INDEPENDENT CONTRACTOR AGREEMENT
This
Agreement is entered into on June 4, 2008 (the “Effective Date”) by and between
Xxxxxxx Xxxxxxx (“Contractor”) and GoFish Corporation, a Nevada corporation
(“Company”) (collectively, the “Parties”).
1. CONTRACTOR’S
SERVICES
(a) Contractor
agrees to perform such services (“Services”) as may reasonably be requested in
writing by the Company, not to exceed twenty hours per month.
(b) Contractor
may, at Contractor’s own expense, use employees or other subcontractors to
perform the Services under this Agreement.
2. COMPENSATION
Company
agrees to pay Contractor one hundred twenty thousand dollars ($120,000) (the
“Fee”) for the Services, payable in monthly installments of ten thousand dollars
($10,000),
via
wire transfer on the dates set forth in Schedule A.
In
addition, the Company will grant Contractor an option (the “Option”) to purchase
three hundred thousand shares of the Company’s common stock, par value $0.001,
(the “Common Stock”) with an exercise price equal to the closing price of the
Common Stock on the date the Company’s board of directors approves the
Option.
3. EXPENSES
Company
agrees to reimburse Contractor for all itemized expenses
reasonably incurred and previously approved in the performance of the Services
upon production of supporting receipts and documentation.
4. TERM
OF AGREEMENT
(a) The
term
of this Agreement will begin on the Effective Date and end after one
year.
(b) If
this
Agreement is terminated prior to the end of the term of this Agreement by
the
Company for any reason, Contractor shall be entitled to immediate payment
of the
entire unpaid portion of the Fee. Thereafter, Company shall owe Contractor
no
further amounts or obligations.
5. DEFAULT
(a) If
either
party defaults in the performance of this Agreement or materially breaches
any
of its provisions, the nonbreaching party may terminate this Agreement by
giving
written notification to the breaching party. Termination shall be effective
immediately on receipt of the written notification by the breaching party,
or
five days after mailing of the notice to the address set forth in the notice
provisions below, whichever occurs first.
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(b) This
Agreement terminates automatically on the occurrence of any of the following
events: (i) Appointment of a receiver, liquidator, or trustee for either
Party
by decree of competent authority in connection with any adjudication or
determination by such authority that either Party is bankrupt or insolvent;
(ii) the filing by either Party of a petition in voluntary bankruptcy, the
making of an assignment for the benefit of its creditors, or the entering
into
of a composition with its creditors.
6. NOTICES
(a) Any
notice under this Agreement must be in writing and shall be effective upon
delivery by hand, by facsimile or one business day after delivery through
a
nationally recognized courier service addressed to Company or to Contractor
at
the corresponding address below. Contractor shall be obligated to notify
Company
in writing of any change in Contractor’s address. Notice of change of address
shall be effective only when done in accordance with this
Paragraph.
Company’s
Notice Address:
000
Xxxxxxx Xx., 00xx
Xxxxx
Xxx
Xxxxxxxxx, XX 00000
000-000-0000
Contractor’s
Notice Address:
Xxxxxxx
Xxxxxxx
[ADDRESS
OMITTED]
7. RELATIONSHIP
OF THE PARTIES
(a) Contractor
enters into this agreement as, and shall continue to be, an independent
contractor. In no circumstance shall Contractor look to Company as Contractor’s
employer, partner, agent, or principal. Neither Contractor nor any employee
of
Contractor (which for purposes of this Paragraph shall be included in the
term
“Contractor”) shall be entitled to any benefits accorded to Company’s employees,
including workers’ compensation, disability insurance, retirement plans, or
vacation or sick pay. Contractor’s exclusion from benefit programs maintained by
Company is a material component of the terms of compensation negotiated by
the
Parties, and is not premised on Contractor’s status as a non-employee with
respect to Company. To the extent that Contractor may become eligible for
any
benefit programs maintained by Company (regardless of the timing of or reason
for eligibility), Contractor hereby waives Contractor’s right to participate in
the programs. Contractor’s waiver is not conditioned on any representation or
assumption concerning Contractor’s status under the common law test. Contractor
also agrees that, consistent with Contractor’s independent contractor status,
Contractor will not apply for any government-sponsored benefits that are
intended to apply to employees, including, but not limited to, unemployment
benefits.
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(b) Contractor
shall be responsible for providing, at Contractor’s expense and in Contractor’s
name, disability, workers’ compensation, or other insurance as well as licenses
and permits usual or necessary for performing the Services. Contractor shall
pay, when and as due, any and all taxes incurred as a result of Contractor’s
compensation, including estimated taxes and payroll taxes, and shall provide
Company with proof of payment on demand. Contractor indemnifies Company for
any
claims, losses, costs, fees, liabilities, damages, or injuries suffered by
Company arising from Contractor’s breach of the provisions of this Paragraph 7.
