EX-10.1
2
ex10-1.htm
DigiPath,
Inc.
CONSULTING,
CONFIDENTIALITY AND PROPRIETARY RIGHTS AGREEMENT
This
Consulting, Confidentiality and Proprietary Rights Agreement (“Agreement”) is entered into as of the 10th day of December
2014 (the “Effective Date”) by and between DigiPath, Inc. a Nevada corporation (the “Company”), W-Net,
Inc. (“Consultant”).
WHEREAS,
the Company desires to engage Consultant to provide certain services as set forth on Schedule A attached hereto.
NOW,
THEREFORE, in consideration of the foregoing and the mutual covenants and conditions contained herein, the parties hereto agree
as follows:
1.
Engagement. The Company hereby engages Consultant to perform, using Xxxxx Xxxxxx (the “Principal”), those duties
set forth in the Schedule A attached hereto and such other duties as may be mutually agreed to from time to time by the
Company and Consultant (collectively, the “Services”). Consultant hereby accepts such engagement upon the terms
and subject to conditions set forth in this Agreement.
2.
Compensation. For the Services rendered by Consultant under this Agreement, the Company shall pay to Consultant the compensation
specified in Schedule A subject to the terms and conditions set forth in this Agreement. The Consulting Fee (as defined
below) shall be payable by the Company in advance, on a calendar monthly basis, in US Dollars by check or wire transfer to an
account specified by Consultant. All amounts payable by the Company pursuant to this Section 2 shall be due within fifteen
(15) days following the Company’s receipt of an invoice therefor. Any amounts not paid within fifteen (15) days following
the Company’s receipt of an invoice shall accrue interest at a rate of one percent (1%) per month or the maximum lawful
rate, whichever is less.
3.
Term and Survivability. The term of this Agreement shall be for a period of one month from the Effective Date and shall
automatically renew for successive monthly periods until terminated in accordance with the terms hereof. This Agreement may be
terminated at any time for any reason by either party with five (5) days’ notice. Upon termination of this Agreement the
following sections of this Agreement shall survive such termination: Sections 3, 5, 6, 7, 8, 12, and 13-23.
4.
Costs and Expenses of Consultant’s Performance. The Company shall reimburse Consultant for all costs and expenses
incurred by Consultant in connection with providing the Services upon Consultant providing reasonable substantiating documentation.
5.
Taxes. As an independent contractor, Consultant acknowledges and agrees that it is solely responsible for the payment of
any taxes and/or assessments imposed on account of the payment of compensation to, or the performance of Services by Consultant
pursuant this Agreement, including, without limitation, any unemployment insurance tax, federal and state income taxes, federal
Social Security (FICA) payments, and state disability insurance taxes. The Company shall not make any withholdings or payments
of said taxes or assessments with respect to amounts paid to Consultant hereunder; provided, however, that if required by law
or any governmental agency, the Company shall withhold such taxes or assessments from amounts due Consultant, and any such withholding
shall be for Consultant’s account, shall not be reimbursed by the Company to Consultant and shall be paid to the applicable
taxing authority by the Company on Consultant’s behalf.
6.
Confidentiality. Reference is hereby made to that certain Nondisclosure Agreement, dated as of December 9, 2014, by and
between the Company and Consultant (the “NDA”). The NDA is hereby incorporated by reference and the parties hereby
agree to abide by the terms thereof as if set forth herein. The term “Confidential Information” as used herein shall
have the meaning ascribed to it in the NDA. The parties shall treat the terms and conditions and the existence of this Agreement
as Confidential Information.
The
Company shall file a Current Report on Form 8-K with the Securities and Exchange Commission (i) disclosing this Agreement and
any ancillary agreements (including that certain Lock-Up Agreement, dated as of the date hereof) entered into by Consultant in
connection with the Services and (ii) containing such other disclosures as are acceptable to Consultant.
7.
Return of the Company’s Proprietary Materials. Consultant agrees to deliver promptly to the Company on termination
of this Agreement for whatever reason, or at any time the Company may so request, all documents, records, artwork, designs, data,
drawings, flowcharts, listings, models, sketches, apparatus, notebooks, disks, notes, copies and similar repositories of Confidential
Information and any other documents of a confidential nature belonging to the Company, including all copies, summaries, records,
descriptions, modifications, drawings or adaptations of such materials which Consultant may then possess or have under its control.
Consultant further agrees that upon termination of this Agreement, Consultant’s, employees, consultants, agents or independent
contractors shall not retain any document, data or other material of any description containing any Confidential Information or
proprietary materials of the Company.
8.
