CONSULTING AGREEMENT
This Consulting Agreement (this "Agreement") is made as of December 18,
2003 ("Effective Date") by and between NanoSignal Corporation., a Nevada
Corporation (the "Company"), and Sanitec Services of Hawaii, Inc., a Hawaii
corporation ("Consultant").
RECITALS
WHEREAS, the Company and Consultant desire to work together for the
purposes of consultant providing advice, consultant services and Company
retaining consultant for advice in expanding its operations in the State of
Hawaii; and
WHEREAS, Consultant has many invaluable medical business contacts
throughout Hawaii and is engaged in the business of bio-medical waste disposal
and has thoughts of how to improve and modify the Company's SLICES technology to
adapt it to other uses in addition to the MRI business; and
WHEREAS, the Company wishes to retain Consultant, and Consultant wishes to
be retained by the Company to assist the Company in meeting the objectives
identified herein.
NOW, THEREFORE, in consideration of the foregoing and of the covenants,
agreements, representations and warranties hereinafter contained, and other good
and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the Company and Consultant agree as follows:
1. Retention. The Company hereby agrees to retain Consultant and
Consultant agrees to be available to serve the Company during the
Consulting Period (as hereinafter defined), as a consultant and
advisor, which shall include such reasonable consulting and advisory
services for the Company as may be requested by the Company or
someone acting pursuant to its authorization.
2. Duties of Consultant. The Consultant agrees to perform the
consulting services (the "Services") set forth for the purposes of
assisting the Company in introducing the Company and its technology
to medical businesses in Hawaii and to consult and advise the
Company in possible modifications to SLICES to adapt the technology
to other areas in addition to MRI imaging. Consultant shall perform
the services and shall devote such time and attention to consulting
and advising as shall be reasonably requested by the Company.
Consultant may, at Consultant's own expense, use employees or other
subcontractors to assist Consultant with the performance of the
services.
3. Term. The consulting period shall commence as of the effective date
of this Agreement, and shall continue for a period of six months
(the "Consulting Period").
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4. Status of Consultant. Consultant understands and agrees that
Consultant is not an employee of the Company and that Consultant is
not entitled to receive employee benefits from the Company,
including, but not limited to, sick leave, vacation, retirement,
death benefits or automobile expense. Consultant shall be
responsible for providing, at Consultant's expense and in
Consultant's name, disability, worker's compensation or other
insurance as well as licenses and permits usual or necessary for
conducting the services hereunder. Furthermore, Consultant shall
pay, when and as due, any and all taxes incurred as a result of
Consultant's compensation hereunder, including estimated taxes, and
shall provide Company with proof of said payments, upon demand.
Consultant hereby agrees to indemnify the Company for any claims,
losses, costs, fees, liabilities, damages or injuries suffered by
the Company arising out of Consultant's breach of this Section 4.
5. Compensation. The Company shall compensate Consultant with the
issuance of six million shares of the Company's common stock. This
fee is due upon execution of this agreement, subject to the filing
of a Registration Statement on Form S-8 to register the Shares. This
fee is subject to the parameters of section 2. This fee is full
payment for all services rendered by Consultant. There shall be no
additional fees due to consultant. The stock to be issued to
Consultant shall be issued in the name of Consultant's president,
Xxxxxx Xxxxx.
6. Termination on Notice. The Company may terminate this Agreement at
any time by giving fifteen (15) days written notice to Consultant.
Consultant shall have the obligation to provide services up to and
until the effective date of such termination, should the Company
request such services in writing. In the event of this termination
all fees, which are paid to consultant will be considered earned and
fully paid. Consultant shall be under no obligation to return any
compensation received.
7. Automatic Termination. This Agreement terminates automatically on
the occurrence of the death or disability of Consultant, or upon
mutual termination by both parties.
8. Return of Company Property. Upon the termination or expiration of
this Agreement, consultant shall immediately transfer to the Company
all files (including, but not limited to, electronic files),
records, documents, drawings, specifications, equipment and similar
items in Consultant's possession relating to the business of the
Company or its Confidential Information (as defined herein)
(including the work product of Consultant created pursuant to this
Agreement).
