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EXHIBIT 10.2
CONSULTING AGREEMENT BETWEEN
TOURJETS AIRLINE CORPORATION
AND X. X. XXXXX & COMPANY
Effective June 1, 2000, X. X. Xxxxx & Company, a Michigan limited
partnership, ("Consultant") and Tourjets ("Company") agree as follows:
- Services and Payment.
Consultant agrees to undertake and complete the Services (as defined in
Exhibit A) in accordance with and on the schedule specified in Exhibit A. As the
only consideration due Consultant regarding the subject matter of this
Agreement, Company will pay Consultant in accordance with Exhibit A.
2. Ownership; Rights; Proprietary Information; Publicity.
(a) Company shall own all right, title and interest including patent
rights, copyrights, trade secret rights, mask work rights, trademark rights, sui
generis database rights and all other intellectual and industrial property
rights of any sort throughout the world relating to any and all inventions
(whether or not patentable), works of authorship, mask works, designations,
designs, know-how, ideas and information made or conceived or reduced to
practice, in whole or in part, by Consultant during the term of this Agreement
that relate to the subject matter of, or arise out of, the Services or any
Proprietary Information (as defined below) (collectively, "Inventions") and
Consultant will promptly disclose and provide all Inventions to Company. All
Inventions are work made for hire to the extent allowed by law and, in addition,
Consultant hereby makes all assignments necessary to accomplish the foregoing
ownership. Consultant shall further assist Company, at Company's expense, to
further evidence, record and perfect such assignments, and to perfect, obtain,
maintain, enforce, and defend any rights assigned. Consultant hereby irrevocably
designates and appoints Company as its agents and attorneys-in-fact to act for
and in Consultant's behalf to execute and file any document and to do all other
lawfully permitted acts to further the foregoing with the same legal force and
effect as if executed by Consultant.
(b) Consultant agrees that all Inventions and all other business,
technical and financial information (including, without limitation, the identity
of and information relating to customers or employees) Consultant develops,
learns or obtains during the period over which it is (or is supposed to be)
providing Services that relate to Company or the business or demonstrably
anticipated business of Company in connection with Services or that are received
by or for Company in confidence, constitute "Proprietary Information."
Consultant will hold in confidence and not disclose or, except in performing the
Services, use any Proprietary Information. However, Consultant shall not be
obligated under this paragraph with respect to information Consultant can
document is or becomes readily publicly available without restriction through no
fault of Consultant.
Upon termination and as otherwise requested by Company, Consultant will
promptly return to Company all items and copies containing or embodying
Proprietary Information, except that Consultant may keep its personal copies of
its compensation records and this Agreement. Consultant also recognizes and
agrees that Consultant has no expectation of privacy with respect to Company's
telecommunications, networking or information processing systems (including,
without limitation, stored computer files, e-mail messages and voice messages)
and that Consultant's activity, and any files or messages, on or using any of
those systems may be monitored at any time without notice.
(c) As additional protection for Proprietary Information, Consultant
further agrees that:
(i) during the period over which it is (or is supposed to be) providing
Services and for one year thereafter, Consultant will not encourage or solicit
any employee or consultant of Company to leave Company for any reason, and
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(ii) Consultant will not engage in any activity that is in any way
competitive with the business or demonstrably anticipated business of Company,
and Consultant will not assist any other person or organization in competing or
in preparing to compete with any business or demonstrably anticipated business
of Company.
(d) To the extent allowed by law, Section 2.a [and any license to
Company hereunder] includes all rights of paternity, integrity, disclosure and
withdrawal and any other rights that may be known as or referred to as "moral
rights," "artist's rights," "droit moral," or the like. Furthermore, Consultant
agrees that notwithstanding any rights of publicity, privacy or otherwise
(whether or not statutory) anywhere in the world and without any further
compensation. Company may and is hereby authorized to use Consultant's name in
connection with promotion of its business, products and services and to allow
others to do so. To the extent any of the foregoing is ineffective under
applicable law, Consultant hereby provides any and all ratifications and
consents necessary to accomplish the purposes of the foregoing to the extent
possible. Consultant will confirm any such ratifications and consents from time
to time as requested by Company. If any other person provides any Services in
this paragraph in connection with the Services], Consultant will obtain the
foregoing ratifications, consents and authorizations from such person for
Company's exclusive benefit.
(e) If any part of the Services or Inventions is based on,
incorporates, or is an improvement or derivative of, or cannot be reasonably and
fully made, used, reproduced, distributed and otherwise exploited without using
or violating technology or intellectual property rights owned or licensed by
Consultant and not assigned hereunder, Consultant hereby grants Company and its
successors a perpetual, irrevocable, worldwide royalty-free, non-exclusive,
sublicensable right and license to exploit and exercise all such technology and
intellectual property rights in support of Company's exercise or exploitation of
the Services, Inventions, other work performed hereunder, or any assigned rights
(including any modifications, improvements and derivatives of any of them).
- Warranty.
