Mikojo Inc. CONSULTING AGREEMENT
EXHIBIT
10.5
THIS
CONSULTING AGREEMENT (this “Agreement”)
is made and entered into as of January 24, 2010 (the “Effective
Date”), by and between Mikojo Inc., a Delaware corporation (the “Company”),
and Xxxxx Xxxx (the “Consultant”).
WHEREAS,
the Company desires consulting and similar services relating to the Company’s
business and products; and
WHEREAS,
the Consultant desires to contract with the Company to perform such
services;
NOW,
THEREFORE, in consideration of the mutual covenants hereinafter recited, the
sufficiency of which is hereby acknowledged, the parties agree as
follows:
1. Project. The
Consultant will serve as a consultant to the Company for a period commencing on
the Effective Date and concluding upon the completion of the project described
in Exhibit A (the
“Project”)
unless earlier terminated in accordance with Section 8 of this
Agreement.
2. Scope of
Work. The Consultant will perform the services set forth in
Exhibit A
attached hereto (the “Services”). Any
additions to or modifications of the Project or the Services will be set forth
in writing and will be signed by both parties. The performance of
services and the compensation for such services necessary to the completion of
such additions or modifications will be governed by this Agreement unless
otherwise described in a written agreement of the parties.
3. Fees and
Expenses.
(a) Consulting
Fees. The Company agrees to pay the Consultant for the
Services in accordance with the terms set forth in Exhibit B
attached hereto.
(b) Expense
Reimbursement. The Company agrees to reimburse the Consultant
for all reasonable, ordinary and necessary expenses incurred by the Consultant
in conjunction with the Services, consistent with the Company’s standard
reimbursement policy, in an amount not to exceed $250 in the aggregate per
month with the Company’s prior written approval.
4. Payments. The
Company will pay each invoice submitted hereunder within 30 days of receipt
thereof.
5. Noninterference. During
the term of this Agreement, and for 12 months thereafter, the Consultant will
not directly or indirectly, without the prior written consent of the Company,
either on the Consultant’s own behalf or on behalf of any third party, disrupt,
damage, impair or interfere with the business of the Company whether by way of
interfering with or raiding Company’s directors, officers, employees, agents,
consultants, vendors, suppliers, partners, customers, clients or other third
parties with which the Company does business, or in any manner attempting to
persuade, solicit, recruit, encourage or induce any such persons to discontinue
their relationship with the Company.
6. Confidentiality.
(a) Definition. For
purposes of this Agreement, “Confidential
Information” means any information related to any aspect of the business
of the Company (including any person or entity directly or indirectly controlled
by or controlling the Company, or in which any of the aforesaid have at least a
50% interest) which is either (i) information not known by the trade
generally, even though such information may be disclosed to one or more third
parties pursuant to agreements entered into by the Company, or (ii) is
proprietary information of the Company, whether of a technical nature or
otherwise. Confidential Information includes “Inventions” (as defined
below), any other inventions, trade secrets, original works, findings, reports,
disclosures, processes, systems, methods, formulae, procedures, concepts,
compositions, techniques, drawings, models, diagrams, flow charts, research,
data, devices, machinery, copyrights, copyright applications, patents, patent
applications, trademarks, trademark applications, intellectual property,
instruments, materials, products, patterns, compilations, programs, techniques,
sequences, designs, research or development activities and plans,
specifications, documentation, algorithms, software, computer programs, source
code, object code, mask works, costs of production, contract forms, prices,
pricing policies and similar financial data, volume of sales, promotional
methods, marketing plans and techniques, identities of and information regarding
customers, clients and personnel, lists of vendors or suppliers, business plans,
business opportunities, financial statements and other financial
information. Confidential Information also includes the confidential
or proprietary information of the Company’s consultants, vendors, suppliers,
partners, customers, clients and other parties with which it does
business.
(b) Nondisclosure. The
Consultant acknowledges that Confidential Information is of great value to the
Company. Accordingly, the Consultant agrees to hold all Confidential
Information in confidence and not disclose, use, copy, publish, summarize or
remove from the premises of the Company any Confidential
Information. Upon the expiration or termination of this Agreement,
the Consultant agrees (i) to promptly deliver to the Company all papers,
records, data, notes, drawings, files, documents, samples, devices, products,
equipment and other materials, including copies and in whatever form, relating
to the Company that the Consultant possesses or creates, whether or not
confidential or proprietary, (ii) to not disclose, use, copy, publish,
summarize or remove from the premises of the Company any Confidential
Information, and (iii) to promptly execute and deliver to the Company the
“Termination Certificate” attached hereto as Exhibit C.
7. Inventions and
Original Works of Authorship.
