CONSULTING AGREEMENT
This Consulting Agreement (this "Agreement") is made as of December 23,
2003 ("Effective Date") by and between NanoSignal Corporation Inc., a Nevada
Corporation (the "Company"), and Xxxx Xxxxxxxxxxx and Xxx Xxxxxxx, residents of
Nevada (("Consultants").
RECITALS
WHEREAS, the Company and Consultants desire to work together for the
purposes of Consultants providing advice, training seminars, training manuals
and on-site technical service consultant services and Company retaining
Consultants for advice in the operation of its business, and
WHEREAS, the Company wishes to retain Consultants, and Consultants wish to
be retained by the Company to assist the Company in meeting the objectives
identified herein.
NOW, THEREFORE, in consideration of the foregoing and of the covenants,
agreements, representations and warranties hereinafter contained, and other good
and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the Company and Consultants agree as follows:
1. Retention. The Company hereby agrees to retain Consultants and
Consultants agree to be available to serve the Company during the
Consulting Period (as hereinafter defined), as a consultant and
advisor, which shall include such reasonable consulting and advisory
services for the Company as may be requested by the Company or
someone acting pursuant to its authorization.
2. Duties of Consultant. The Consultants agree to perform the
consulting services (the "Services") set forth for the purposes of
assisting the Company in training seminars, training manuals and
on-site technical services in the Company's business. Consultants
shall perform the services and shall devote such time and attention
to consulting and advising as shall be reasonably requested by the
Company. Consultants may, at Consultants' own expense, use employees
or other subcontractors to assist Consultant with the performance of
the services.
3. Term. The consulting period shall commence as of the effective date
of this Agreement, and shall continue for a period of nine months
(the "Consulting Period").
4. Status of Consultant. Consultants understand and agree that
Consultants are not employees of the Company and that Consultants
are not entitled to receive employee benefits from the Company,
including, but not limited to, sick leave, vacation, retirement,
death benefits or automobile expense. Consultants shall be
responsible for providing, at Consultants' expense and in
Consultants' name, disability, worker's compensation or other
insurance as well as licenses and permits usual or necessary
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for conducting the services hereunder. Furthermore, Consultants
shall pay, when and as due, any and all taxes incurred as a result
of Consultants' compensation hereunder, including estimated taxes,
and shall provide Company with proof of said payments, upon demand.
Consultants hereby agree to indemnify the Company for any claims,
losses, costs, fees, liabilities, damages or injuries suffered by
the Company arising out of Consultants' breach of this Section 4.
5. Compensation. The Company shall compensate Consultants with the
issuance of six million shares of the Company's common stock. This
fee is due upon execution of this agreement, subject to the filing
of a Registration Statement on Form S-8 to register the Shares. This
fee is subject to the parameters of section 2. This fee is full
payment for all services rendered by Consultants. There shall be no
additional fees due to Consultants.
6. Termination on Notice. The Company may terminate this Agreement at
any time by giving fifteen (15) days written notice to Consultants.
Consultants shall have the obligation to provide services up to and
until the effective date of such termination, should the Company
request such services in writing. In the event of this termination
all fees, which are paid to consultant will be considered earned and
fully paid. Consultants shall be under no obligation to return any
compensation received.
7. Automatic Termination. This Agreement terminates automatically on
the occurrence of the death or disability of Consultants, or upon
mutual termination by both parties.
8. Return of Company Property. Upon the termination or expiration of
this Agreement, Consultants shall immediately transfer to the
Company all files (including, but not limited to, electronic files),
records, documents, drawings, specifications, equipment and similar
items in Consultants' possession relating to the business of the
Company or its Confidential Information (as defined herein)
(including the work product of Consultants created pursuant to this
Agreement).
