Exhibit 4.1
AGREEMENT WITH XXXXXX XXXXX
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TECHNOLOGY CONSULTING AGREEMENT
This Consulting Agreement (the "Agreement") is effective as of April 27, 2006,
and is made by and between m-Wise, Inc., Inc, a Delaware corporation, ("m-Wise")
with offices at 0 Xxxxx Xxxxxx, Xxxxxxxxx, Xxxxxx and Xxxxxx Xxxxx ("RH"), with
offices located at 0000 Xxxxxx Xxxxxx, Xxxxxxxxx 403, Santa Monica, California
90403, United States of America (each a "Party" and collectively, the
"Parties").
Recitals
B. m-Wise is a company that provides products and services in the field
of Telecommunication and Entertainment.
C. RH, among other things, provides consulting and technology advisory,
services to clients in the telecommunications and/or entertainment
industry.
D. m-Wise is desirous of engaging RH to provide consulting services on
a non-exclusive basis to assist m-Wise in acquiring and exploring
technologies related to the technologies it currently develop and
deploy , and RH desires to enter into a relationship with m-Wise to
provide such services as described herewith.
Therefore, the parties agree as follows:
1. RH shall provide m-Wise with the following services:
(a) Advise m-Wise on an ongoing basis and upon m-Wise
requests regarding its technology strategy
(b) Explore and research technologies that complement m-Wise
strategy following requirements presented by m-Wise from
time to time
(c) Upon m-Wise written request, assist m-Wise in acquiring
technologies that comply with its technology strategy.
(d) Assist m-Wise in developing a strategy to provide
solutions to issues related to rights of digital
content, including by assisting m-Wise to generate
relationships with owners of such rights in the
entertainment industry.
2. RH shall be entitled to receive consulting fees that will be
paid as follows: (a) $35,000 in cash that will be paid upon
the execution of this agreement (b) 2,818,182 shares of m-Wise
Common Stock that will be issued to RH.
3. This Agreement shall be effective as of the execution date
thereof, and shall remain in force for a period of twelve
months.
4. Each Party represents and warrants to the other Party that the
individual executing this Agreement on its behalf has the
requisite power and authority to bind that party to the terms
hereof.
5. The Parties are independent firms and are not in partnership
nor shall there be deemed to be any relationship between them
for any purpose whatsoever, including that of
employer/employee.
6. RH has no right or authority to create, in writing or
otherwise, any obligation of any kind, to sign any agreement,
or quote prices, on behalf of m-Wise, unless RH has obtained
the prior written consent of m-Wise. RH shall not represent
m-Wise and m-Wise's Products beyond the information provided
by m-Wise in writing. m-Wise shall have the sole and absolute
right to decide whether or not to acquire a potential
technologies, to make any offer or to accept any offer from
any potential technology partner, without any liability to RH
or Sub Agent and shall have no liability to RH or Sub Agent in
respect of its failure to enter into and/or comply with the
terms of any agreement. No party shall have the authority to
bind any other party except as set forth herein and no party
shall be responsible for oversight or supervision of any other
party or be liable for the acts or omissions of any other
party.
7. Title and all ownership rights and/or copyright to m-Wise's
products or services, including any associated documentation,
and any updates, improvements, alterations or modifications
thereto and all copies and reproductions thereof, no matter by
whom made, shall be retained at all times by m-Wise. RH shall
promote m-Wise's products and services (including all
promotional activities) only under the trademarks applied to
them by m-Wise, and prominently display such trade name and
m-Wise as the copyright holder of the products and services in
all appropriate marketing media.
8. RH and m-Wise shall have the right to assign this Agreement to
a third party only upon the written consent of the other party
hereto.
9. For a period of two (2) years from the date of receipt of
Confidential Information (as defined below), both parties
hereto shall refrain from (i) divulging any Confidential
Information to any third party or to any of its employees or
outside advisors who do not have a need to know such
information, or (ii) using any Confidential Information for
its own use or benefit other than for the purpose of
fulfilling its obligations under this Agreement.