Assignment of Proprietary Rights. Other than the Proprietary Rights listed on the Schedule B attached hereto, if any, Consultant
hereby assigns and transfers to the Company all right, title and interest that Consultant may have, if any, in and to all Proprietary
Rights (whether or not patentable or copyrightable) made, conceived, developed, written or first reduced to practice by Consultant,
whether solely or jointly with others, during the period of Consultant’s engagement by the Company in connection with the
Services (“Inventions”). “Proprietary Rights” means any and all patent rights, copyright rights,
trademark rights, trade secret rights, mask work rights, sui generis database rights and all other intellectual property, industrial
property and proprietary rights recognized anywhere in the world, now or in the future.
Consultant
acknowledges and agrees that the Company shall have all right, title and interest in, among other items, all research information
and all documentation or manuals related thereto that Consultant develops or prepares for the Company during the period of Consultant’s
engagement by the Company and that such work by Consultant shall be work made for hire and that the Company shall be the sole
author thereof for all purposes under applicable copyright and other intellectual property laws. Consultant agrees promptly to
disclose in writing to the Company all Inventions in order to permit the Company to claim rights to which it may be entitled under
this Agreement. With respect to all Proprietary Rights which are assigned to the Company pursuant to this Section 8, Consultant
will assist the Company, at the Company’s expense, in any reasonable manner to obtain for the Company’s benefit patents
and copyrights thereon in any and all jurisdictions as may be designated by the Company, and Consultant will execute, when requested,
patent and copyright applications and assignments thereof to the Company, or other persons designated by the Company, and any
other lawful documents deemed necessary by the Company to carry out the purposes of this Agreement. Consultant will farther assist
the Company in every way to enforce any patents, copyrights and other Proprietary Rights of the Company.
9.
Trade Secrets of Others. Consultant represents to the Company that its performance of all the terms of this Agreement does
not and will not breach any agreement to keep in confidence proprietary information or trade secrets acquired by Consultant in
confidence or in trust prior to its engagement by the Company, and Consultant will not disclose to the Company, or induce the
Company to use, any confidential or proprietary information or material belonging to others. Consultant agrees not to enter into
any agreement, either written or oral, in conflict with this Section 9 of this Agreement.
10.
[Reserved.]
11.
Independent Contractor. Consultant shall not be deemed to be an employee or agent of the Company for any purpose whatsoever.
Consultant shall have the sole and exclusive control over its employees, consultants or independent contractors who provide Services
to the Company, and over the labor and employee relations policies and policies relating to wages, hours, working conditions or
other conditions of its employees, consultants or independent contractors.
12.
Non-Solicit. Consultant will not, during the term this Agreement and for three months thereafter, directly or indirectly
(whether as an owner, partner, shareholder, agent, officer, director, employee, independent contractor, consultant, or otherwise)
with or through any individual or entity: (i) employ, engage or solicit for employment any individual who is an employee of the
Company, or otherwise seek to adversely influence or alter such individual’s relationship with the Company; or (ii) solicit
or encourage any individual or entity that is a customer or vendor of the Company to terminate or otherwise alter his, her or
its relationship with the Company or any of its affiliates.
13.
Equitable Remedies. In the event of a breach or threatened breach of the terms of Section 6, 7, 8 or 12 of this Agreement
by Consultant, the parties hereto acknowledge and agree that it would be difficult to measure the damage to the Company from such
breach, that injury to the Company from such breach would be impossible to calculate and that monetary damages would therefore
be an inadequate remedy for any breach. Accordingly, the Company, in addition to any and all other rights which may be available,
shall have the right of specific performance, injunctive relief and other appropriate equitable remedies to restrain any such
breach or threatened breach without showing or proving any actual damage to the Company.
14.
Supercedes. This Agreement supersedes any prior written and verbal agreements between Consultant and the Company relating
to the subject matter hereof.
15.
Governing Law. This Agreement shall be governed, construed and interpreted in accordance with the internal laws of the
State of California. In the event a judicial proceeding is necessary, the sole forum for resolving disputes arising under or relating
to this Agreement are the state and Federal courts located in Los Angeles, California, and the parties hereby consent to the jurisdiction
of such courts, and that venue shall be in Los Angeles, California.
16.
Entire Agreement: Modifications and Amendments. The terms of this Agreement are intended by the parties as a final expression
of their agreement with respect to such terms as are included in this Agreement and may not be contradicted by evidence of any
prior or contemporaneous agreement. The Schedules A and B referred to in this Agreement is incorporated into this Agreement by
this reference. This Agreement may not be modified, changed or supplemented, nor may any obligations hereunder be waived or extensions
of time for performance granted, except by written instrument signed by the parties or by their agents duly authorized in writing
or as otherwise expressly permitted herein.
17.
Attorneys’ Fees. Should any party institute any action or proceeding to enforce this Agreement or any provision hereof,
or for damages by reason of any alleged breach of this Agreement or of any provision hereof, or for a declaration of rights hereunder,
the Consultant shall be entitled to receive from the Company all costs and expenses, including reasonable attorneys’ fees,
incurred in connection with such action or proceeding.
18.