9. Property Belonging to Company. Consultant agrees that all
developments, ideas, devices, improvements, discoveries, apparatus,
practices, processes, methods, concepts and products (collectively
the "Inventions") developed by Consultant during the term of this
Agreement are the exclusive property of the Company and shall belong
to the Company. Consultant agrees to assign the Inventions to the
Company, provided, however, notwithstanding the foregoing,
Consultant shall not be required to assign its rights in any
invention which Consultant developed entirely on
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Consultant's own time without using the Company's equipment,
supplies, facilities or trade secret information except for those
inventions that either (i) relate at the time of conception or
reduction to practice of the invention to the Company's business, or
actual or demonstrably anticipated research of development of the
Company or (ii) result from any work performed by Consultant for the
Company.
10. Access to Confidential Information. Consultant agrees that during
the term of the business relationship between Consultant and the
Company, Consultant will have access to and become acquainted with
confidential proprietary information ("Confidential Information"),
which is owned by the Company and is regularly used in the operation
of the Company`s business. Consultant agrees that the term
"Confidential Information" as used in this Agreement is to be
broadly interpreted and includes (i) information that has, or could
have, commercial value for the business in which the Company is
engaged, or in which the Company may engage at a later time, and
(ii) information that, if disclosed without authorization, could be
detrimental to the economic interests of the Company. Consultant
agrees that the term "Confidential Information" includes, without
limitation, any patent, patent application, copyright, trademark,
trade name, service xxxx, service name, "know-how," negative
"know-how", trade secrets, customer and supplier identities,
characteristics and terms of agreement, details of customer or
consultant contracts, pricing policies, operational methods,
marketing plans or strategies, product development techniques or
plans, business acquisition plans, science or technical information,
ideas, discoveries, designs, computer programs (including source
codes), financial forecasts, unpublished financial information,
budgets, processes, procedures, formulae, improvements or other
proprietary or intellectual property of the Company, whether or not
written or tangible form, and whether or not registered, and
including all memoranda, notes, summaries, plans, reports, records,
documents and other evidence thereof. Consultant acknowledges that
all Confidential Information, whether prepared by Consultant or
otherwise acquired by consultant in any way, shall remain the
exclusive property of the Company.
11. No Unfair Use by Consultant. Consultant promises and agrees that
Consultant (which shall include Consultant's employees and
contractors) shall not misuse, misappropriate, or disclose in any
way to any person or entity any of the Company's Confidential
Information, either directly or indirectly, nor will Consultant use
the Confidential Information in any way or at any time except as
required in the course of Consultant's business relationship with
the Company. Consultant agrees that the sale or unauthorized use of
the Company's Confidential Information constitutes unfair
competition. Consultant promises and agrees not to engage in any
unfair competition with the Company and will take measures that are
appropriate to prevent its employees or contractors from engaging in
unfair competition with the Company.
12. Further Acts. Consultant agrees that, at any time during the term of
this Agreement or any extension thereof, upon the request of the
Company and without further compensation, but at no expense to
Consultant, Consultant shall perform any lawful acts, including the
execution of papers and oaths and the giving of testimony, that in
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the opinion of the Company, its successors or assigns, may be
necessary or desirable in order to obtain, sustain, reissue and
renew, and in order to enforce perfect, record and maintain, patent
applications and United States and foreign patents on the Company's
inventions, and copyright registrations on the Company's inventions.
13. Obligations Survive Agreement. Consultant's obligations under this
agreement shall survive the expiration or termination of this
Agreement for a period of five (5) years.
14. Representations by Consultant. Consultant represents that Consultant
has the qualifications and ability to perform the services in a
professional manner, without the advice, control or supervision of
the Company. Consultant shall indemnify, defend and hold harmless
the Company, and the Company's officers, directors and shareholders
from and against any and all claims, demands, losses, costs,
expenses, obligations, liabilities, damages, recoveries and
deficiencies, including, without limitation, interest, penalties and
reasonable attorney fees and costs, that the Company may incur or
suffer and that arise, result from or are related to any breach or
failure of Consultant to perform any of the representations,
warranties and agreements contained in this Agreement. Consultant is
providing these services only for advisory work involving mergers
and acquisitions and potential business combinations.