(a) Confidential Information includes without limitation:
(i) any information or material proprietary to the
disclosing party; and (ii) any information not generally
known by respective non-company personnel; and (iii) any
information which the Receiving Party should know the
Disclosing Party would not wish to have revealed to
others or used in competition with the Disclosing Party.
The Confidential Information includes but is not limited
to the following types of information and other
information of a similar nature (whether or not reduced
to writing): Inventions (as defined below), development
procedures, "know-how", specifications, models, software
and other technology in various stages of development,
diagrams, data, flowcharts, spreadsheets, marketing and
development plans, customer names and other information
related to customers, price lists, pricing policies,
supplier lists, and financial information.
(b) For the purposes of this Agreement, "Inventions" shall
mean ideas, designs, creations, concepts, techniques,
inventions, improvements, discoveries, and works of
authorship, whether or not patentable or protectable by
copyright, mask work or patent, whether or not fixed in
a tangible medium of expression and whether or not
reduced to practice, including but not limited to the
nature and results of research and development
activities, processes, formulae, devices, designs,
processes, computer programs, and methods, together with
any improvements thereon or thereto, derivative works or
applications derived therefrom, and know-how related
thereto.
(c) The obligations of the Receiving Party regarding the
confidentiality of Confidential Information shall not
apply to any information which (i) is contained in a
generally available publication bearing a date prior to
the date of this Agreement; (ii) is or becomes available
to the public other than as a result of improper action
by the Receiving Party; (iii) is known by the Receiving
Party from a source independent of any restrictions
imposed by the Disclosing Party or becomes rightfully
known to the Receiving Party from such source; (iv)
shall be or has been independently developed by
Receiving Party; (v) is furnished by the Disclosing
Party to a third party without explicit or implied
restrictions of confidentiality on the third party's
rights to disclose same; or (vi) is required to be
disclosed under applicable law, subject to the Receiving
Party giving the Disclosing Party prior notice thereof.
10. NO PARTY SHALL UNDER ANY CIRCUMSTANCES BE LIABLE TO THE OTHER
PARTY FOR INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL
DAMAGES, LOSSES, LIABILITIES, COSTS, OR EXPENSES (INCLUDING,
BUT NOT LIMITED TO, LOSS OF PROFITS, GOODWILL, REVENUE, OR
BUSINESS) RESULTING FROM OR IN ANY WAY RELATED TO THIS
AGREEMENT, OR THE TERMINATION OF THIS AGREEMENT. THIS
LIMITATION APPLIES REGARDLESS OF WHETHER SUCH DAMAGES ARE
SOUGHT BASED ON BREACH OF CONTRACT, BREACH OF WARRANTY,
NEGLIGENCE, STRICT LIABILITY OR ANY OTHER LEGAL OR EQUITABLE
THEORY.
11. This Agreement sets forth the entire agreement and
understanding between the parties with respect to the subject
matter hereof and supersedes and replaces all prior agreements
and negotiations, whether written or oral, with respect
thereto. This Agreement shall not be altered or amended except
by writing executed by each party.
12. This Agreement may be executed simultaneously in two or more
counterparts, each of which taken together shall constitute
but one and the same instrument.
13. This Agreement shall be governed and construed in accordance
with the laws of the State of Israel.
14. No provision of this Agreement may be modified, waived or
discharged unless such waiver, modification or discharge is
agreed to in writing and signed by m-Wise and RH. No waiver by
either party hereto at any time of any breach by the other
party hereto of, or compliance with, any condition or
provision of this Agreement to be performed by such other
party shall be deemed a waiver of similar or dissimilar
provisions or conditions at the same or at any prior or
subsequent time.
15. The provisions of this Agreement shall be deemed severable,
and the invalidity or unenforceability of any provision shall
not affect the validity or enforceability of the other
provisions hereof.
m-Wise, Inc. RH
By: Xxxxxxxxx Xxxxxx By: Xxxxxx Xxxxx
Title: CEO Title: Consultant
Signature: /s/ Xxxxxxxxx Xxxxxx Signature: /s/ Xxxxxx Xxxxx
