OWEN CONSULTING CONSULTANCY AGREEMENT
XXXX
CONSULTING
This
Consultancy Agreement (the "Agreement") is entered into by and between
Xxxx Consulting, LLC, a California Corporation (the "Consultant"), and
Futomic
Industries, Inc., a
New
Jersey Corporation (the "Company").
1.
CONSULTING
RELATIONSHIP.
During
the term of this Agreement, Consultant will
provide
the
Company
consulting services (the "Services") as specified
by the Board of Directors or the chief executive officer
of the Company from
time
to time. Consultant shall use Consultant's best efforts to perform the
Services
such that the results are satisfactory to the Company. Consultant shall devote
approximately 75% of Consultant's time to performance of the
Services.
2.
FEES.
As
consideration for the Services to be provided by Consultant and other
obligations, the Company shall pay to Consultant $25.00 per hour per hour
worked
during the term of this Agreement in accordance with the Company's normal
payment practices for consultants. As additional consideration for the
Services,
the Company will provide Consultant with such support facilities and
space
as
may be required
in the Company's judgment to
enable
Consultant to properly perform the Services.
3.
EXPENSES.
Consultant shall not be authorized to incur on behalf of the Company any
expenses without the prior written consent of the Company's chief executive
officer or chief financial officer. As a condition to receipt of reimbursement,
Consultant shall be required to submit to the Company reasonable evidence that
the amount involved was expended and related to Services provided under this
Agreement.
4.
TERM AND TERMINATION.
Consultant shall serve as a consultant to the
Company for a period commencing on October 1, 2006 and terminating on September
30, 2007.
Should
either party default in the performance of this Agreement or materially breach
any of its obligations under this Agreement, including but not limited to
Consultant's obligations under the Confidential Information Agreement between
the
Company
and Consultant referenced below in Section 8, the non-breaching party may
terminate this Agreement immediately
if the breaching party
fails to cure the breach within five (5) business days after
having
received written notice by the non-breaching party of the breach or
default.
Notwithstanding
the above, either party may terminate this Agreement at any time upon thirty
(30) days' written notice. In the event of such termination, Consultant shall
be
paid for any portion of the Services that have been performed prior to the
termination.
5.
METHOD
OF PROVISION OF SERVICES:
(a)
Consultant shall be solely responsible for determining the method, details
and
means
of
performing
the
Services. Consultant
may, at Consultant's own expense, employ or engage the service of such employees
or subcontractors as
Consultant deems necessary to perform the Services required by this
Agreement (the
"Assistants"). Such Assistants are not the employees of the Company and
Consultant shall be wholly responsible for
the
professional performance of the Services
by his Assistants such that the results
are satisfactory to the Company. Consultant
shall expressly advise the Assistants of the terms of this Agreement, and shall
require each Assistant to execute a Confidential Information Agreement
substantially
in the form attached to this Agreement as Exhibit A (the "Confidentiality
Agreement").
(b)
NO
AUTHORITY TO BIND COMPANY.
Neither
Consultant, nor any
partner, agent or employee of Consultant, has authority to enter into contracts
that bind the Company or create obligations on the part of the Company without
the prior written authorization of the Company.
(c)
WITHHOLDING;
INDEMNIFICATION.
Consultant shall have full responsibility for applicable withholding taxes
for
all compensation paid to Consultant, its partners, agents or its employees
under
this Agreement,
and for compliance
with all applicable labor and employment requirements with respect to
Consultant's self-employment, sole proprietorship or other form of business
organization, and Consultant's partners, agents and employees, including state
worker's compensation insurance coverage requirements and any US immigration
visa requirements (provided that the Company shall avail all reasonable
assistance to
the
Consultant if so requested). Consultant agrees to indemnify, defend and
hold
the
Company harmless from any liability for, or assessment of, any claims or
penalties with respect to such withholding taxes, labor or employment
requirements, including any liability for, or assessment of, withholding taxes
imposed on the Company by the relevant taxing authorities with respect to any
compensation paid to Consultant or Consultant's partners, agents or its
employees.
6. SUPERVISION
OF CONSULTANT'S SERVICES.
All of
the Services
to be
performed by Consultant, including but not limited to the Services, will be
as
agreed between Consultant and the Company's chief executive
officer.
