SERVICES AGREEMENT
Exhibit
10.2
This
SERVICES AGREEMENT (“Agreement”) is made and entered into in duplicate and shall
be effective on November 4, 2009 (“Effective Date”), by and between CrowdGather,
Inc., a Nevada corporation with its principal place of business located at 00000
Xxxxxxx Xxxxxxxxx, Xxxxx 000, Xxxxxxxx Xxxxx, XX 00000
(“Corporation”), and EnzoTen Media Inc., located at 000 Xxxxx Xxxxx, Xxx X,
Xxxxxxxxx, XX 00000 (“Contractor”).
RECITALS
A. The
Corporation is an Internet company that specializes in monetizing a network of
online forums and message boards designed to engage, provide information to and
build community around users.
B. The
Corporation desires to engage Contractor as an independent contractor to provide
certain services related to monetizing the Corporation’s network of online
forums (“Services”), and Contractor desires to provide the Services for the
Corporation.
NOW,
THEREFORE, IN CONSIDERATION OF THE MUTUAL PROMISES, COVENANTS AND UNDERTAKINGS
HEREIN SPECIFIED AND FOR OTHER GOOD AND VALUABLE CONSIDERATION, THE RECEIPT AND
SUFFICIENCY OF WHICH ARE HEREBY ACKNOWLEDGED, WITH THE INTENT TO BE OBLIGATED
LEGALLY AND EQUITABLY, THE PARTIES AGREE AS FOLLOWS:
1. Term of
Agreement. The respective duties and obligations of the
parties shall commence on the Effective Date and shall continue for a period of
one (1) year from the Effective Date or until terminated by either of the
parties as specified in Section 8.
2. Services. The
Contractor shall provide the Services and certain other services to the
Corporation as determined by the management of the Corporation. The Contractor
agrees that Contractor will at all times loyally and conscientiously perform all
of its duties and obligations pursuant to the terms of this Agreement to the
best of its ability and experience.
3. No Management Power of
Contractor. The business affairs of the Corporation and the
operation of the business of the Corporation shall be conducted by the officers
and administrative staff and employees of the Corporation. The
Contractor shall not have any power or obligation of direction, management,
supervision or control of the officers, administrative staff or other employees
of the Corporation or otherwise be involved with the management of the business
of the Corporation during the term of this Agreement.
4. Authority to
Contract. The Contractor shall have no power to, and the
Contractor shall not, obligate the Corporation in any manner whatsoever to any
contract, agreement, undertaking, commitment or other obligation.
5. Compensation.
5.1 Standard Compensation.
During the term of this Agreement, the Corporation shall pay to
Contractor Three Thousand Dollars ($3,000) per month to be paid to Contractor
within ten (10) days of the first day of each month after the Effective Date of
this Agreement.
5.2 Bonus Compensation. The
Corporation shall pay to Contractor Five Thousand Dollars ($5,000) if,
after the initial twelve (12) months of this Agreement, (i) the
number of unique visitors to the websites listed in Exhibit A increases by one
hundred percent (100%) from the number of unique visitors to those websites as
compared to previous twelve (12) month period prior to this Agreement and (ii)
revenues derived from those websites remain consistent, or increase, during that
twelve (12) month period as compared to previous twelve (12) month
period.
6. Services of Contractor
are Exclusive. The Corporation and Contractor agree that
Contractor will devote all of his professional time to providing Services to the
Corporation and shall not provide Services to any other
corporation.
7. Relationship
Created. The Contractor is not an employee of the Corporation
for any purpose whatsoever, but is an independent contractor. The
Corporation is interested only in the results obtained by the Contractor. The
Contractor shall have the sole and exclusive control of the manner and means of
performing. All expenses and disbursements, including, but not limited to, those
for travel and maintenance, entertainment, office, clerical and general
administrative expenses, that may be incurred by the Contractor in connection
with this Agreement shall be borne and paid wholly and completely by the
Contractor, and the Corporation shall not be in any way responsible or liable
therefor.