(a) Definition. For
purposes of this Agreement, “Inventions”
means any and all ideas and discoveries, including, without limitation,
inventions, trade secrets, original works of authorship, findings, reports,
disclosures, processes, systems, methods, formulae, procedures, concepts,
compositions, techniques, drawings, models, diagrams, flow charts, research,
data, devices, machinery, intellectual property, instruments, materials,
products, patterns, compilations, programs, techniques, sequences, designs,
specifications, documentation, algorithms, software, computer programs, source
code, object code and mask works, as well as improvements thereof or know-how
related thereto, whether copyrightable or patentable or not, which are made by
the Consultant, alone or in combination with others, either pursuant to the
provision of Services under this Agreement, or with the use of or as a result of
access to Confidential Information, including but not limited to any derivative
work which constitutes an improvement or modification to any tangible form of
Confidential Information, such as any design, drawing, or product that embodies
Confidential Information.
(b) Ownership and
Assignment. All Inventions, and all documentation and notes
related thereto, made or conceived by the Consultant during the term of this
Agreement and specifically in performance of the services contemplated
hereunder, will, to the maximum extent permitted by law, be “works made for
hire” and will become and remain the sole and exclusive property of the
Company. The Consultant will promptly notify the Company in writing
of all Inventions so conceived or made by the Consultant. To the
extent that ownership of such Inventions does not automatically vest in the
Company, the Consultant hereby assigns and agrees to assign to the Company or
its designees, without further consideration, the Consultant’s entire right,
title, and interest in and to all Inventions made or conceived during
performance of this Agreement, including all rights to obtain, register,
perfect, and enforce patents, copyrights, mask work rights, and other
intellectual property rights and protections with respect thereto, whether or
not patent or copyright applications are filed thereon.
(c) Power of
Attorney. During the term of this Agreement and as
necessary thereafter, the Consultant will assist the Company (at the Company’s
expense) to obtain and enforce patents, copyrights, mask work rights, and other
forms of intellectual property protection on Inventions. If the
Company is unable because of the mental or physical incapacity of the Consultant
or for any other reason to secure the signature of the Consultant to apply for
or to pursue any application for any United States or foreign letters patent or
copyright registrations covering Inventions assigned to the Company pursuant to
Section 7(b), then the Consultant hereby irrevocably designates and
appoints the Company and its duly authorized officers and agents as the
Consultant’s agent and attorney in fact, to act for and on the Consultant’s
behalf and stead to execute and file any such applications and to do all other
lawfully permitted acts to further the prosecution and issuance of letters
patent or copyright registrations thereon.
(d) Moral
Rights. The Consultant also hereby irrevocably
transfers and assigns to Company, and agrees to irrevocably transfer and assign
to Company, and waives and agrees never to assert, any and all “Moral Rights”
(as defined below) that the Consultant may have in or with respect to any
Inventions made or conceived during performance of this Agreement, during and
after the term of this Agreement. “Moral
Rights” mean any rights to claim authorship of any Invention, to object
to or prevent the modification or destruction of any Invention, to withdraw from
circulation or control the publication or distribution of any Invention, and any
similar right, existing under judicial or statutory law of any country in the
world, or under any treaty, regardless of whether or not such right is called or
generally referred to as a “moral right.”
(e) Patent
Applications. If the Company files an original United States
patent application covering any invention of which the Consultant is a named
inventor, the Consultant will receive an inventor’s fee of $100.
(f) Further
Assurances. The Consultant will execute such documents as the
Company will reasonably require to evidence and confirm the transfer of rights
to the Company made under this Agreement.
8. Termination. Either
party will have the right to terminate this Agreement at any time upon written
notice. In the event of any termination of this Agreement, the Company will make
payments to the Consultant for all work performed in accordance with the terms
and conditions of this Agreement up to the date of termination, and the
Consultant will immediately return to the Company, without limitation, all
documents, drawings and any other items of whatever nature supplied to the
Consultant by the Company or owned by the Company pursuant to this
Agreement.
9. Survival. Each
and all of the terms, provisions and/or covenants of each of Sections 5 through
22 of this Agreement will, for any and all purposes whatsoever, survive the
termination of this Agreement.
10. Independent
Contractor/Taxes. Consultant is not an agent or employee of
the Company and has no authority to act on behalf of the Company or to otherwise
obligate or bind the Company by contract or otherwise. Except as
required by a final determination by the Internal Revenue Service or state
taxing authority and upon due notice to the other party, the Consultant and the
Company agree to treat the Consultant as an independent contractor for tax
purposes and to file all tax and information returns and pay all applicable
taxes on that basis.