Assignment. This Agreement and the rights, duties and obligations hereunder may be assigned or delegated by Consultant.
19.
Binding Effect: Successors and Assignment. This Agreement and the provisions hereof shall be binding upon each of the parties,
their successors and permitted assigns.
20.
Validity. This Agreement is intended to be valid and enforceable in accordance with its terms to the fullest extent permitted
by law. If any provision of this Agreement is found to be invalid or unenforceable by any court of competent jurisdiction, the
invalidity or unenforceability of such provision shall not affect the validity or enforceability of all the remaining provisions
hereof.
21.
Notices. All notices and other communications hereunder shall be in writing and, unless otherwise provided herein, shall
be deemed duly given if delivered personally or by telecopy or mailed by registered or certified mail (return receipt requested)
or by Federal Express or other similar courier service to the parties at the following addresses or (at such other address for
the party as shall be specified by like notice). Additionally, an email shall be sent with a copy of all written notices.
(i)
If to the Company:
DigiPath,
Inc.
Attn:
President
0000
Xxxxxxx Xxxxxx #000
Xxx
Xxxxx, XX 00000
Phone:
Email:
xxxx@xxxxxxxx.xxx
(ii)
If to the Consultant:
Any
such notice, demand or other communication shall be deemed to have been given on the date personally delivered or as of the date
mailed, as the case may be.
22.
Limitation of Liability. Notwithstanding anything to the contrary set forth herein, Consultant shall not be liable to the
Company for any loss of business or profits or replacement costs or for indirect, incidental, punitive, or consequential damages
for any cause of action, whether in contract, tort, or otherwise even if Consultant has been or should have known of the possibility
of such damages. In no event shall the aggregate liability of Consultant arising out of, or relating in any way to, this Agreement
exceed the aggregate amount of the Consulting Fees actually paid to Consultant pursuant to Section 2 hereof during the twelve
(12) month period prior to the action giving rise to any claim.
23.
Indemnification. The Company agrees to indemnify and hold harmless Consultant and its affiliates, and the respective officers,
directors, employees, agents and representatives of Consultant, its affiliates and each other person, if any, controlling Consultant
or any of its affiliates (Consultant and each such other person and entity being an “Indemnified Person”) from and
against any losses, claims, damages or liabilities related to, arising out of or in connection with this Agreement, and will reimburse
each Indemnified Person for all expenses incurred by such Indemnified Party (including reasonable fees and expenses of counsel)
in connection with investigating, preparing, pursuing or defending any action, claim, suit, investigation or proceeding related
to, arising out of or in connection with this Agreement, whether or not pending or threatened and whether or not any Indemnified
Person is a party (collectively, “Damages”). The Company will not, however, be responsible for any Damages that have
resulted from the willful misconduct or gross negligence of any Indemnified Person. Any Damages incurred by an Indemnified Person
shall be paid by the Company in advance of the final disposition of such claim, suit, investigation or proceeding upon receipt
of a written undertaking by or on behalf of such Indemnified Person to repay such amount if it shall ultimately be determined
that such Indemnified Person is not entitled to be indemnified by the Company pursuant to this Section 23.
[Signature
Page Follows]
IN
WITNESS WHEREOF, the parties hereto have executed this Consulting, Confidentiality, and Proprietary Rights Agreement as of the
Effective Date written above.
| | CONSULTANT |
| | | |
| | By: | /s/
Xxxxx Xxxxxx |
| | Name: | Xxxxx
Xxxxxx |
| | Title: | President |
| | | |
| | DigiPath,
Inc. |
| | | |
| | By: | /s/
Xxxx Xxxxxx |
| | Name: | Xxxx
Xxxxxx |
| | Title: | CEO
& President |
Schedule
A
| | a. | Consultant
will have the title of Consultant |
| | b. | Consultant
will provide advice and guidance in the following areas; |
| 2. | SCHEDULE
AND COMMITMENT OF TIME: |
Consultant
is expected to devote as much time as needed to assist in fulfilling responsibilities in item 1 above.
Consultant
shall report regularly, and not less frequent than twice per week, to Board of Directors his actions on behalf of the Company.
The Consultant shall keep a detailed list of all communications as required by the Company.
| | a. | Upon
signing of this agreement, Company shall pay Consultant a fee of $5,000 per month (the
“Consulting Fee”). |
SCHEDULE
B
LIST
OF PRIOR INVENTIONS
AND ORIGINAL
WORKS OF AUTHORSHIP
| Title | | Date | | Identifying
Number or Brief Description |
| | | | | |
| | | | | |
| | | | | |
| | | | | |
| [X] | No
inventions or improvements |
| [ ] | Additional
Sheets Attached |
| Signature of Consultant: | /s/ Xxxxx Xxxxxx | |
| Print Name of Consultant: | Xxxxx Xxxxxx | |
| Date: | December 10, 2014 | |