7.1 Ownership of Work Product and New
Developments. Contractor agrees that all computer programs,
software, source codes, computations, data files, algorithms, techniques,
designs, plans, reports, specifications, drawings, inventions, processes, and
other information or items produced by Contractor concerning the development of
the Corporation’s products and services shall be considered works made for hire
by the Contractor for the Corporation and shall be the exclusive property of the
Corporation. All such work will be assigned to the Corporation as the sole and
exclusive property of the Corporation and the Corporation’s assigns, nominees
and successors, as well as any copyrights, patents or trademarks obtained by
Contractor while performing services under this Agreement concerning the
development of the Corporation’s products and services. On request
and at the Corporation’s expense, Contractor agrees to assist the Corporation
obtain patents and copyrights for any new developments. Such assistance includes
providing data, plans, specifications, descriptions, documentation, and other
information, as well as assisting the Corporation in completing any required
application or registration.
7.2 Non-Disclosure of Proprietary and
Confidential Information by Contractor. During the term of
this Agreement, Contractor may have access to Confidential Information (as used
in this Section 7.2, “Confidential Information” shall include, but not be
limited to, computer programs, software, source codes, computations, data files,
algorithms, techniques, processes, designs, specifications, drawings, charts,
plans, schematics, computer disks, magnetic tapes, books, files, records,
reports, documents, instruments, agreements, contracts, correspondence, letters,
memoranda, financial, accounting, sales, purchase and employment data, capital
structure information, corporate organizational information, identities, names
and addresses of shareholders, directors, officers, employees, contractors,
vendors, suppliers, customers, clients and all persons and entities associated
with Corporation, information pertaining to projects, projections, assumptions
and analyses, and all other data and information and similar items relating to
the business of Corporation and all other data and information and similar items
relating to Corporation of whatever kind or nature and whether or not prepared
or compiled by Corporation) or other information and data of a secret and
proprietary nature which the Corporation desires to keep confidential.
Confidential Information shall not include general or public
knowledge. General or public knowledge shall include such information
as may be discerned from an inspection of records expressly held open for public
inspection by any government or administrative agency, body or authority.
Contractor (and any of its officers, directors, shareholders, affiliates,
related entities, partners, agents and/or employees) agrees and acknowledges
that the Corporation has exclusive proprietary rights to all Confidential
Information, and Contractor hereby assigns to the Corporation all rights that he
might otherwise possess in any Confidential Information. Except as
required in the performance of Contractor's duties to the Corporation,
Contractor will not at any time during or after the term hereof, directly or
indirectly use, communicate, disclose, disseminate, lecture upon, publish
articles or otherwise put in the public domain, any Confidential
Information. Contractor agrees to deliver to the Corporation any and
all copies of Confidential Information in the possession or control of
Contractor upon the expiration or termination of this Agreement, or at any other
time upon request by the Corporation. Contractor will restrict the
possession, knowledge and use of the Confidential Information to its employees,
officers, director, shareholders, consultants, lawyers and entities controlled
by or controlling it (collectively, “Personnel”) that have a legitimate “need to
know” such Confidential Information in connection with the services to be
provided pursuant to the Agreement. Contractor will ensure that its Personnel
comply with this Agreement and Contractor will be liable for any breach of this
Agreement by its Personnel and will promptly notify the Corporation of any such
breach. The provisions of this section shall survive the termination
of this Agreement.
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7.3 Non-Competition and
Non-Circumvention by Contractor. In consideration and
recognition of the fact that Contractor has access to Confidential Information
under the terms and provisions of this Agreement and that the Corporation will
be introducing Contractor to various customers, partners and suppliers and
potential customers, partners and suppliers, Contractor represents, warrants and
covenants to the Corporation as follows:
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(a)
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Contractor
shall at no time disclose to any person, without the Corporation’s prior
written consent, any of the terms, conditions or provisions specified in
this Agreement unless such disclosure is lawfully required by any federal
governmental agency or is otherwise required to be disclosed by law or is
necessary in any legal proceeding regarding the subject matter of this
Agreement.
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(b)
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During
the term of this Agreement, Contractor shall not circumvent the
Corporation for the purpose of transacting any business with any person or
entity which business shall interfere with any relationship whatsoever
between such person or entity and the Corporation, or use any Confidential
Information to compete with the business of the Corporation. Contractor
shall not solicit any of the Corporation's employees, independent
contractors or agents for employment. Contractor shall not hire
or engage in any way, any enterprise or person that competes with, or is
engaged in a business substantially similar to, the business of the
Corporation.
