Consulting Agreement
This Consulting Agreement (the "Agreement") is entered
into by and between TotalMed Systems, Inc. a
Florida corporation with a principal place of business at 0000
X.X. Xxxxxxx Xxxx, Xxxxx 000 Xxxx, Xxxxx Xxxxxxxx
00000 (the "Company"), and Xxx Xxxxxxx. an individual with a principal
place of business at 00 Xxxxxx Xxxxx, Xxxxxxxxxxx, XX 00000 (the "
Consultant").
RECITALS
A. The Company desires to obtain the services of
Consultant by means of services provided by
Consultant's employees dispatched by Consultant to provide
services to Company hereunder ("Agents"), on its own
behalf and on behalf of all existing and future Affiliated
Companies (defined as any corporation or other business
entity or entities that directly or indirectly
controls, is controlled by, or is under common control
with the Company), and Consultant desires to provide consulting set-
vices to the Company upon the following terms and
conditions.
B. The Company has spent significant time, effort, and
money to develop certain Proprietary Information (as defined
below), which the Company considers vital to its business and
goodwill.
C. The Proprietary Information will necessarily be
communicated to or acquired by Consultant and its Agents
in the course of providing consulting services to the
Company, and the Company desires to obtain the services of
Consultant, only if, in doing so, it can protect its
Proprietary Information and goodwill.
Accordingly, the parties agree as follows:
AGREEMENT
1. Consulting Period
(a) Basic Term The Company hereby retains the
Consultant and Consultant agrees to render to the Company
those services described in Section 2 for the period (the
"Consulting Period") commencing on the date of this Agreement
and ending upon the earlier of (i) 5/9/2005 (the "Term Date"),
as, and to the extent, extended under Section I (b) and (ii)
the date the Consulting Period is terminated in accordance
with Section 4. The Company shall pay Consultant the
compensation to which it is entitled under Section 3(a)
through the end of the Consulting Period, and, thereafter,
the Company's obligations hereunder shall end.
(b) Renewal Subject to Section 4, the
Consulting Period will be automatically renewed for an
additional 12 month period (without any action by either
party) on the Term Date and on each anniversary thereof,
unless one party gives to the other written notice at least
thirty (30) days in advance of the beginning of any 12 month
renewal period that the Consulting Period is to be
terminated. Either party's right to terminate the
Consulting Period under this Section I (b), instead of
renewing the Agreement, shall be with or without cause.
2. Duties, Responsibilities
(a) Consultant hereby agrees to provide and
perform for the Company those services set forth on Exhibit A
attached hereto. Consultant shall devote its best efforts to
the performance of the services and to such other services as
may be reasonably requested by the Company and hereby agrees
to devote, unless otherwise requested in writing by the
Company, (a minimum of at least 20 hours of service per
week/or assign a minimum of one individual to provide
services to the Company).
(b) Consultant shall use its best efforts
to furnish competent Agents possessing a sufficient
working knowledge of the Company's research, development
and services to fulfill Consultant's obligations
hereunder. Any Agent of Consultant who, in the sole opinion
of the Company, is unable to adequately perform any services
hereunder shall be replaced by Consultant within 3 days
after receipt of notice from the Company of its desire to
have such Agent replaced.
(c) Consultant shall use its best efforts to
comply with, and to ensure that each of its Agents comply
with, all policies and practices regarding the use of
facilities at which services are to be performed hereunder.
Consultant agrees and shall cause each of its Agents to
agree to the Acknowledgement and Inventions
Assignment attached hereto as Exhibit B, and Consultant
shall deliver a signed original of such Acknowledgement
and Inventions Assignment to Company prior to such Agent's
commencement of the provision of services for the
Company.
(d) Consultant shall obtain for the benefit
of the Company, as an intended third party beneficiary
thereof, prior to the performance of any services hereunder
by any of the Agents, the written agreement of Agent to be
bound by terms no less restrictive than the terms of Sections
2(c), 5(a), 6, and 7 of this Agreement.
(e) Personnel supplied by Consultant to
provide services to Company under this
Agreement will be deemed Consultant's employees or agents and
will not for any purpose be considered employees
or agents of Company. Consultant assumes full
responsibility for the actions of such personnel while performing
services pursuant to this Agreement, and shall be solely
responsible for their supervision, daily direction and
control, provision of employment benefits (if any) and
payment of salary (including all required withholding of
taxes).