15. Assignment of Rights or Delegation of Duties by Consultant;
Company's Right to Assign. Consultant's rights and benefits under
this Agreement are personal to Consultant and therefore no such
right or benefit shall be subject to voluntary or involuntary
alienation, assignment or transfer. However, the consultant will be
allowed as part of this agreement to assign any and all of the
payment of the services to third parties, agents, officers,
employees, and other consultants in its efforts to provide services
as pursuant to this agreement.
16. Entire Agreement. This Agreement supersedes any and all other
agreements, either oral or in writing, between the parties with
respect to the subject matter hereof and contains all of the
covenants and agreements between the parties with respect to the
services to be rendered by Consultant to the Company in any manner
whatsoever. Each party to this Agreement acknowledges that no
representations, inducements, promises or agreements, orally or
otherwise, have been made by any party, or anyone acting on behalf
of any party, which are not embodied herein, and that no other
agreement, statement or promise not contained in this Agreement
shall be valid or binding on either party.
17. Waiver. No waiver of any term or provisions of this Agreement will
be valid unless such waiver is in writing signed by the party
against whom enforcement of the waiver is sought. No waiver or
breach of any agreement or provision of this Agreement shall be
deemed a waiver of any preceding or succeeding breach thereof or a
waiver or relinquishment of any other agreement or provision or
right or power contained in this Agreement.
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18. No Third Party Beneficiary. Nothing in this Agreement, whether
expressed or implied, is intended to create any third party
beneficiary obligations and the parties hereto specifically declare
that no person or entity, other than as set forth in this Agreement,
shall have any rights hereunder or any right of enforcement
hereunder.
19. Severability. If any term or provision of this Agreement is found to
be invalid, illegal or unenforceable under present or future laws
effective during the term of this Agreement, then and, in that event
(i) the performance of the offending term or provision (but only to
the extent its application is invalid, illegal or unenforceable)
shall be excused as if it had never been incorporated in to this
Agreement, and, in lieu of such excused provision as may be possible
and be legal, valid and enforceable, and (ii) the remaining part of
this Agreement shall not be affected thereby and shall continue in
full force and effect to the fullest extent provided by law.
20. Preparation of Agreement. It is acknowledged by each party that such
party either had separate and independent advice of counsel or the
opportunity to avail itself or himself of same. In light of these
facts it is acknowledged that no party shall be construed to be
solely responsible for the drafting hereof, and therefore any
ambiguity shall not be construed against any party as the alleged
draftsman of this Agreement.
21. Notices. All notices, requests, demands, and other communications
under this Agreement shall be in writing and shall be deemed to have
been duly given (i) on the date of service if served personally on
the party to whom notice is to be given, (ii) by private
airborne/overnight delivery service or on the fifth day after
mailing if mailed to the party to whom notice is to be given, by
first class mail, registered or certified, postage prepaid, and
properly addressed to the parties at their current address of
record.
22. Attorneys' Fees and Costs. In the event that any legal proceeding is
brought to enforce or interpret any of the rights or obligations
under this Agreement, the prevailing party shall be entitled to
recover reasonable attorneys' fees, costs and disbursements in
addition to any other relief to which the prevailing party may be
entitled.
23. Governing Law; Venue. This Agreement shall be governed by and
construed in accordance with the laws of the State of California.
Venue for a legal or equitable action between the Company and
Consultant, which relates to this Agreement shall be in the county
of Los Angeles.
24. Remedies. It is understood and agreed that this Agreement is
intended to confer a benefit, directly or indirectly, on the Company
and that any breach will result in termination of this agreement.
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25. Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original but all of
which shall constitute one and the same instrument.
IN WITNESS WHEREOF, the parties have executed this Agreement on the day
and year first indicated above.
COMPANY
NanoSignal Corporation
By: /s/ Xx. Xxxxxxxx Madoff
-------------------------------------
Xx. Xxxxxxxx Madoff, CEO
CONSULTANT
Sanitec Services of Hawaii, Inc.
By: /s/ Xxxxxx Xxxxx
-------------------------------------
Xxxxxx Xxxxx, President
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