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(c)
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Contractor
shall not, during the term hereof or for a period of six (6) months
immediately following the termination of this Agreement with Corporation,
either directly or indirectly (i) make known to any person, firm or
corporation the names or addresses of any of the Corporation’s clients or
any other information pertaining to them or the Corporation’s products or
services; (ii) call on, solicit, or take away, or attempt to call on,
solicit or take away any of the Corporation’s clients either on
Contractor's behalf or that of another person, firm or
corporation.
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(d)
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Contractor
shall not, during the term hereof or for a period of six (6) months
following such term, enter into an agreement or render services or advice
to, any business whose products, services or activities compete in whole
or in part with the products, services or activities of the
Corporation.
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(e)
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Contractor
acknowledges and agrees that the representations, warranties and covenants
made by Contractor and set forth in this section are material and that the
Corporation would not enter into this Agreement without Contractor's
making such representations, warranties and covenants to the
Corporation.
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(f)
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Contractor
acknowledges and agrees that any breach by Contractor of the
representations, warranties and covenants contained herein will cause
irreparable harm and loss to the Corporation, which harm and loss cannot
be reasonably or adequately compensated in damages in an action at
law. Therefore, Contractor expressly agrees that, in addition
to any other rights or remedies which the Corporation may possess, the
Corporation shall be entitled to injunctive and other equitable relief to
prevent or remedy a breach of the representations, warranties and
covenants made by Contractor
herein.
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(g)
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The
terms and provisions of this section shall survive the termination of this
Agreement for a period of six (6)
months.
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8.
Termination.
8.1 Termination by Contractor.
The Contractor may not terminate this Agreement within the initial six
(6) months of this Agreement. Contractor may terminate at any time by giving
thirty (30) days written notice to the Corporation after the initial six (6)
months of this Agreement. If Contractor terminates this Agreement for any
reason, the Corporation shall not be obligated to make any further payments
pursuant to Section 5.
8.2 Termination by Corporation. The
Corporation may terminate this Agreement at any time for Good Cause (as defined
below). A termination shall be for “Good Cause” if the Contractor, in the
subjective good faith opinion of the Corporation, (i) commits an act of fraud,
moral turpitude, misappropriation of funds or embezzlement; (ii) materially
breaches this Agreement or the Corporation’s written Code of Ethics as adopted
by the Board of Directors; (iii) commits a willful, reckless or grossly
negligent violation of any applicable state or federal law or regulation; (iv)
fails to or refuses (whether willful, reckless or negligent) to substantially
perform the responsibilities and duties specified herein (other than a failure
caused by temporary disability); provided, however, that no termination shall
occur on that basis unless the Corporation first provides Contractor with
written notice to cure, such notice to cure shall reasonably specify the acts or
omissions that constitute Contractor’s failure or refusal to perform
Contractor’s duties, and Contractor shall have reasonable opportunity (not to
exceed 10 days after the date of notice to cure) to correct Contractor’s failure
or refusal to perform Contractor’s duties, and the termination shall be
effective as of the date of written notice to cure; or (iv) commits any
other act that materially impairs the ability of the Corporation to conduct its
business. In the event that the Corporation terminates this Agreement for “Good
Cause”, the Corporation shall have no further obligations hereunder after the
effective date of said termination and the Corporation may thereafter seek to
recover any damages or other legal remedies it would have against the
Contractor.
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9. Indemnification. The
Contractor shall defend and hold the Corporation harmless from and
against, and shall indemnify the Corporation for, any loss, liability, damage,
judgment, penalty or expense (including administrative costs and expenses,
attorney’s fees and costs of defense) suffered or incurred by any person, or to
any property, in relation to any action or inaction taken by the
Contractor, whether intentional, negligent or otherwise, or by any of the
Contractor's affiliates, directors, officers, employees, representatives or
agents.
10. Notices. All
notices, requests, demands or other communications pursuant to this Agreement
shall be in writing or by facsimile transmission and shall be deemed to have
been duly given (i) on the date of service, if delivered in person or by
facsimile transmission (with the facsimile confirmation of transmission receipt
serving as confirmation of service); or (ii) 48 hours after mailing by first
class, registered or certified mail, postage prepaid, and properly addressed to
such address or addresses as may be provided by the parties hereto for such
purposes.