Consultant will be required to report to the Company's chief executive officer
concerning the
Services
performed under this Agreement. The nature and frequency of these
reports
will be left to
the
discretion of the Company's chief executive officer.
7.
CONSULTING
OR OTHER SERVICES FOR COMPETITORS. Consultant
represents and warrants that Consultant does not presently perform
or intend
to
perform, during the term of the Agreement, consulting or other
services
for, or
engage in or intend to engage in an employment relationship with, any businesses
or proposed businesses in any way which would be competitive with the
Company's products or services, or those products or services proposed or
in development
by the Company during the term of the Agreement (except for those
companies, if any, listed on Exhibit B attached hereto). If, however, Consultant
decides to do so, Consultant agrees that, in advance of accepting such work,
Consultant will promptly notify the Company in writing, specifying the
organization with which Consultant proposes to consult, provide services, or
become
employed by and to provide information sufficient to allow the Company to
determine if such work would conflict
with the terms
of
this
Agreement, including the terms of the Confidentiality Agreement, the interests
of the Company
or further services which the Company might request of Consultant. If
the
Company determines that such work conflicts with the terms of this Agreement,
the Company reserves the right to terminate this Agreement
immediately.
8.
CONFIDENTIALITY
AGREEMENT.
Consultant shall sign, or has signed,
a
Confidential Information Agreement substantially in the form attached
to
this
Agreement as Exhibit A (the "Confidentiality Agreement''), on or before October
1, 2006. In the event that Consultant is an entity or otherwise will be causing
individuals in its employ or under its supervision to participate in the
rendering of the Services, Consultant warrants that it shall
cause
each of such individuals
to execute a Confidentiality Agreement in the form attached as Exhibit
A.
9.
CONFLICTS
WITH THIS AGREEMENT.
Consultant represents and warrants that neither Consultant nor any of
Consultant's partners, employees or agents is under any pre-existing obligation
in conflict or in any way inconsistent with the provisions of this Agreement.
Consultant represents and warrants that Consultant's performance of all the
terms of this Agreement will not breach any agreement
to keep in
confidence
proprietary information acquired by Consultant in
confidence or in trust prior to commencement of this Agreement. Consultant
warrants
that Consultant has the right to disclose and/or or use all ideas,
processes,
techniques and other information, if any, which Consultant has gained from
third
parties, and which Consultant discloses to the Company or uses in the course
of
performance of this Agreement, without liability to such third parties.
Notwithstanding
the foregoing, Consultant agrees that Consultant
shall not bundle
with
or
incorporate into any deliveries provided to the Company herewith any third
party
products, ideas, processes, or other techniques, without the express,
written
prior approval of the Company. Consultant represents and warrants
that
Consultant has not
granted and
will
not grant any rights or
licenses to any intellectual property or technology that would conflict
with
Consultant's obligations
under this Agreement. Consultant will not knowingly infringe upon any
copyright, patent,
trade
secret or other property right of any former client, employer
or third
party in
the
performance of the Services required
by
this
Agreement.
9.
MISCELLANEOUS.
(a)
AMENDMENTS
AND WAIVERS.
Any
term of this Agreement
may
be
amended or waived only
with
the
written consent of the parties.
(b)
SOLE
AGREEMENT.
This
Agreement, including the Exhibits hereto, constitutes the sole agreement of
the
parties and supersedes all oral negotiations and prior writings with respect
to
the subject matter hereof.
(c)
NOTICES.
Any
notice required or permitted by this Agreement shall be in writing and shall
be
deemed sufficient upon receipt,
when
delivered personally or by courier, overnight delivery service or confirmed
facsimile, 48 hours after being deposited in the regular mail as certified
or
registered mail (airmail if sent internationally) with postage prepaid, if
such
notice is addressed to the party to be notified at such party's address or
facsimile number as set forth below, or as subsequently modified by written
notice.
(d)
CHOICE
OF LAW.
The
validity, interpretation, construction and performance
of this Agreement shall be governed by the laws of the State of California,
without giving effect to the principles of conflict of laws.
(e)
SEVERABILITY.
If one
or more provisions of this Agreement are held to be unenforceable under
applicable law, the parties agree to renegotiate such provision in good faith.