(c) Contractor
and Company shall provide to each other upon request any information reasonably
necessary to determine their obligations under this Agreement, to fulfill
the
purposes of the Services, or to maintain accurate records.
8. PLACE
OF WORK
Contractor
is generally free to perform Contractor’s Services at a location of Contractor’s
choosing. Contractor understands that the Services must coordinate with
Company’s established protocols and security requirements.
9. CONTRACTOR’S
REPRESENTATIONS AND INDEMNITIES
(a) Contractor
represents that Contractor has the qualifications and ability to perform
the
Services in a professional manner, without the advice, control, or supervision
of Company. Contractor shall be solely responsible for the professional
performance of the Services and shall require no assistance, direction, or
control from Company. Contractor shall have sole discretion and control of
Contractor’s services and the manner in which they are to be performed.
(b) Contractor
shall and does hereby indemnify, defend, and hold harmless Company, and
Company’s officers, directors, employees and shareholders, from and against any
and all claims, demands, losses, costs, expenses, obligations, liabilities,
damages, recoveries, and deficiencies, including interest, penalties, and
reasonable attorney fees and costs, that Company may incur or suffer and
that
result from, or are related to, any breach or failure of Contractor to perform
any of the representations, warranties, and agreements in this Agreement.
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10. OWNERSHIP
OF INTELLECTUAL PROPERTY
(a) Contractor
agrees that all designs, plans, reports, specifications, drawings, schematics,
prototypes, models, inventions, and all other information and items, if any,
made during the course of this Agreement and arising from the Services (“New
Developments”) shall be and are assigned to Company as its sole and exclusive
property. On Company’s request, Contractor agrees to assist Company, at
Company’s expense, to obtain patents or copyrights for such New Developments,
including the disclosure of all pertinent information and data, the execution
of
all applications, specifications, oaths, and assignments, and all other
instruments and papers that Company shall deem necessary to apply for and
to
assign or convey to Company, its successors, and assigns or nominees, the
sole
and exclusive right, title, and interest in such New Developments.
(b) Contractor
agrees to obtain or has obtained written assurances from Contractor’s employees
and subcontractors of their agreement to these terms regarding Proprietary
Information and New Developments.
(c) Contractor
warrants that Contractor has good title to any New Developments and the right
to
assign New Developments to Company free of any proprietary rights of any
other
party or any other encumbrance whatsoever. Contractor further agrees not
to
disclose to the Company, or bring onto the Company’s premises, or induce the
Company to use any confidential information that belongs to anyone other
than
the Company or Contractor. Contractor agrees to indemnify the Company from
any
and all loss or liability incurred by reason of the alleged breach by Contractor
of any confidentiality or services agreement with anyone other than the
Company.
(d) The
representations and warranties contained herein and Contractor’s obligations
under Paragraphs 10 and 11 of this Agreement shall survive termination of
the
Agreement.
11. PROPRIETARY
INFORMATION
(a) “Proprietary
Information” means all information pertaining to the business of Company,
unless: (i) the information is or becomes publicly known through lawful
means; (ii) the information was part of Contractor’s general knowledge
prior to Contractor’s relationship with Company; or (iii) the information
is disclosed to Contractor without restriction by a third party who rightfully
possesses the information and did not learn of it from the Company. This
definition includes, but is not limited to: (A) techniques, development
tools, processes, formulas and improvements; (B) information about costs,
profits, markets, sales, customers, and bids; (C) plans for business,
marketing, future development and new product concepts; and (D) information
on Company’s employees, agents, or divisions. The written, printed, graphic, or
electronically recorded materials furnished by Company for use by Contractor
are
Proprietary Information and are the property of Company.
(b) Contractor
shall maintain in confidence and shall not, directly or indirectly, disclose
or
use, either during or after the term of this Agreement, any Proprietary
Information, confidential information, or know-how belonging to Company,
whether
or not it is in written or permanent form, except to the extent necessary
to
perform the Services. On termination of Contractor’s services to Company, or at
the request of Company before termination, Contractor shall deliver to Company
all material in Contractor’s possession, custody or control relating to
Company’s business, including Proprietary Information. The obligations on
Proprietary Information extend to information belonging to customers and
suppliers of Company about whom Contractor may have gained knowledge as a
result
of performing the Services.
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(c) Contractor
shall not, during the term of this Agreement and for a period of one year
immediately after the termination of this Agreement, or any extension of
it, for
any reason, either directly or indirectly (a) call on, solicit, or take
away any of Company’s customers (including but not limited to Customers as
described in Exhibit A) or potential customers about whom Contractor became
aware as a result of Contractor’s Services to Company, either for Contractor or
for any other person or entity; or (b) solicit or take away or attempt to
solicit or take away any of Company’s employees or potential employees or
contractors either for Contractor or for any other person or entity.