11. Entire
Agreement. This Agreement constitutes the final, complete, and
exclusive agreement between the parties with respect to the subject matter
hereof and supersedes all prior oral and written, and all contemporaneous oral
negotiations, agreements, and understandings. This Agreement may be amended only
by an instrument in writing which expressly refers to this Agreement and
specifically states that such instrument is intended to amend this Agreement and
is signed on behalf of both parties.
12. Execution in
Counterparts. This Agreement many be executed in several
counterparts and by facsimile, each of which shall be deemed an original, but
all of which shall constitute one and the same instrument.
13. Choice of Law and
Consent to Jurisdiction. All questions concerning the
validity, interpretation or performance of any of the terms, conditions and
provisions of this Agreement or of any of the rights or obligations of the
parties, shall be governed by, and resolved in accordance with, the laws of the
State of California. Any and all actions or proceedings, at law or in
equity, to enforce or interpret the provisions of this Agreement shall be
litigated in courts having situs within the State of California.
14. Assignability. Neither party shall sell,
assign, transfer, convey or encumber this Agreement or any right or interest in
this Agreement or pursuant to this Agreement, or suffer or permit any such sale,
assignment, transfer or encumbrance to occur by operation of law without the
prior written consent of the other party. In the event of any sale,
assignment, transfer or encumbrance consented to by such other party, the
transferee or such transferee's legal representative shall agree with such other
party in writing to assume personally, perform and be obligated by, the
covenants, obligations, warranties, representations, terms, conditions and
provisions specified in this Agreement. Notwithstanding the
foregoing, the Corporation may assign this Agreement without the prior consent
of the Corporation to an entity in connection with a merger, acquisition, or
reorganization.
15. Consent to
Agreement. By executing this Agreement, each party, for
himself, represents such party has read or caused to be read this Agreement in
all particulars, and consents to the rights, conditions, duties and
responsibilities imposed upon such party as specified in this
Agreement.
16. Attorney’s
Fees. In the event of a legal proceeding between the parties
to enforce a provision under this Agreement, the prevailing party to such action
shall be entitled to recover from the other party its reasonable attorney’s fees
and costs for participating in the legal action.
17. Severability. To the
extent any provision of this Agreement shall be determined to be unlawful or
otherwise unenforceable, in whole or in part, such determination shall not
affect the validity of the remainder of this Agreement, and this Agreement shall
be reformed to the extent necessary to carry out its provisions to the greatest
extent possible. In the absence of such reformation, such part of
such provision shall be considered deleted from this Agreement and the remainder
of such provision and of this Agreement shall be unaffected and shall continue
in full force and effect. In furtherance and not in limitation of the
foregoing, should the duration or geographical extent of, or business activities
covered by any provision of this Agreement be in excess of that which is valid
and enforceable under applicable law, then such provision shall be construed to
cover only that duration, extent or activities which may validly and enforceably
be covered. To the extent any provision of this Agreement shall be
declared invalid or unenforceable for any reason by any governmental or
regulatory authority in any jurisdiction, this Agreement (or provision thereof)
shall remain valid and enforceable in each other jurisdiction where it
applies. Both parties acknowledges the uncertainty of the law in this
respect and expressly stipulate that this Agreement shall be given the
construction that renders its provisions valid and enforceable to the maximum
extent (not exceeding its express terms) possible under applicable
law.
IN
WITNESS WHEREOF the parties have executed this Agreement in duplicate and in
multiple counterparts, each of which shall have the force and effect of an
original, on the date specified in the preamble of this Agreement.
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CORPORATION:
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CONTRACTOR:
EnzoTen
Media Inc.
a Nevada corporation
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By:
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/s/
Xxxxxx
Xxxxxxx
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/s/
Xxxxx
Skee
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Xxxxxx
Xxxxxxx
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Xxxxx
Skee
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Its:
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President
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President
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EXHIBIT
A
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xxxx://xxx.
xxxxxxxxxxxxxxx.xxx
xxxx://xxx.xxxxxxxxxxxxxxxxx.xxx
xxxx://xxx.xxxxxxxxxxxxxxxx.xxx
xxxx://xxx.xxxxxxxxxxxxxxx.xxx
xxxx://xxx.xxxxx0xxxxxxx.xxx
xxxx://xxx.xxxxxxxxx.xxx
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