In the event that the parties cannot reach a mutually agreeable and enforceable
replacement for such provision, then (i) such provision shall
be
excluded from this Agreement, (ii) the balance of the Agreement shall be
interpreted as if such provision were so excluded and (iii) the balance of
the
Agreement shall be enforceable in accordance with its terms.
(f)
COUNTERPARTS.
This
Agreement may be executed in counterparts, each
of
which
shall be deemed an original, but all of which together will constitute one
and
the same instrument.
(g)
ARBITRATION.
Any
dispute or claim arising out of or in connection with any provision of this
Agreement will be finally settled by binding arbitration in Orange County,
California, in accordance with the rules of the American Arbitration Association
by one arbitrator appointed in accordance with said rules. The arbitrator shall
apply California law, without reference to rules of conflicts of law or rules
of
statutory arbitration, to the resolution of any dispute. Judgment on the award
rendered by the arbitrator may be entered in any court having jurisdiction
thereof. Notwithstanding the foregoing, the parties may apply to any court
of
competent jurisdiction for preliminary or interim equitable relief, or to compel
arbitration in accordance with this paragraph, without breach of this
arbitration provision. This Section 10(g) shall not apply to the Confidentiality
Agreement.
(h)
ADVICE
OF COUNSEL. EACH PARTY ACKNOWLEDGES THAT,
IN EXECUTING THIS AGREEMENT, SUCH PARTY HAS HAD THE
OPPORTUNITY TO SEEK THE ADVICE OF INDEPENDENT LEGAL
COUNSEL,
AND HAS READ AND UNDERSTOOD ALL OF THE TERMS
AND PROVISIONS OF THIS AGREEMENT. THIS AGREEMENT SHALL
NOT BE CONSTRUED AGAINST ANY PARTY BY REASON OF THE
DRAFTING OR PREPARATION HEREOF.
(i)
SOLICITATION
OF EMPLOYEES.
Consultant agrees that for a period of twelve (12) months immediately following
the termination of the consultant relationship with the Company for any reason,
whether with or without cause, Consultant shall not either directly or
indirectly solicit, induce, recruit or
encourage
any of the Company's employees to leave their employment, or take away such
employees, or attempt to solicit, induce, recruit, encourage or take away
employees of the Company, either for Consultant or for any other person or
entity.
The
parties have executed this Agreement on the respective dates set forth
below.
|
XXXX
CONSULTING
|
|
| /s/ Xxxxx Xxxx | |
|
By:
Xxxxx Xxxx
Title:
President
Date:
10/1/06
|
|
|
FUTOMIC
INDUSTRIES, INC.
|
|
| /s/ Xxxxx Xxxx | |
|
By:
Xxxxx Xxxx
Title:
President
Date:
10/1/06
|
EXHIBIT
A
CONFIDENTIAL
INFORMATION AGREEMENT
(WITH
EXHIBITS THERETO)
|
System
Team
|
||
| Linux/Windows | ||
| Booting Process | ||
| Grub Boot Loader | ||
| Lilo Boot Loader | ||
| Initial Loading Page Design | ||
| Clean the Disk | ||
| Network Configuration | ||
| Authentication | ||
|
Reboot
|
||
| MyConnection | ||
| Exit Processing | ||
| Network Configuration in Puppy | ||
| Device Driver | ||
| Identifying Device in PC | ||
|
Comparison
|
||
| Server Comparison | ||
| Download & Installing | ||
| Getting drivers for unsupported Device | ||
| EK Booting Screen | ||
|
VPN
|
||
| VPN Switching | ||
|
DNS
Configuration
|
||
| VPN Dynamic IP Configuration | ||
| RPM Installation Redhat, DEBIAN and Fedora | ||
| Open VPN Installation in Windows | ||
|
RPM
Installation in Puppy
|
||
|
Team
Embedded
|
||
| Mass Storage Implementation | ||
| Bio Metric Sensor Implementation | ||
|
RFID
Implementation (Module Completed)
|
||
| Schematic Diagram | ||
| LCD Implementation |
|
Web
Application
Team
|
Component Prerequirements | |
|
Groups
|
Create and Join Group | |
|
Messages
|
||
| Files and Photos | ||
|
Members
|
||
|
Management