3. Compensation, Benefits, Expenses
(a) Compensation In consideration of the
services to be rendered hereunder, including,
without limitation, services to any Affiliated Company,
Consultant shall be paid a fee of 1,000,000 shares, pursuant
to the procedures regularly established, and as they may be
amended, by the Company during the course of this
Agreement.
(b) Benefits Other than the compensation
specified in this Section 3, neither Consultant nor its
Agents shall be entitled to any direct or indirect
compensation for services performed hereunder.
(c) Expenses The Consultant shall be
responsible for any and all expenses incurred during the
term of this agreement.
4. Termination of Consulting Relationship
(a) By the Company or the Consultant At any
time, either the Company or the
Consultant may terminate, without liability, the Consulting
Period for any reason, with or without cause, by giving 10
days advance written notice to the other party. If the
Consultant terminates its consulting relationship with the
Company pursuant to this Section 4(a), the Company shall have
the option, in its complete discretion, to terminate
Consultant immediately without the running of any notice
period. The Company shall pay Consultant the compensation
to which the Consultant is entitled pursuant to Section 3(a)
through the end of the Consulting Period, and thereafter all
obligations of the Company shall terminate.
(b) Termination Due to Bankruptcy,
Receivership The Consulting Period shall terminate and the
Company's obligations hereunder (including the obligation to
pay Consultant compensation under Section 3 (a)) shall cease
upon the occurrence of. (i) the appointment of a receiver,
liquidator, or trustee for the Company by decree of
competent authority in connection with any adjudication or
determination by such authority that the Company is
bankrupt or insolvent; (ii) the filing by the Company of a
petition in voluntary bankruptcy, the making of an assignment
for the benefit of its creditors, or the entering into of a
composition with its creditors; or (iii) any formal action of
the Board to terminate the Company's existence or otherwise to
wind up the Company's affairs.
5. Termination Obligations
(a) Consultant hereby acknowledges and
agrees that all property, including, without
limitation, all books, manuals, records, reports, notes,
contracts, lists, blueprints, and other documents, or materials,
or copies thereof, Proprietary Information (as defined
below), and equipment furnished to or prepared by
Consultant or its Agents in the course of or incident to its
rendering of services to the Company, including, without
limitation, records and any other materials pertaining to
Invention Ideas (as defined below), belong to the Company
and shall be promptly returned to the Company upon
termination of the Consulting Period. Following termination,
neither Consultant nor any of its Agents will not retain
any written or other tangible material containing any
Proprietary Information.
(b) The representations and warranties
contained herein and Consultant's obligations
under Sections 5, 6, and 7 shall survive termination of the
Consulting Period and the expiration of this Agreement.
6. Proprietary Information
(a) Define "Proprietary Information" is all
information and any idea in whatever form, tangible or
intangible, pertaining in any manner to the business of the
Company or any Affiliated Company, or to its clients,
consultants, or business associates, unless: (i) the
information is or becomes publicly known through lawful
means; (ii) the information was rightfully in Consultant's
or its Agents' possession or part of its general knowledge
prior to the Consulting Period; or (iii) the information is
disclosed to Consultant or its Agents without confidential
or proprietary restrictions by a third party who
rightfully possesses the information (without
confidential or proprietary restriction) and did not learn of
it, directly or indirectly, from the Company.
(b) General Restrictions on Use Consultant
agrees to hold all Proprietary Information in strict
confidence and trust for the sole benefit of the Company and
not to, directly or indirectly, disclose, use, copy,
publish, summarize, or remove from Company's premises any
Proprietary Information (or remove from the premises any
other property of the Company), except (i) during the
Consulting Period to the extent necessary to carry out
Consultant's responsibilities under this Agreement, and (ii)
after termination of the Consulting Period as specifically
authorized in writing by the Company.