(d) Nothing
in this Paragraph 11 is intended to limit any remedy of Company under
law.
12. ARBITRATION
(a) All
disputes between Contractor, including any employees of Contractor, and Company
relating in any way to this Agreement or the Services to be performed under
this
Agreement (including, but not limited to, claims for breach of contract,
tort,
discrimination, harassment, and any violation of federal or state law)
(“Arbitrable Claims”) shall be resolved by arbitration before a neutral
arbitrator.
(b) The
arbitrator shall be selected and the arbitration hearing conducted pursuant
to
the Commercial Arbitration Rules of the American Arbitration Association
and
shall take place in San Francisco, California, unless otherwise agreed by
the
Parties. Arbitration shall be final and binding upon the Parties and shall
be
the exclusive remedy for all claims covered by this arbitration provision.
Either party may bring an action in court to compel arbitration under this
Agreement, to enforce an arbitration award or to obtain temporary injunctive
relief pending a judgment based on the arbitration award. Otherwise, neither
party shall initiate or prosecute any lawsuit or administrative action in
any
way related to any Arbitrable Claim. THE PARTIES HEREBY WAIVE ANY RIGHTS
THEY
MAY HAVE TO TRIAL BY JURY IN REGARD TO ARBITRABLE CLAIMS, INCLUDING WITHOUT
LIMITATION ANY RIGHT TO TRIAL BY JURY AS TO THE MAKING, EXISTENCE, VALIDITY,
OR
ENFORCEABILITY OF THE AGREEMENT TO ARBITRATE.
13. MISCELLANEOUS
PROVISIONS
(a) Assignment;
Successors and Assigns.
Contractor agrees that Contractor will not assign, delegate, transfer, or
otherwise dispose of the Services without the written consent of Company.
Nothing in this Agreement shall prevent the consolidation of either party
with,
or their merger into, any other corporation, or the sale by either party
of all
or substantially all of its properties or assets, or the assignment by either
party of this Agreement and the performance of its obligations hereunder
to any
successor in interest or any affiliated Company. Subject to the foregoing,
this
Agreement shall be binding upon and shall inure to the benefit of the Parties
and their respective heirs, legal representatives, successors, and permitted
assigns, and shall not benefit any person or entity other than those enumerated
above.
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(b) Entire
Agreement. The
terms
of this Agreement are intended by the Parties to be the final expression
of
their agreement with respect to the subject matter of this Agreement and
may not
be contradicted by evidence of any prior or contemporaneous agreement, except
as
expressly set forth in this Agreement. The Parties further intend that this
Agreement shall constitute the complete and exclusive statement of its terms
and
that no extrinsic evidence whatsoever may be introduced in any judicial,
administrative, or other legal proceeding involving this Agreement.
(c) Amendments;
Waivers. This
Agreement shall not be varied, altered, modified, changed or in any way amended
except by an instrument in writing executed by Contractor and a duly authorized
representative of Company.
(d) Severability;
Enforcement. If
any
provision of this Agreement, or the application thereof to any person, place,
or
circumstance, shall be held by an arbitrator or a court of competent
jurisdiction to be invalid, unenforceable, or void, the remainder of this
Agreement and such provisions as applied to other persons, places, and
circumstances shall remain in full force and effect, and such provision shall
be
enforced to fullest extent consistent with applicable law.
(e) Governing
Law.
Except
as otherwise provided, the validity, interpretation, enforceability, and
performance of this Agreement shall be governed by and construed in accordance
with the laws of California.
(f) Interpretation.
This
Agreement shall be construed as a whole, according to its fair meaning, and
not
in favor of or against any party. By way of example and not in limitation,
this
Agreement shall not be construed in favor of the party receiving a benefit
or
against the party responsible for any particular language in this Agreement.
Captions are used for reference purposes only and should be ignored in the
interpretation of this Agreement.
14. ACKNOWLEDGEMENT
The
Parties acknowledge that: (i) they have each had the opportunity to consult
with independent counsel of their own choice concerning this Agreement and
have
done so to the extent they deem necessary, and (ii) they each have read and
understand the Agreement, are fully aware of its legal effect, and have entered
into it voluntarily and freely based on their own judgment and not on any
promises or representations other than those contained in the
Agreement.
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The
Parties have duly executed this Agreement as of the date first written
above.
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GOFISH
CORPORTION:
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XXXXXXX
XXXXXXX
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By:
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Name
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Title:
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Schedule
A
Payment
Schedule
June
4,
2008 - $10,000
July
1,
2008 - $40,000
August
1,
2008 - $10,000
September
1, 2008 - $10,000
October
1, 2008 - $10,000
November
1, 2008 - $10,000
December
1, 2008 - $10,000
January
1, 2009 - $10,000
February
1, 2009 - $10,000
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