for Owner/Moderator
|
||
|
Government
Medical
|
Designing
Designing
|
|
| Content Management System | ||
|
Groups
Admin
|
Group Categories | |
|
Group
List and Search
|
||
| Group Member list and Search | ||
|
Moderators
List and Search
owners
List and Search
|
||
| Pending messages and Photos | ||
| Mail management | ||
| Medical Admin | ||
|
Government
Admin
|
||
| Registration | Registration, Login, Forgot Password
Home
|
|
|
Email Settings, Password, Phone settings, Address
wallet
|
||
| MySettings | settings | |
| Parental Control URL Blocking, Address & email domain verification | ||
| Finance | Market News and Currency Converter | |
| Merchant Registration, Xxxx Pay, Payment History, Transaction | ||
| Merchant | History | |
|
Integration of Merchant site with Payment Processing
Company
|
||
| Non EK Merchant | ||
| Admin |
Ekuser, General, Merchant List, Transaction History
Merchant invoice, creditmemo, Payment History
Affiliate
Checking
|
|
| MyWallet | Addcard, Edit card and delete card | |
| Xxxx Pay (Single payment, Recurring payment) | ||
| Transaction | ||
|
Rewards
|
||
| Password Manager For Mozilla | ||
| Password Manager For Windows |
|
Recover
Profile
|
||
| News | News | |
| My Profile | My Profile | |
| Admin | Alert | |
| Vendors | ||
|
Rewards
|
||
|
Transaction
|
||
| Cards | ||
| Password Manager | ||
| Chat | Private Chat | |
|
Public
Chat
|
||
| Chat-Tool | Client side Port enable | |
| Client wizard creation in Linux | ||
| Send file in windows | ||
| Send file in Linux | ||
| Voice Chat .jdk1.4 | ||
| Voice Chat jdk 1.5 | ||
| Private Chat | ||
| Public Chat | ||
| Admin | Chat Category | |
| Chat room | ||
|
Members
|
||
| Private Chat | ||
|
My
Connections
|
EK Remote Server for Windows | |
| EK Remote Client for Windows | ||
| EK Remote Server for Linux | ||
| EK Remote Client for Linux | ||
| Connection Management pages | ||
|
Admin.
Section
|
||
| EK Mail User Module | ||
|
EK
Remote Mail client
for windows(outlook
Express)
|
||
|
EK
Remote Mail client for Linux(Thunderbird)
|
||
| EK Mail Admin Module | ||
| My Files EK | File Manager | |
| EK Files Admin. Module | ||
| Remote Machine File manager | ||
| USB File Manager | ||
| Architecture | DAO Implementation | |
| EJP Analysis |
| Design Team | Prototype | |
| Admin Module Layout | ||
| Admin Module Buttons Creation | ||
| New Layout Changes | ||
| User Module Buttons and Images Creation | ||
| Design Team Testing | ||
|
System
Testing
|
Test
Plan
|
Booting Process in Xp |
|
|
Booting Process in. Linux | |
| VPN | ||
|
Test
Plan
|
Booting Process in Xp | |
| Booting Process in Linux | ||
| Bug Report | ||
| VPN | ||
|
Requirement
Team
|
Software
Requirement Specification
|
|
|
System
|
||
| Web Application | ||
| Requirement Traceability Matrix | ||
| System | ||
| Web Application | ||
| SRS updation as per Requirement Changes | ||
|
System
|
||
| Web Application | ||
| RTM Updation as per Requirement Changes | ||
| System | ||
| Web Application | ||
| User Manual Preparation | ||
| Use case Specification Document for Web Application High Level Design Document for System | ||
|
Help
Content
|
||
| Validation Messages Document | ||
| Validation Control Document | ||
| Release Notes (As per Previous Release) | ||
| Web Application System | ||
| Project Plan |
|
Web
Application
Testing
|
Test Plan | Common Modules |
| My Connections | ||
| My Wallet | ||
| Merchant | ||
|
Chat
|
||
| My Settings | ||
|
Xxxx
|
||
| My Files | ||
|
Test
Cases for all Modules
|
||
| Test Scenarios for all Modules | ||
|
Bug
Report
|
EXHIBIT
B
LIST
OF COMPANIES
EXCLUDED
UNDER SECTION 7
___No
conflicts
___Additional
Sheets Attached
Signature
of Consultant: /s/
Xxxxx Xxxx
Print
Name of Consultant: Xxxxx Xxxx
Date:
