EXHIBIT 10.7
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CONSULTATION AGREEMENT
THIS AGREEMENT is made as of the 1st day of January, 1996, at Carefree,
Arizona, between REDWOOD BROADCASTING, INC., a Colorado corporation (the
"Company"), and REDWOOD MICROCAP FUND, INC., a Colorado corporation
("Consultant").
In consideration of the mutual covenants, agreements and provisions
contained in this Agreement, the parties agree as follows:
1. Consultation.
The Company hereby retains the services of Consultant, as an
independent contractor and not as an employee, which retention is accepted and
agreed to be performed by Consultant, subject to and upon the terms and
conditions hereinbelow set forth.
2. Term.
The term of this Agreement shall begin on the 1st day of January,
1996, and shall terminate upon the expiration of fifteen (15) months from the
date hereof, and thereafter, if extended or renewed, upon thirty (30) days'
written notice given by either party to the other. Upon the termination of
this Agreement, the retention and agency, and Consultant's independent
contractor status, shall end, unless a new, separate written agreement shall
have been executed by all parties.
3. Consultant's Status.
It is understood and agreed that Consultant shall be at all times and
for all purposes hereunder an independent contractor to the Company and under
no circumstances shall be deemed an employee, partner or joint venturer of or
with the Company. Consultant agrees that it shall not directly or indirectly
imply or represent to others, or permit another to imply or represent to others
that Consultant has any authority to act for, represent or bind the Company in
any matter by virtue of this Agreement. Consultant expressly agrees to
indemnify and hold harmless the Company for any damages which may be sustained
by the Company as a result of or arising out of any breach of the covenants set
forth in this Section 3.0.
4. Services of Consultant.
4.1. Upon the request of the Company, Consultant shall perform
general management and administrative services for the Company as directed by
its executive officers.
4.2. In performing hereunder, Consultant may, but need not, use the
facilities or resources of the Company. Consultant shall be solely and
exclusively responsible for determining when, where, how and by whom the
services are to be performed hereunder, subject only to such matters as may be
specifically addressed in written communications from the Company.
4.3. Consultant agrees to exercise the highest degree of care, skill
and diligence in the performance of its services hereunder and shall perform
all services in a good and workmanlike fashion.
5. Compensation.
5.1. For all services to be rendered by Consultant pursuant to
Section 4 above, Consultant shall be paid as compensation the sum of $2,500.00
per month throughout the term of this Agreement and any extension thereof.
Consultant shall be entitled to reimbursement for any reasonable costs or
expenses incurred in connection with performing the services hereunder,
provided that any such costs or expenses were previously authorized in writing
by the Company and are appropriately substantiated in writing by invoice or
other documentation.
5.2. Consultant shall keep accurate records showing the quantity and
date of time devoted to the services provided for herein and a description
thereof. The Company shall make payment to the Consultant subject to the terms
and conditions hereinbelow set forth on or before the fifth day of each month
for services rendered during the preceding month.
6. Performance and Other Engagements.
Throughout the term of this Agreement, it is understood that
Consultant will only provide services to the Company on a part-time basis and,
subject to the provisions concerning competition hereinbelow set forth, may
perform the same or similar services for other persons or entities not
inconsistent with its undertakings hereunder.
7. Work Product.
7.1. All trade secrets, know-how, confidential information,
copyrightable material, inventions, discoveries, and improvements, whether
patentable or unpatentable, made, devised, or discovered by Consultant pursuant
to or as a result of services rendered for the Company, relating or pertaining
in any way to the business of the Company, shall be promptly disclosed in
writing to an officer of the Company and are to redound to the benefit of the
Company and become and remain its sole and exclusive property. Consultant
agrees to execute and cause its employees to execute any assignments to the
Company or its nominee of this entire right, title and interest in and/or right
to exploit any such trade secrets, copyrightable material, inventions,
discoveries, and improvements, and to execute and cause its employees to
execute any other instruments and documents requisite or desirable in applying
for and obtaining patents and/or copyrights, at the cost of the Company, with
respect thereto in the United States and in all foreign countries, that may be
requested by the Company. Without in any way limiting the generality of the
foregoing, Consultant agrees that all copyrightable and/or patentable materials
generated or developed by it or its employees for the Company, including, but
not limited to, source codes and/or computer programs and documentation
pertaining thereto, shall be considered the property and copyrights of the
Company, and the Company shall have the right to register and hold in its own
name all copyrights and/or patents issuable from such materials. Consultant
further agrees, whether or not engaged by the Company, to cooperate to the
extent and in the manner requested by the Company in the prosecution or defense
of any patent/copyright claims or any litigation or other proceeding involving
any inventions, trade secrets, processes, discoveries, or improvements covered
by this Agreement, but all expense thereof shall be paid by the Company.
