EXHIBIT 10.2
CONSULTING AGREEMENT
THIS CONSULTING AGREEMENT (this "Agreement") is entered into this 26
day of August, 2002, by and between Rushmore Financial Group, Inc., a Texas
corporation, located at One Galleria Tower, 00000 Xxxx Xxxx, 0xx Xxxxx, Xxxxxx,
Xxxxx 00000, ("Rushmore") and Xxxxx Xxxxxxx, dba ShugSoft ("Consultant"). In
consideration for consulting fees and other good and valuable consideration, the
receipt of which is hereby acknowledged, and for the provision of access to
Rushmore's confidential information and valuable trade secrets, Consultant is
willing to enter into this Agreement for the protection of Rushmore's business
property and goodwill. Therefore, Consultant and Rushmore hereby agree as
follows:
1. Access to Confidential Information. In the course of
Consultant's performance of the duties and responsibilities associated with
Consultant's services performed for Rushmore (the "Consulting Services"),
Consultant will have access to Confidential Information. As used in this
Agreement, "Confidential Information" shall mean any and all information,
whether in oral, visual or written form, that is: (i) concerning or associated
with Rushmore, its customers, or other third parties who have entrusted
information to Rushmore that Rushmore, its customers, or such other third
parties consider confidential or proprietary; (ii) related to the Consulting
Services or this Agreement, including, but not limited to, information
concerning technical, administrative, management, financial, or marketing
activities of, or relating in any way to, Rushmore, its customers, or its
business (such as design, manufacturing and procurement specifications,
procedures, manufacturing processes, information processing processes, marketing
plans and strategies, customer names, financial data, employee and salary
information) and physical embodiments of such information (such as software,
drawings, specification sheets, recording media for machine information
processing systems, documentation, contracts, reports, customer lists, manuals,
quotations, correspondence, and samples).
2. Treatment of Confidential Information. Consultant will
maintain the Confidential Information in strictest confidence. Consultant
acknowledges that the Confidential Information is a valuable commercial asset of
Rushmore and/or its customers and/or third parties, and unauthorized disclosure
or use of the Confidential Information would be extremely damaging to Rushmore
and/or such customers and/or third parties. Both during and after the period of
performing Consulting Services, Consultant will not disclose or deliver to
anyone, whether employed by or outside Rushmore, except as expressly authorized
by Rushmore, or use in any way other than in Rushmore's business, any
Confidential Information. These restrictions do not apply to any information
generally available to the public or any information properly obtained from a
completely independent source.
3. Removal and Return of Confidential Information. Consultant
will not remove any material covered by the above paragraphs from Rushmore's
premises or from any other third party premises or make any copies of such
material except for use expressly authorized by Rushmore in connection with
Rushmore's business. Consultant will return to Rushmore all such material and
copies at any time upon the request of Rushmore and, without such a request,
upon termination of Consultant providing Consulting Services for Rushmore.
Consultant Initials: /s/ R.C. Rushmore Initials: /s/ X.X.
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4. Non-Disclosure of Confidential Information of Others.
Consultant agrees that Consultant will not, during the course of providing
Consulting Services, breach any agreement or other obligation to keep in
confidence confidential or proprietary information, knowledge, or data acquired
by him in confidence or in trust prior to beginning Consulting Services for
Rushmore. Consultant further agrees not to disclose to Rushmore, or induce
Rushmore to use, any confidential or proprietary information or material
belonging to any other company acquired by Consultant in confidence or in trust
from such other company.
5. Disclosure and Assignment of Inventions.
a. Consultant agrees that any inventions, designs,
improvements and discoveries made by Consultant during the course of
providing Consulting Services, solely or jointly with others, which are
made with Rushmore's equipment, supplies, facilities, trade secrets, or
time, or which relate to the business of Rushmore or Rushmore's actual
or anticipated research or development, or which result from any
Consulting Services performed by Consultant for Rushmore (collectively
"Inventions"), shall be the exclusive property of Rushmore. Consultant
agrees to promptly and fully inform and disclose to Rushmore all such
Inventions and Consultant agrees to assign and hereby assigns such
Inventions to Rushmore. Consultant also agrees that Rushmore shall have
the right to keep such Inventions as trade secrets, if Rushmore
chooses.
b. At any time during or after the term in which
Consultant provides Consulting Services, Consultant shall assist
Rushmore in obtaining and enforcing patents in the United States and in
all foreign countries on all Inventions deemed patentable by Rushmore,
and shall provide all testimony and execute all documents, papers,
affidavits and assignments, and do all things necessary to obtain
letters patent, to vest Rushmore with full and extensive titles to the
patents, and to protect the patents against infringement by others.
c. For purposes of this Section, an Invention is deemed
to have been made during the course of providing Consulting Services
if, during such period, the Invention was conceived or first actually
reduced to practice and Consultant agrees that any patent application
filed by Consultant within one year after termination of Consulting
Services shall be presumed to relate to an Invention made during the
course of providing Consulting Services, unless Consultant provides
evidence to the contrary.