9. Property Belonging to Company. Consultants agree that all
developments, ideas, devices, improvements, discoveries, apparatus,
practices, processes, methods, concepts and products (collectively
the "Inventions") developed by Consultants during the term of this
Agreement are the exclusive property of the Company and shall belong
to the Company. Consultants agree to assign the Inventions to the
Company, provided, however, notwithstanding the foregoing,
Consultants shall not be required to assign its rights in any
invention which Consultants developed entirely on Consultants' own
time without using the Company's equipment, supplies, facilities or
trade secret information except for those inventions that either (i)
relate at the time of conception or reduction to practice of the
invention to the Company's business, or actual or demonstrably
anticipated research of development of the Company or (ii) result
from any work performed by Consultants for the Company.
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10. Access to Confidential Information. Consultants agree that during
the term of the business relationship between Consultants and the
Company, Consultants will have access to and become acquainted with
confidential proprietary information ("Confidential Information"),
which is owned by the Company and is regularly used in the operation
of the Company`s business. Consultants agree that the term
"Confidential Information" as used in this Agreement is to be
broadly interpreted and includes (i) information that has, or could
have, commercial value for the business in which the Company is
engaged, or in which the Company may engage at a later time, and
(ii) information that, if disclosed without authorization, could be
detrimental to the economic interests of the Company. Consultants
agree that the term "Confidential Information" includes, without
limitation, any patent, patent application, copyright, trademark,
trade name, service xxxx, service name, "know-how," negative
"know-how", trade secrets, customer and supplier identities,
characteristics and terms of agreement, details of customer or
consultant contracts, pricing policies, operational methods,
marketing plans or strategies, product development techniques or
plans, business acquisition plans, science or technical information,
ideas, discoveries, designs, computer programs (including source
codes), financial forecasts, unpublished financial information,
budgets, processes, procedures, formulae, improvements or other
proprietary or intellectual property of the Company, whether or not
written or tangible form, and whether or not registered, and
including all memoranda, notes, summaries, plans, reports, records,
documents and other evidence thereof. Consultants acknowledge that
all Confidential Information, whether prepared by Consultants or
otherwise acquired by Consultants in any way, shall remain the
exclusive property of the Company.
11. No Unfair Use by Consultant. Consultants promise and agree that
Consultants (which shall include Consultants' employees and
contractors) shall not misuse, misappropriate, or disclose in any
way to any person or entity any of the Company's Confidential
Information, either directly or indirectly, nor will Consultants use
the Confidential Information in any way or at any time except as
required in the course of Consultants' business relationship with
the Company. Consultants agree that the sale or unauthorized use of
the Company's Confidential Information constitutes unfair
competition. Consultants promise and agree not to engage in any
unfair competition with the Company and will take measures that are
appropriate to prevent its employees or contractors from engaging in
unfair competition with the Company.
12. Further Acts. Consultants agree that, at any time during the term of
this Agreement or any extension thereof, upon the request of the
Company and without further compensation, but at no expense to
Consultants, Consultants shall perform any lawful acts, including
the execution of papers and oaths and the giving of testimony, that
in the opinion of the Company, its successors or assigns, may be
necessary or desirable in order to obtain, sustain, reissue and
renew, and in order to enforce perfect, record and maintain, patent
applications and United States and foreign patents on the Company's
inventions, and copyright registrations on the Company's inventions.
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13. Obligations Survive Agreement. Consultants' obligations under this
agreement shall survive the expiration or termination of this
Agreement for a period of five (5) years.
14. Representations by Consultant. Consultants represents that
Consultants have the qualifications and ability to perform the
services in a professional manner, without the advice, control or
supervision of the Company. Consultants shall indemnify, defend and
hold harmless the Company, and the Company's officers, directors and
shareholders from and against any and all claims, demands, losses,
costs, expenses, obligations, liabilities, damages, recoveries and
deficiencies, including, without limitation, interest, penalties and
reasonable attorney fees and costs, that the Company may incur or
suffer and that arise, result from or are related to any breach or
failure of Consultants to perform any of the representations,
warranties and agreements contained in this Agreement. Consultants
are providing these services only for training and on-site technical
support.