11. Third Party
Contracts. The Consultant represents that except as disclosed
in writing to the Company, (a) there are no other contracts to assign Inventions
that are now in existence between any other party and the Consultant, and (b)
the Consultant has no employments, consultancies or undertakings which would
restrict or impair the Consultant’s performance of this
Agreement. However, the parties agree that this Agreement constitutes
a non-exclusive consultancy and that nothing contained herein shall prevent the
Consultant from entering into any other employments, consultancies,
undertakings, or contracts to assign Inventions, provided that such other
arrangements shall be disclosed to Company by Consultant. The Consultant will
not improperly use or disclose any proprietary information or trade secrets of
any former or current employer or other third party. The Consultant
will not bring onto the premises of the Company any unpublished documents or any
property belonging to any former or current employer or other third party unless
consented to in writing by such employer or such other third
party. If, in the course of the Consultant’s performance of this
Agreement, the Consultant incorporates a prior Consultant-owned invention into a
Company product, process or machine, the Company is hereby granted and will have
a nonexclusive, royalty-free, irrevocable, perpetual, worldwide license (with
rights to sublicense through multiple tiers of sublicensees) to make, have made,
modify, use and sell such prior invention.
12. Assignment. The
rights and liabilities of the parties hereto will bind and inure to the benefit
of their respective successors, heirs, executors and administrators, as the case
may be; provided, however, that as the Company has specifically contracted for
the services to be provided by the Consultant hereunder, the Consultant may not
assign or delegate the Consultant’s obligations under this Agreement either in
whole or in part without the prior written consent of the Company.
13. Governing Law;
Consent to
Jurisdiction. This Agreement will be governed by, and
construed in accordance with, the laws of the State of California, excluding
those laws that direct the application of the laws of another
jurisdiction. The Consultant hereby submits to the sole jurisdiction
and venue of the courts of the State of California for purposes of any action or
proceeding relating to this Agreement.
14. Injunctive
Relief. The Consultant acknowledges and agrees that damages
will not be an adequate remedy in the event of a breach of any of the
Consultant’s obligations under this Agreement. The Consultant therefore agrees
that the Company will be entitled (without limitation of any other rights or
remedies otherwise available to the Company and without the necessity of posting
a bond or other security) to obtain an injunction from any court of competent
jurisdiction prohibiting the continuance or recurrence of any breach of this
Agreement.
15. Arbitration. Except
as contemplated by Section 14, any controversy or claim arising out of, or
relating to, this Agreement or the breach of this Agreement will be settled by
arbitration by, and in accordance with the applicable Commercial Arbitration
Rules of the American Arbitration Association and judgment upon the award
rendered by the arbitrator(s) may be entered in any court having
jurisdiction. The arbitrator(s) will have the right to assess,
against a party or among the parties, as the arbitrator(s) deem reasonable, (a)
administrative fees of the American Arbitration Association, (b) compensation,
if any, to the arbitrator(s) and (c) attorneys’ fees incurred by a
party. Arbitration hearings will be held in San Mateo County,
California. The provisions of California Code of Civil Procedure
Section 1283.05 will apply to any arbitration.
16. Headings. The
headings in this Agreement are intended principally for convenience and will
not, by themselves, determine the rights and obligations of the parties to this
Agreement.
17. Attorneys’
Fees. The prevailing party in any suit brought to enforce its
rights under this Agreement will be entitled to reasonable attorneys’ fees and
costs.
18. Notices. All
notices, requests, demands, and other communications required by, or made in
connection with, this Agreement or the transactions contemplated by this
Agreement, will be in writing and will be deemed to have been duly given on the
date of delivery, if delivered in person, or three business days after mailing
if mailed by certified or registered mail, postage prepaid, return receipt
requested, addressed as follows:
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If
to the Company:
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Attention: Xxxxx
Xxxxx
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0000
Xxxxxxx Xxxxx, Xxxxx 000
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Xxxxxx
Xxxx, XX 00000
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If
to the Consultant:
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The
address listed on the signature page
hereto.
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Such
addresses may be changed, from time to time, by means of a notice given in the
manner provided in this Section 18.
19. Severability. If
any provision of this Agreement is held to be unenforceable for any reason, such
provision will be adjusted rather than voided, if possible, in order to achieve
the intent of the parties to the maximum extent possible. In any
event, all other provisions of this Agreement will be deemed valid and
enforceable to the full extent possible.
20. Waiver. The
waiver of any term or condition contained in this Agreement by any party to this
Agreement will not be construed as a waiver of a subsequent breach or failure of
the same term or condition or a waiver of any other term or condition contained
in this Agreement.
21. Counterpart and
Facsimile Signatures. This Agreement may be executed in two or
more counterparts, each of which will be deemed an original, but all of which
together will constitute one and the same instrument. This Agreement
may be executed by facsimile signature (including signatures in Adobe PDF or
similar format).
