SERVICES AGREEMENT
Exhibit
10.2
This
Services Agreement (“Agreement”) is entered into by and between Winning
Performance
and
specifically Xxxxx Xxxxxxxxxx (collectively “WP”) and Xxxxxxxx.xxx,
Inc. (“Company”).
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1.
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Effective
Date.
This Agreement shall take effect October 31,
2005.
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2.
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Scope
of Engagement.
WP, through the special services of Xxxxx Xxxxxxxxxx, is engaged
to
provide services as Chief Financial Officer of Company, including
establishing, overseeing and managing all accounting systems and
processes, assisting with corporate filings as needed, supporting
merger
and acquisition activities, and other related projects as may be
assigned
by the Company.
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3.
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Contracted
Staff:
WP’s contractor assigned to this engagement is Xxxxx Xxxxxxxxxx whose
services are considered unique by
Company.
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4.
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Fees:
Services of the WP(s) under this agreement will be billed on a weekly
basis at the hourly rate of $90.00, plus any reasonable and customary
pre-approved out-of-pocket expenses (i.e. mileage, hotel, etc. if
applicable).
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5.
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Payment
Terms:
Company agrees to pay all xxxxxxxx within five (5) business days
of
receipt of WP’s weekly billing statement.
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6.
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Termination.
Starting as of the Effective Date, WP will provide services, and
will
continue until either party informs the other of its desire to terminate
this agreement. Either party may terminate this Agreement upon thirty
(30)
days written notice to the other party. If WP terminates this Agreement
at
any time, it shall execute any and all documents that may be required
by
any regulatory body or under Federal and/or state securities laws
in
connection with such termination or withdrawal by a Chief Financial
Officer or responsible financial person of a publicly traded company,
if
any. When either party or the parties mutually terminate this Agreement,
all unpaid charges assessed prior to termination by WP, if any, will
immediately become due and payable.
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7.
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Trade
Secrets/Confidentiality.
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7.1
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Disclosure.
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(a)
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WP
agrees to disclose promptly in writing to the Company, or any person
designated by the Company all work product, including but not limited
to
computer programs, processes, know-how and other copyrightable material,
that is conceived, developed, made or reduced to practice by WP within
the
scope of the Project.
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(b)
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WP
represents that his or her performance of all the terms of this Agreement
does not and will not breach any agreement to keep in confidence
proprietary information, knowledge or data of a third party and WP
will
not disclose to the Company, or induce the Company to use, any
confidential or proprietary information belonging to third parties
unless
such use or disclosure is authorized in writing by such
owners.
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(c)
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WP
represents that any inventions or copyrighted works relating to the
Company’s actual or anticipated business or research and development which
WP has conceived, developed, made, or reduced to practice at the
time of
signing this Agreement, have been disclosed in writing to the Company
pursuant to that certain Proprietary Rights and Inventions Agreement.
These inventions and copyrighted works are not assigned to the Company.
However, if WP uses such inventions and copyrighted works in the
Project,
WP grants to the Company a royalty-free, world, perpetual, irrevocable,
non-exclusive license, with the right to sublicense, to reproduce,
distribute, modify, publicly perform and publicly display such inventions
and copyrighted works in the Company’s products based on the
Project.
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7.2
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Confidential
Information. WP agrees during the term of
this Agreement and thereafter to take all steps reasonably necessary
to
hold in trust and confidence information which he knows or has reason
to
know is considered confidential by Company ("Confidential Information").
WP agrees to use the Confidential Information solely to perform the
services hereunder. Confidential Information includes, but is not
limited
to, technical and business information relating to Company's inventions
or
products, research and development, manufacturing and engineering
processes, and future business plans. WP's obliga-tions with respect
to
the Confidential Information also extend to any third party's propri-etary
or confidential information disclosed to WP in the course of providing
services to Company. This obligation shall not extend to any information
which becomes generally known to the public without breach of this
Agreement. This obligation shall survive the ter-mination of this
Agreement.
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| 7.3 |
No
Conflict of Interest.
WP
agrees during the term of this Agreement not to accept work or enter
into
a contract or accept an obligation, inconsistent or incompatible
with WP's
obligations or the scope of services rendered for Company under this
Agreement including but not limited to any work for other company’s
working on the development technology products and/or services such
as
Company’s. Company does understand and agree that WP may maintain
employment outside the scope of this Agreement with other
parties.
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| 7.4 |
Return
of Company's Property.
WP
acknowledges that Company's sole and exclusive property includes
all
documents, such as drawings, manuals, notebooks, reports, sketches,
records, computer programs, employee lists, customer lists and the
like in
his custody or possession, whether delivered to WP by Company or
made by
WP in the perfor-xxxxx of services under this Agreement, relating
to the
business activities of Company or its customers or suppliers and
containing any information or data whatsoever, whether or not Confidential
Information. WP agrees to deliver promptly all of Company's property
and
all copies of WP’s property in WP's possession to Company at any time upon
Company's request.