15. Assignment of Rights or Delegation of Duties by Consultants;
Company's Right to Assign. Consultants' rights and benefits under
this Agreement are personal to Consultants and therefore no such
right or benefit shall be subject to voluntary or involuntary
alienation, assignment or transfer. However, the consultant will be
allowed as part of this agreement to assign any and all of the
payment of the services to third parties, agents, officers,
employees, and other consultants in its efforts to provide services
as pursuant to this agreement.
16. Entire Agreement. This Agreement supersedes any and all other
agreements, either oral or in writing, between the parties with
respect to the subject matter hereof and contains all of the
covenants and agreements between the parties with respect to the
services to be rendered by Consultants to the Company in any manner
whatsoever. Each party to this Agreement acknowledges that no
representations, inducements, promises or agreements, orally or
otherwise, have been made by any party, or anyone acting on behalf
of any party, which are not embodied herein, and that no other
agreement, statement or promise not contained in this Agreement
shall be valid or binding on either party.
17. Waiver. No waiver of any term or provisions of this Agreement will
be valid unless such waiver is in writing signed by the party
against whom enforcement of the waiver is sought. No waiver or
breach of any agreement or provision of this Agreement shall be
deemed a waiver of any preceding or succeeding breach thereof or a
waiver or relinquishment of any other agreement or provision or
right or power contained in this Agreement.
18. No Third Party Beneficiary. Nothing in this Agreement, whether
expressed or implied, is intended to create any third party
beneficiary obligations and the parties hereto specifically declare
that no person or entity, other than as set forth in this Agreement,
shall have any rights hereunder or any right of enforcement
hereunder.
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19. Severability. If any term or provision of this Agreement is found to
be invalid, illegal or unenforceable under present or future laws
effective during the term of this Agreement, then and, in that event
(i) the performance of the offending term or provision (but only to
the extent its application is invalid, illegal or unenforceable)
shall be excused as if it had never been incorporated in to this
Agreement, and, in lieu of such excused provision as may be possible
and be legal, valid and enforceable, and (ii) the remaining part of
this Agreement shall not be affected thereby and shall continue in
full force and effect to the fullest extent provided by law.
20. Preparation of Agreement. It is acknowledged by each party that such
party either had separate and independent advice of counsel or the
opportunity to avail itself or himself of same. In light of these
facts it is acknowledged that no party shall be construed to be
solely responsible for the drafting hereof, and therefore any
ambiguity shall not be construed against any party as the alleged
draftsman of this Agreement.
21. Notices. All notices, requests, demands, and other communications
under this Agreement shall be in writing and shall be deemed to have
been duly given (i) on the date of service if served personally on
the party to whom notice is to be given, (ii) by private
airborne/overnight delivery service or on the fifth day after
mailing if mailed to the party to whom notice is to be given, by
first class mail, registered or certified, postage prepaid, and
properly addressed to the parties at their current address of
record.
22. Attorneys' Fees and Costs. In the event that any legal proceeding is
brought to enforce or interpret any of the rights or obligations
under this Agreement, the prevailing party shall be entitled to
recover reasonable attorneys' fees, costs and disbursements in
addition to any other relief to which the prevailing party may be
entitled.
23. Governing Law; Venue. This Agreement shall be governed by and
construed in accordance with the laws of the State of Nevada. Venue
for a legal or equitable action between the Company and Consultants,
which relates to this Agreement shall be in the County of Xxxxx.
24. Remedies. It is understood and agreed that this Agreement is
intended to confer a benefit, directly or indirectly, on the Company
and that any breach will result in termination of this agreement.
25. Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original but all of
which shall constitute one and the same instrument.
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IN WITNESS WHEREOF, the parties have executed this Agreement on the day
and year first indicated above.
COMPANY
NanoSingal Corporation
By: /s/ Xxxxxxxx Madoff
-------------------------------------
Xx. Xxxxxxxx Madoff, CEO
CONSULTANTS
By: /s/ Xxxx Xxxxxxxxxxx
-------------------------------------
Xxxx Xxxxxxxxxxx.
By:/s/Xxx Xxxxxxx
-------------------------------------
Xxx Xxxxxxx
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