Consultant Initials: /s/ R.C. Rushmore Initials: /s/ X.X.
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6. Disclosure and Assignment of Copyrights.
a. Consultant acknowledges that all works of authorship,
including without limitation software programs, produced in the course
of providing Consulting Services for Rushmore under this Agreement are
works produced for hire and the property of Rushmore, including without
limitation, any copyrights on those works. Consultant agrees to
promptly and fully inform and disclose to Rushmore all such works of
authorship.
b. If any of the works of authorship may not, by
operation of law or agreement, be considered work made by Consultant
for hire for Rushmore (or if ownership of all rights therein do not
otherwise vest exclusively in Rushmore), Consultant agrees to assign,
and upon creation thereof hereby automatically assigns, without further
consideration, the ownership thereof to Rushmore. Consultant agrees to
assign and hereby assigns to Rushmore the copyright in any
modifications, enhancements or new software programs or other works of
authorship which relate to the business of Rushmore and which are
developed by Consultant during the term in which Consultant provides
Consulting Services, whether or not Consultant utilizes Rushmore's
resources, facilities or time and whether or not developed at
Rushmore's direction. Consultant also agrees to assign and hereby
assigns to Rushmore the copyright in any documentation prepared to
support the use, or operation of the software programs. Consultant
hereby irrevocably relinquishes for the benefit of Rushmore and its
assigns any moral rights in the works of authorship recognized by
applicable law.
c. Consultant agrees to assist Rushmore at any time,
during or after the term in which Consultant provides Consulting
Services, in the preparation, execution, and delivery of documents,
papers, affidavits, and assignments within the scope and intent of this
Agreement required to obtain and enforce copyrights in this or in other
countries or in connection with such other proceedings as may be
necessary to vest title in such works of authorship in Rushmore, and to
protect the copyrights against infringement by others including, but
not limited to, providing testimony to assist with such protection.
7. Publication of Consultant Writings. Consultant will not submit
any writings for publication or deliver any speech that contains any information
relating to the business of Rushmore, unless advanced written clearance from an
authorized representative of Rushmore is received.
8. Non-Solicitation Agreement. In consideration of access to
Confidential Information, consulting fees and training provided to Consultant
and for other good and valuable consideration provided by Rushmore to
Consultant, the receipt and sufficiency of which are hereby acknowledged,
Consultant hereby agrees as follows:
Consultant Initials: /s/ R.C. Rushmore Initials: /s/ X.X.
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a. Non-Solicitation of Employees. During the period in
which Consulting Services are provided and for a period of one (1) year
following the date of the termination of Consulting Services,
Consultant shall not, on Consultant's own behalf or on behalf of any
other person or business entity, hire, solicit, seek to hire, or offer
employment to any person who is, during such time frame, an employee of
Rushmore, or in any other manner attempt, directly or indirectly, to
influence, induce, or encourage any employee of Rushmore to leave the
employment of Rushmore.
b. Non-Solicitation of Customers and Business
Relationships. During the period in which Consulting Services are
provided and for a period of one (1) year following the date of the
termination of Consulting Services, Consultant will not directly or
indirectly solicit, for the purpose of engaging in any business which
is the same as or similar to the business in which Rushmore is engaged,
any individual or entity with whom Rushmore has or had a customer or
business relationship during the period in which Consulting Services
are provided, and with whom Consultant had contact with by virtue of
Consultant's position with Rushmore.
9. Breach. Consultant acknowledges that Consultant is subject to
immediate dismissal from providing Consulting Services for any breach of this
Agreement and that such a dismissal will not relieve him from any continuing
obligations under this Agreement or from the imposition by a court of any
judicial remedies, such as money damages and/or an injunction for such a breach.
10. Severability. If any term of this Agreement is found to be
unlawful or unenforceable in any respect, the courts shall enforce such term, in
whole or in part, and all other terms of this Agreement, to the fullest extent
possible, and the remainder of the Agreement shall not be affected.