(c) Interference with Business; Competitive
Activities Consultant acknowledges that the
pursuit of the activities forbidden by this Section 6(c)
would necessarily involve the use or disclosure of Proprietary
Information in breach of Section 6(b), but that proof of
such breach would be extremely difficult. To forestall such
disclosure, use, and breach, and in consideration of
retaining Consultant under this Agreement, Consultant agrees
that for a period of one (1) year after termination of the
Consulting Period, it shall not, for itself or any third party,
directly or indirectly (i) divert or attempt to divert from
the Company (or any Affiliated Company) any business of
any kind in which it is engaged, including, without
limitation, the solicitation of or interference with any of its
suppliers or customers, (ii) employ, solicit for employment,
or recommend for employment any person employed by
the Company, or by any Affiliated Company, during the
Consulting Period and for a period of one (1) year
thereafter, or (iii) engage in any business activity that is
or may be competitive with the Company or any Affiliated
Company.
(d) Remedies Nothing in this Section 6 is
intended to limit any remedy of the Company under the Florida
Uniform Trade Secrets Act, or otherwise available under law.
7. Intellectual Property, Inventions and Ideas
(a) Defined. Statutory Notice The term
"Invention Ideas" means any and all ideas, processes,
trademarks, service marks, inventions, technology, computer
programs, original works of authorship, designs, formulas,
discoveries, patents, copyrights, and all improvements,
rights, and claims related to the foregoing that are
conceived, developed, or reduced to practice by the Consultant
alone or with others except to the extent that applicable
Florida laws, codes and statutes lawfully prohibits the
assignment of rights in such ideas, processes, inventions,
etc. State of Florida statutes provide for;
Any provision in an employment agreement
which provides that an employee
shall assign, or offer to assign, any of
his or her rights in an invention to his or
her employer shall not apply to an
invention that the employee developed
entirely on his or her own time
without using the employer's equipment,
supplies, facilities, or trade secret
information except for those inventions
that either:
(1) Relate at the time of conception
or reduction to practice of the
invention to the employer's business,
or actual or demonstrably anticipated
research or development of the employer.
(2) Result from any work performed by the
employee for the employer.
(b) Disclosure Consultant agrees to maintain adequate and current written
records on the development of all Invention Ideas and to disclose
promptly to the Company all Invention Ideas and relevant
records, which records will remain the sole property of the
Company. Consultant further agrees that all information
and records pertaining to any idea, process, trademark,
service xxxx, invention, technology, computer program,
original work of authorship, design, formula, discovery,
patent, or copyright that Consultant does not believe to be
an Invention Idea, but is conceived, developed, or reduced to
practice by Consultant (alone or with others) during
the Consulting Period or during the one year period following
termination of the Consulting Period, shall be
promptly disclosed to the Company (such disclosure to be
received in confidence). The Company shall examine
such information to determine if in fact the idea, process, or
invention, etc., is an Invention Idea subject to this
Agreement.
(c) Assignment Consultant agrees to
assign to the Company, without further
consideration, its entire right, title, and interest
(throughout the United States and in all foreign countries),
free and clear of all liens and encumbrances, in and to each Invention
Idea, which shall be the sole property of the Company,
whether or not patentable. In the event any Invention Idea
shall be deemed by the Company to be patentable or
otherwise registerable, Consultant shall assist the
Company (at its expense) in obtaining letters patent or other
applicable registrations thereon and shall execute all
documents and do all other things (including testifying at the
Company's expense) necessary or proper to obtain letters
patent or other applicable registrations thereon and to vest
the Company, or any Affiliated Company specified by the
Board, with full title thereto. Should the Company be
unable to secure Consultant's signature on any document
necessary to apply for, prosecute, obtain, or enforce any
patent, copyright, or other right or protection relating to
any Invention Idea, whether due to Consultant's mental or
physical incapacity or any other cause, Consultant hereby
irrevocably designates and appoints Company and each
of its duly authorized officers and agents as Consultant's
agent and attorney in fact, to act for and in Consultant's
behalf and stead and to execute and file any such document,
and to do all other lawfully permitted acts to further the
prosecution, issuance, and enforcement of patents,
copyrights, or other rights or protections with the same force and
effect as if executed and delivered by Consultant.
(d) Exclusions Consultant acknowledges that
there are no ideas, processes, trademarks, service marks,
technology, computer programs, original works of
authorship, designs, formulas, inventions, discoveries,
patents, copyrights, or improvements to the foregoing that
it desires to exclude from the operation of this Agreement.
