alteration or modification of
any of the provisions of this Agreement shall be valid only if made in writing
and signed by the parties hereto. Each party hereto, from time to time, may
waive any of its rights hereunder without affecting a waiver with respect to any
subsequent occurrence(s) or transaction(s) hereof.
21. Attorneys' Fees and Costs. In the event of any dispute arising out
of the subject matter of this Agreement, the prevailing party shall bear its own
attorneys' fees and court costs incurred in litigating or otherwise settling or
resolving such dispute. In construing this Agreement, none of the parties hereto
shall have any term or provision construed against such party solely by reason
of such party having drafted the same.
22. Counterparts and Facsimile Signatures. This Agreement may be
executed simultaneously in two or more counterparts, each of which shall be
deemed an original, but all of which taken together shall constitute one and
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the same instrument. Execution and delivery of this Agreement by exchange of
facsimile copies bearing the facsimile signature of a party hereto shall
constitute a valid and binding execution and delivery of this Agreement by such
party. Such facsimile copies shall constitute enforceable original documents.
IN WITNESS WHEREOF, the parties hereto have duly executed and delivered
this Agreement as of the day and year first above written.
CONSULTANT: CLIENT:
JULIARD COMMUNICATIONS, INC XXXXXXXXX.XXX, INC.
By: : /s/ Xxxxxxx X. Xxxx By: /s/ Xxxxxxx X. Xxxxxxxx, Xx.
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Xxxxxxx X. Xxxx, President Xxxxxxx X. Xxxxxxxx Xx., President
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SCHEDULE "A"
SERVICES TO BE PERFORMED
1. Consultant shall provide strategic planning, business, management,
advertising and marketing consulting services which shall include sales, public
relations, merchandising and general business management and advisory services.
2. Consultant shall use its best efforts to secure Software Developers to
develop Client's future software product(s).
3. Consultant shall use its best efforts to introduce Client's product(s) to
funding sources in an effort to secure funds for Client's funding needs and
requirements.
4. Consultant shall use its best efforts to introduce and promote Client's
product(s) to businesses, organizations and associations and to help sign up
such groups as Affiliates of Client.
5. Consultant shall use its best efforts to assist Client in the marketing,
promotion, and advertising of the Client's services and software products.
CONSULTANT: CLIENT:
JULIARD COMMUNICATIONS, INC XXXXXXXXX.XXX, INC.
By: /s/ Xxxxxxx X. Xxxx By: /s/ Xxxxxxx X. Xxxxxxxx, Xx.
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Xxxxxxx X. Xxxx, President Xxxxxxx X. Xxxxxxxx Xx., President
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AMENDMENT TO CONSULTING AGREEMENT
Amendment to Consulting Agreement dated July 10, 2001 by and between
XXXXXXXXX.XXX, INC. ("IDMedical") and JULIARD COMMUNICATIONS, INC. ("Juliard").
WHEREAS, IDMedical and Juliard entered into a Consulting Agreement dated April
1, 2001 (the "Agreement") relating to the provision of certain services by
Juliard for the benefit of IDMedical.
WHEREAS, the parties desire to amend the Agreement.
NOW, THEREFORE, in consideration of the mutual promises and agreements
hereinafter set forth, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
1. Paragraph 1. Consulting Services is hereby amended to include the
additional services specified in Exhibit A, attached hereto.
2. Paragraph 5. Compensation is hereby amended to include the additional
compensation specified in Exhibit B, attached hereto.
In all other respects the Agreement shall remain unchanged and the parties
hereby re-publish, re-confirm, and ratify each and every provision thereof.
IN WITNESS WHEREOF, the parties hereto have duly executed and delivered this
Amendment to Consulting Agreement as of the day and year first above written.
JULIARD COMMUNICATIONS, INC. XXXXXXXXX.XXX, INC.
By: /s/ Xxxxxxx X. Xxxx By: /s/ Xxxxxxx X. Xxxxxxxx, Xx.
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Xxxxxxx Xxxx, President Xxxxxxx X. Xxxxxxxx Xx., President & CEO
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EXHIBIT A
THE CONSULTANT AGREES TO PROVIDE THE FOLLOWING ADDITIONAL SERVICES TO THE
CLIENT:
(1) Visual design and re-design work of the new XXXxxxxxx.xxx web site
presently hosted at xxx.xx-xxx.xxx/xxxxxxxxx;
(2) computer programming necessary to integrate the visual design and
re-design work into and with the XXXxxxxxx.xxx "data base" so that the
XXXxxxxxx.xxx web site will function properly and that visitors to the
web site can sign up, enter data, and become XXXxxxxxx.xxx members;
(3) computer programming necessary to fix and correct any errors and/or
omissions that may exist in the Client's software or code;
(4) privacy and security consulting, analysis and reporting of any
security vulnerabilities that may exist in the Client's software or
code and on the Client's servers; and
(5) on a best effort basis seek an agreement with an advertising
executive and/or advertising agency that will develop a new image for
the Client to advertise and market its services.
JULIARD COMMUNICATIONS, INC. XXXXXXXXX.XXX, INC.
By: /s/ Xxxxxxx X. Xxxx By: /s/ Xxxxxxx X. Xxxxxxxx, Xx.
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Xxxxxxx Xxxx, President Xxxxxxx X. Xxxxxxxx Xx., President & CEO
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EXHIBIT B
UPON EXECUTION HEREOF, FOR THE ADDITIONAL SERVICES RENDERED BY THE CONSULTANT
UNDER THIS AMENDMENT, THE CLIENT AGREES TO COMPENSATE THE CONSULTANT AS FOLLOWS:
(1) The Client shall issue two hundred thousand (200,000) shares
of its common stock (the "Common Stock") to the Consultant.
Such stock shall be unrestricted and will not bear any
restricted legend thereon or restriction(s) thereto.
(2) The Consultant shall not sell, transfer, hypothecate or
otherwise encumber the Common Stock unless and until the
Client has notified the Consultant in writing that the Client
approves of and is satisfied with the services provided by the
Consultant. Upon notification thereof Consultant may then
sell, transfer, hypothecate or otherwise encumber the common
stock as and for any of the additional services specified in
"Exhibit A" hereto, and the Client shall then own the rights
in and to the product(s) / service(s) derived from the
services specified in "Exhibit A". The Consultant will execute
a general release as and for the specific product(s) /
service(s) so delivered and / or so performed.
(3) If the Client determines, in its reasonable opinion, that the
services or any portion of the services performed by the
Consultant are unacceptable, the Consultant shall return the
Common Stock or a pro-rata amount of the Common Stock, as is
mutually determined by the Client and Consultant, to the
Client for cancellation by the Client.
(4) To comply with applicable securities laws, Consultant
represents and warrants to the Client that Juliard
Communications, Inc. is the wholly-owned "alter ego" of
Xxxxxxx Xxxx.
JULIARD COMMUNICATIONS, INC. XXXXXXXXX.XXX, INC.
By: /s/ Xxxxxxx X. Xxxx By: /s/ Xxxxxxx X. Xxxxxxxx, Xx.
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Xxxxxxx Xxxx, President Xxxxxxx X. Xxxxxxxx Xx., President & CEO