11. Injunctive Relief and Damages. Consultant recognizes that the
obligations contained in this Agreement are a reasonable and necessary
protection of the business interests of Rushmore and its customers and that any
breach of the obligations under this Agreement would cause substantial,
irreparable, and immediate harm to Rushmore. Damages would be difficult if not
impossible to ascertain, and the faithful observance of all terms of this
Agreement is an essential condition to Consultant's consulting relationship with
Rushmore. In light of these considerations, Rushmore intends to seek an
immediate injunction to prevent any breach and/or threatened breach of this
Agreement and/or to compel specific performance of this Agreement. Consultant
acknowledges that an injunction would be appropriate to enforce the terms of
this Agreement.
12. Entire Agreement. This Agreement represents the entire
understanding and agreement of the parties and supersedes all prior
communications, agreements and understandings relating to the subject matter
hereof. The provisions of this Agreement may not be modified, amended nor
waived, except by a written instrument duly executed by both parties, or by a
court of competent jurisdiction in accordance with paragraph 10.
Consultant Initials: /s/ R.C. Rushmore Initials: /s/ X.X.
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This Agreement may not be assigned by either party without the prior written
consent of the other.
13. Waiver. The failure of either Rushmore or Consultant to insist
in one or more instances upon performance of any of the terms or conditions of
this Agreement shall not be construed as a waiver of future performance required
by such term or condition, and the obligations of either party with respect to
the term or condition shall continue in effect as if no forbearance had
occurred. No covenant or condition of this Agreement shall be waived except by
the written consent of the waiving party.
14. Headings. The paragraph numbers and headings in this Agreement
are inserted for convenience only and are not part of the Agreement.
15. Choice of Law and Forum. THIS AGREEMENT IS MADE SUBJECT TO AND
SHALL BE CONSTRUED UNDER AND IN ACCORDANCE WITH THE LAWS OF THE STATE OF TEXAS
WITHOUT GIVING EFFECT TO PRINCIPLES OF CONFLICTS OF LAWS. ANY ACTION TO ENFORCE
OR CONSTRUE THE PROVISIONS OF THIS AGREEMENT SHALL BE BROUGHT IN THE STATE OR
FEDERAL COURTS IN DALLAS COUNTY, TEXAS, AND BOTH PARTIES HEREBY SUBMIT TO THE
JURISDICTION THEREOF AND AGREE THAT VENUE IS PROPER THEREIN.
16. Survival. The obligations of Consultant under this Agreement
shall continue whether or not the Consulting Services shall be terminated
voluntarily or involuntarily, with or without cause.
Consultant Initials: /s/ R.C. Rushmore Initials: /s/ X.X.
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17. Assignment. This Agreement and the assignments contained
herein shall inure to the benefit of Rushmore, Rushmore's successors in business
and assigns and be binding upon Consultant, Consultant's heirs, executors,
administrators, assigns and legal representatives.
EXECUTED in duplicate as of the day and year first written above.
Consultant: /s/ Xxxxx Xxxxxxx
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Xxxxx Xxxxxxx, d.b.a. ShugSoft
Name:
Rushmore Financial Group, Inc.
One Galleria Tower
00000 Xxxx Xxxx, 0xx Xxxxx
Xxxxxx, Xxxxx 00000
By: /s/ X.X. Xxxxx Xxxxx, Xx.
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Name: X.X. Xxxxx Xxxxx, Xx.
Title: Chief Executive Officer
Consultant Initials: /s/ R.C. Rushmore Initials: /s/ X.X.
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ADDENDUM
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This Addendum, dated August 28, 2002, is to be attached to and become a part of
the Consulting Agreement between Xxxxx Xxxxxxx and Rushmore Financial Group,
Inc., (RFGI), dated August 26, 2002.
Consultant's programming compensation:
Consultant will be paid $1,950 per day for 10 days to complete the Back Office
Administrative Tool as outline by Rushmore to be paid $6000 in cash and $13,500
in RFGI common stock at the rate of $0.15 or a total of 90,000 shares.
The issued stock will be S8 registered stock from the current offering of the
Company on a best efforts basis to be delivered to Consultant by September 12th
or as soon a possible.
Any additional work will be agreed upon in advance and will be billed at the
rate of $150.00 per hour (40% in cash and 60% in RFGI stock).
In addition, Consultant will have the costs of his airline flights reimbursed.
/s/ X.X. Xxxxx Xxxxx, Xx.
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Rushmore Financial Group, Inc.
X.X. Xxxxx Xxxxx, Xx., President
/s/ Xxxxx Xxxxxxx
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ShugSoft
By: Xxxxx Xxxxxxx