22. Entire Agreement;
Modifications. Except as otherwise provided herein or in the
exhibits hereto, this Agreement represents the entire understanding among the
parties with respect to the subject matter of this Agreement, and this Agreement
supersedes any and all prior and contemporaneous understandings, agreements,
plans, and negotiations, whether written or oral, with respect to the subject
matter hereof, including, without limitation, any understandings, agreements, or
obligations respecting any past or future compensation, bonuses, reimbursements,
or other payments to the Consultant from the Company. All
modifications to the Agreement must be in writing and signed by each of the
parties hereto.
[Remainder of Page
Intentionally Left Blank]
IN
WITNESS WHEREOF, the parties hereto have executed this Consulting Agreement as
of the Effective Date.
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Company:
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By:
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Xxxxx X.
Xxxxx 1/24/2010
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Xxxxx
X. Xxxxx
CEO Date
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Consultant:
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Xxxxx
Xxxx
1/24/2010
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Xxxxx Xxxx Date | |
| Address: _______________________________ | ||
| Telephone: ________________________________________ | ||
| Facsimile: ________________________________________ | ||
| Email: ________________________________________ | ||
EXHIBIT A
PROJECT
AND SCOPE OF SERVICES
The
Consultant’s services to the Company will include, without limitation, the
following:
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1.
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Assisting
the Company in developing business relationships , search scenarios andkey
word identification strategies appropriate for its
business as proposed to be
conducted;
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2.
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General
advice and assistance with respect to the Company’s advertising, ad
placement and business plan;
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3.
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General
advice and assistance relating to the Company’s sales Internet ad
building ; and
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4.
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Such
other general consulting services relating to the foregoing as the
Company’s Chief Executive Officer or Board of Directors may
request.
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The
Consultant will report to the Company’s Vice President of Internet
Advertising. The Consultant will provide services at the Consultant’s
or the Company’s facilities or at such other place as the Company and the
Consultant may mutually determine.
The
Company will not control in any way the methods used by the Consultant in
performing the Services. The Consultant will at all times, and at the
Consultant’s own expense, maintain all facilities, equipment, and
instrumentalities required to perform the Services, including without
limitation, office space, computer, printer, internet connection, facsimile,
paper, office supplies and telephone.
This
Agreement will terminate twelve months after the Effective Date, subject to the
ability of either party to terminate this Agreement pursuant to Section 8. The parties hereto may extend
the term of this Agreement by means of a written instrument executed by each of
them, including in counterparts.
EXHIBIT B
CONSULTING
FEES
In
recognition of the Company’s status as a startup that has not yet commenced
formal operations, the Consultant agrees not to accept any cash compensation for
the Services. In lieu of cash compensation, the Company’s management
will recommend to the Company’s Board of Directors that the Consultant be
granted a non-statutory option under the Company’s 2009 Stock Option/Stock
Issuance Plan (the “Plan”) to
purchase 100,000 shares of the Company’s Common Stock. The option
will be immediately exercisable with respect to all of the shares issuable
thereunder, but the shares will be subject to a right of repurchase at cost in
favor of the Company upon termination of this Agreement for any
reason. Such right of repurchase will lapse (i.e., vest) with respect
to 6.25% of the total number of shares three months after the Effective Date of
this Agreement and ratably monthly thereafter over an additional 45
months. The exercise price of the option will be the fair market
value of the Company’s Common Stock as of the date such option is granted
(currently $0.01).
Any
issuance, offer or sale of the Company’s shares (including shares issuable upon
exercise of the Consultant’s option) will be subject to compliance with state
and federal securities law and the terms of any underwriting, offering or
listing agreements.
Other
than as set forth above, the Company will pay the Consultant no other
compensation, whether in cash or non-cash form, for the Services.
The
Consultant and the Company acknowledge that the Company intends to seek outside
financing and to commence operations and that, after such time, the Company will
upon mutual agreement of the Consultant and the Company hire the Consultant as
the Company’s Internet Advertising Manager. In such event, the
Company will offer the Consultant a salary yearly of $90,000, a bonus plan
outline by the Board of Directors including stock options for performance
reviewed every six months and such other terms and conditions as are customary
for an employee of the Company at such time.
EXHIBIT C
TERMINATION
CERTIFICATE
This is
to certify that I do not have in my possession, nor have I failed to return, any
papers, records, data, notes, drawings, files, documents, samples, devices,
products, equipment, designs, computer programs or other materials, including
copies and reproductions of any of the aforementioned items, in whatever form,
relating to Mikojo, Inc. (the “Company”),
whether or not confidential or proprietary.
I further
certify that I have complied with all the terms of the Consulting Agreement by
and between the Company and me dated as of January 23,2
010 (the “Consulting
Agreement”).
Moreover,
I acknowledge and agree that, in compliance with the Consulting Agreement, I
will hold in confidence and will not disclose, use, copy, publish, summarize or
remove from the premises of the Company any “Confidential Information” (as
defined in the Consulting Agreement).
Date: ____________________
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Xxxxxxxx
Xxxx Cuda
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