Consultant warrants that:
(a) the Services will be performed in a professional and workmanlike
manner and that none of such Services or any part of this Agreement is or will
be inconsistent with any obligation Consultant may have to others;
(b) all work under this Agreement shall be Consultant's original work
and none of the Services or Inventions or any development, use, production,
distribution or exploitation thereof will infringe, misappropriate or violate
any intellectual property or other right of any person or entity (including,
without limitation, Consultant); and,
(c) Consultant has the full right to allow it to provide the Company
with the assignments and rights provided for herein.
- Termination.
If either party materially breaches a material provision of this
Agreement, the other party may terminate this Agreement upon 30 days' notice
unless the breach is cured within the notice period. Company also may terminate
this Agreement at any time, with or without cause, upon 90 days notice, but, if
it terminates Consultant without cause, Company shall upon termination pay
Consultant all unpaid amounts due for Services completed prior to notice of
termination.
- Relationship of the Parties.
Notwithstanding any provision hereof, for all purposes of this
Agreement each party shall be and act as an independent contractor and not as
partner, joint venturer, or agent of the other and shall not bind nor attempt to
bind the other to any contract. Consultant is an independent contractor and is
solely responsible for all taxes, withholdings, and other statutory or
contractual obligations of any sort, including, but not limited to, Workers'
Compensation Insurance; and Consultant agrees to defend, indemnify and hold
Company harmless from any and all claims, damages, liability, attorneys' fees
and expenses on account of (i) an alleged failure by Consultant to satisfy any
such obligations or any other obligation (under this Agreement or otherwise) or
(ii) any other action or inaction
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of Consultant. If Consultant is a corporation, it will ensure that its employees
and agents are bound in writing to Consultant's obligations under this
Agreement.
- Assignment.
This Agreement and the services contemplated hereunder are personal to
Consultant and Consultant shall not have the right or ability to assign,
transfer, or subcontract any obligations under this Agreement without the
written consent of Company. Any attempt to do so shall be void.
- Notice.
All notices under this Agreement shall be in writing, and shall be
deemed given when personally delivered, or three days after being sent by
prepaid certified or registered U.S. mail to the address of the party to be
noticed as set forth herein or such other address as such party last provided to
the other by written notice.
- Miscellaneous.
(a) Sections 2 (subject to the limitations on Section 2.c stated
therein) through 8 of this Agreement and any remedies for breach of this
Agreement shall survive any termination or expiration. Company may communicate
such obligations to any other (or potential) client or employer of Consultant.
(b) Any breach of Section 2 or 3 will cause irreparable harm to Company
for which damages would not be a adequate remedy, and, therefore, Company will
be entitled to injunctive relief with respect thereto in addition to any other
remedies.
(c) The failure of either party to enforce its rights under this
Agreement at any time for any period shall not be construed as a waiver of such
rights.
(d) No changes or modifications or waivers to this Agreement will be
effective unless in writing and signed by both parties.
(e) In the event that any provision of this Agreement shall be
determined to be illegal or unenforceable, that provision will be limited or
eliminated to the minimum extent necessary so that this Agreement shall
otherwise remain in full force and effect and enforceable.
(f) This Agreement shall be governed by and construed in accordance
with the laws of the State of Florida without regard to the conflicts of laws
provisions thereof.
(g) Headings herein are for convenience of reference only and shall in
no way affect interpretation of the Agreement.
(h) In any action or proceeding to enforce rights under this Agreement,
the prevailing party will be entitled to recover costs and attorneys fees.
9. X. X. Xxxxx & Company will have the right to use any financial
invention that may be developed as a result of this consulting agreement for
other clients as long as those clients are not competitors of Tourjets.
CONSULTANT
By: /s/ Xxxxx X. Xxxxx
ITS:Managing General Partner
DATED:July 20, 2000
COMPANY
By: /s/ Xxxxx X. Xxxxxx
ITS: Chairman, CEO & President
DATED:July 20, 2000
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EXHIBIT A TO CONSULTING AGREEMENT BETWEEN
Tourjets Airline Corporation AND X. X. XXXXX & COMPANY
A. Services to Be Performed:
1. Xx. Xxxx X. Demand, a working partner and Financial Principal of
X.X. Xxxxx & Company, will assume the position of Chief Financial Officer of
Tourjets and apply whatever reasonable time it takes to accomplish the
responsibilities of this office. In the event Xxxx Demand can no longer assume
this role, a replacement will be named by Tourjets' Board of Directors.
2. Other partners of X. X. Xxxxx & Company will apply whatever time is
necessary to complete the financial planning required for Tourjets
B. Compensation:
Beginning on June 01, 2000 Tourjets shall pay X. X. Xxxxx & Company
$15,000 per month for services rendered under this agreement. Tourjets may at
its option defer any payments until it received its initial funding. Deferred
payments will not accrue any interest and will become payable in full within 10
days after Tourjets received its initial funding. In addition, X.X. Xxxxx &
Company shall receive a one time reimbursement payment for services rendered in
the amount of $371,250 following Tourjets receipt of its FAA & DOT
certification.
C. Specialized Consultants Retained by X. X. Xxxxx & Company:
In the event that other consultants are required to provide service for
specific financial planning projects, subject to the approval of Tourjets's
Board of Directors, Tourjets will pay for such services.