8. Confidentiality.
8.1. Consultant for itself and its employees covenants with the Company
that all information concerning its computer software programs, including their
source code, object code, database, visual screen display, structure, sequence,
organization, look and feel, as well as the methods, processes, and formulas
embodied therein, and the Company's research, markets, plans, strategies,
distributors, dealers, customers, clients and end users collectively are and
constitute the trade secrets and confidential proprietary information of the
Company. Consultant covenants and agrees for itself and its Consultants that
it will not (except as required in the course of its services for the Company),
during the term of this Agreement or thereafter, communicate or divulge to, or
use for the benefit of itself or any other person, firm, association, or
corporation, without the consent of the Company, any trade secrets or
confidential and proprietary information of the Company or other confidential
matters possessed, owned, or used by the Company that may be communicated to,
acquired by, or learned of by it or its employees in the course of or as a
result of its services for the Company. All records, disks, tapes, stored
information on any medium, files, memoranda, reports, price lists, customer
lists, drawings, plans, sketches, documents, equipment, and the like, relating
to the business of the Company, which Consultant or its employees shall use or
prepare or come into contact with, shall remain the sole property of the
Company.
9. Affiliates of Consultant.
Consultant agrees that the Covenants set forth in Sections 7, 8, 9,
10 and 11 of this Agreement are applicable to and binding upon any and all of
Consultant's officers, directors, shareholders, agents, and employees
(hereafter "Affiliates"). Consultant agrees that it will not permit any
Affiliate to perform services hereunder nor permit the disclosure of any the
Company trade secret, proprietary or confidential information to any Affiliate
until and unless such Affiliate agrees in writing to be bound by the terms and
conditions of Sections 7, 8, 9, 10 and 11 of this Agreement.
10. Attorneys' Fees.
In the event there is any litigation or arbitration between the
parties concerning this Agreement, the successful party shall be awarded
reasonable attorneys' fees and litigation or arbitration costs, including the
attorneys' fees and costs incurred in the collection of any judgment.
11. Notices.
All notices required or permitted hereunder shall be sufficient if
delivered personally or mailed to the parties at the address set forth below or
at such other address as either party may designate in writing from time to
time. Any notice by mailing shall be effective 48 hours after it has been
deposited in the United States certified mail, return receipt requested, duly
addressed and with postage prepaid.
12. Partial Invalidity.
If any provisions of this Agreement are in violation of any statute
or rule of law of any state or district in which it may be sought to be
enforced, then such provisions shall be deemed null and void only to the extent
that they may be in violation thereof, but without invalidating the remaining
provisions.
13. Binding Effect.
This Agreement shall be binding upon and inure to the benefit of the
respective parties hereto, their heirs, personal representatives, successors
and assigns.
14. Waiver.
No waiver of any breach of any one of the agreements, terms,
conditions or covenants of this Agreement by the Company shall be deemed to
imply or constitute a waiver of any other agreement, term, condition or
covenants of this Agreement. The failure of either party to insist on strict
performance of any agreement, term, condition or covenant, herein set forth,
shall not constitute or become construed as a waiver of the rights of either or
the other thereafter to enforce any other default of such agreement, term,
condition or covenant; neither shall such failure to insist upon strict
performance be deemed sufficient grounds to enable either party hereto to
forego or subvert or otherwise disregard any other agreement, term, condition
or covenants of this Agreement.
15. Governing Law.
This Agreement and the rights and duties of the parties shall be
construed enforced in accordance with the laws of the State of Colorado.
16. Fax/Counterparts.
This Agreement may be executed by telex, telecopy or other facsimile
transmission, and may be executed in counterparts, each of which shall be
deemed an original, but all of which shall together constitute one agreement.
17. Entire Agreement.
This Agreement constitutes the entire agreement of the parties hereto
with respect to the subject matter hereof. There are no representations,
warranties, conditions or obligations except as herein specifically provided.
Any amendment or modification hereof must be in writing.
IN WITNESS WHEREOF, the parties to this Agreement have duly executed
effective on the day and year first above written.
REDWOOD BROADCASTING, INC., a Colorado
corporation
Attest:
-------------------------------- By: ----------------------------------
Secretary
REDWOOD MICROCAP FUND, INC., a Colorado
corporation
Attest:
------------------------------- By: -----------------------------------
Secretary