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| 7.5 |
Work
for Hire; Ownership of Work
Product.
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| (a) |
“Work
Product” means the computer software, designs, discoveries, works of
authorship, formulae, processes, manufacturing techniques, graphic
design,
interfaces, inventions, improvements and ideas solely or jointly
conceived, developed or reduced to practice by WP during the Agreement
and
under the Agreement only. The Company and the WP understand, acknowledge
and agree that all of WP’s work product shall be deemed “work for hire”
within the meaning of the U.S. Copyright Laws and that the Company
shall
be deemed the Author thereof and Owner of all rights therein and
thereto,
including without limitation the copyright thereof and all derivative
works thereto throughout the world in all media in
perpetuity.
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| (b) |
To
the extent any of WP’s work product is not deemed “work for hire”, WP
hereby irrevocably assigns, conveys and otherwise transfers to the
Company, and its respective successors and assigns, all rights, title
and
interest worldwide in and to the Work Product and all proprietary
rights
therein, including, without limitation, all copyrights, trademarks,
design
patents, trade secret rights, moral rights, and all contract and
licensing
rights, and all claims and causes of action of any kind with respect
to
any of the foregoing, whether now known or hereafter to become known.
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| (c) |
In
the event WP has any rights in and to the Work Product that cannot
be
assigned to the Company, WP hereby unconditionally and irrevocably
waives
the enforcement of all such rights, and all claims and causes of
action of
any kind with respect to any of the foregoing against the Company,
its
distributors and customers, whether now known or hereafter to become
known
and agrees, at the request and expense of the Company and its respective
successors and assigns, to consent to and join in any action to enforce
such rights and to procure a waiver of such rights from the holders
of
such rights.
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| (d) |
In
the event WP has any rights in and to the Work Product that cannot
be
assigned to the Company and cannot be waived, WP hereby grants to
Company,
and its respective successors and assigns, an exclusive, worldwide,
royalty-free license during the term of the rights to reproduce,
distribute, modify, publicly perform and publicly display, with the
right
to sublicense and assign such rights in and to the Work Product including,
without limitation the right to use in any way whatsoever that Work
Product. WP retains no rights to use the Work Product and agrees
not to
challenge the validity of the ownership by the Company in the Work
Product.
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| (e) |
WP
agrees to assist the Company in any reasonable manner to obtain and
enforce for the Company’s benefit patents, copyrights, and other property
rights covering the Work Product in any and all countries. WP agrees
to
execute, when requested, patent, copyright, or similar applications
and
assignments to the Company, and any other lawful documents deemed
necessary by the Company to carry out the purpose of this Agreement.
WP
further agrees that the obligations and undertaking stated in this
Section
5.5 (E) will continue beyond the termination of WP’s service to the
Company.
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| (f) |
In
the event that the Company is unable for any reason whatsoever to
secure
WP’s signature to any lawful and necessary document required to apply
for
or execute any patent, copyright, or other applications with respect
to
any Work Product (including improvements, renewals, extensions,
continuations, divisions or continuations in part thereof), WP hereby
irrevocably designates and appoints the Company and its duly authorized
officers and agents as his or her agents and attorneys-in-fact to
act for
and in his or her behalf and instead of WP, to execute and file any
such
application and to do all other lawfully permitted acts to further
the
prosecution and issuance of patents, copyrights or other rights therein
with the same legal force and effect as if executed by
WP.
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8.
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Disclaimer
of Guarantee.
Nothing in the Agreement and nothing in WP’s statements to Company will be
construed as a promise or guarantee about the success of Company’s
engagements or projects. WP’s statements and advice are expressions of
opinion only.
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9.
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Disputes,
Jurisdiction, Venue.
In the event any dispute arises from this Agreement, such matter
will be
resolved, through arbitration or otherwise, in Los Angeles County,
California. The laws of the state of California shall control this
Agreement and the parties waive the right to establish a different
choice
of law, jurisdiction or venue. In the event of a dispute, the prevailing
party shall be entitled to payment of reasonable attorney’s fees and
costs, including all costs incurred due to attempts to collect unpaid
bills.
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Winning
Performance DBA
By:
/s/
Xxxxx X. Xxxxxxxxxx
Xxxxx
X.
Xxxxxxxxxx
I
have
read and understand the foregoing terms and agree to them as of the date below.
XXXXXXXX.XXX,
Inc. (“Company”)
By: /s/
Xxxx Xxxxxxxx
Xxxx
Xxxxxxxx
Title: CEO
Dated:
October 31, 2005