To the best of Consultant's knowledge, there is no existing
contract in conflict with this Agreement or any other
contract to assign ideas, processes, trademarks, service
marks, inventions, technology, computer programs,
original works of authorship, designs, formulas,
discoveries, patents, or copyrights that is now in
existence between Consultant and any other person or entity.
(e) Post-Termination Period Because of the
difficulty of establishing when any idea, process,
invention, etc., is first conceived or developed by
Consultant, or whether it results from access to
Proprietary Information or the Company's equipment,
facilities, and data, Consultant agrees that any idea,
process, trademark, service xxxx, technology, computer
program, original work of authorship, design, formula,
invention, discovery, patent, copyright, or any improvement,
rights, or claims related to the foregoing shall be presumed
to be an invention Idea if it is conceived, developed, used,
sold, exploited, or reduced to practice by Consultant or
with the aid of Consultant within one (1) year after
termination of the Consulting Period. Consultant can rebut
the above presumption if it proves that the invention, idea,
process, etc., (i) was first conceived or developed after
termination of the Consulting Period, (ii) was conceived or
developed entirely on Consultant's own time without using
the Company's equipment, supplies, facilities, or
Proprietary Information, and (iii) did not result from
any work performed by Consultant for the Company. Nothing in
this Agreement is intended to expand the scope of protection
provided Consultant by State of Florida Code and Statutes.
8. Assignment; Successors and Assigns
Consultant agrees that it will not assign,
sell, transfer, delegate or otherwise dispose of, whether
voluntarily or involuntarily, or by operation of law, any
rights or obligations under this Agreement, nor shall
Consultant's rights be subject to encumbrance or the claims
of creditors. Any purported assignment, transfer, or
delegation shall be null and void. Nothing in this
Agreement shall prevent the consolidation of the Company
with, or its merger into, any other corporation, or the sale
by the Company of all or substantially all of its properties
or assets, or the assignment by the Company of this Agreement
and the performance of its obligations hereunder to any
successor in interest or any Affiliated Company. Subject to
the foregoing, this Agreement shall be binding upon and shall
inure to the benefit of the parties and their respective
heirs, legal representatives, successors, and permitted
assigns, and shall not benefit any person or entity other than
those enumerated above.
9. Notices
All notices or other communications required
or permitted hereunder shall be made in writing and shall be
deemed to have been duly given if delivered by hand or
mailed, postage prepaid, by certified or registered mail,
return receipt requested, and addressed to the Company at:
TotalMed Systems, Inc.
0000 X.X. Xxxxxxx Xxxx, Xxxxx 000
Xxxx, Xxxxx Xxxxxxxx 00000
or to the Consultant at:
Xxx Xxxxxxx
00 Xxxxxx Xxxxx
Xxxxxxxxxxx, XX 00000
Notice of change of address shall be effective only when done
in accordance with this Section.
10. Entire Agreement
The terms of this Agreement are intended by
the parties to be in the final expression of their
agreement with respect to the retention of Consultant by
the Company and may not be contradicted by evidence of any
prior or contemporaneous agreement. The parties further intend
that this Agreement shall constitute the complete and
exclusive statement of its terms and that no extrinsic
evidence whatsoever may be introduced in any judicial,
administrative, or other legal proceeding involving this
Agreement.
11. Amendments, Waivers
This Agreement may not be modified, amended,
or terminated except by an instrument in writing, signed by
a duly authorized representative of the Company and the
Consultant. By an instrument in writing similarly
executed, either party may waive compliance by the other
party with any provision of this Agreement that such
other party was or is obligated to comply with or
perform, provided, however, that such waiver shall not
operate as a waiver of, or estoppel with respect to, any
other or subsequent failure. No failure to exercise and no
delay in exercising any right, remedy, or power hereunder
shall operate as a waiver thereof, nor shall any single or
partial exercise of any right, remedy, or power hereunder
preclude any other or further exercise thereof or the
exercise of any other right, remedy, or power provided herein
or by law or in equity.
12. Severability Enforcement
If any provision of this Agreement, or the
application thereof to any person, place, or
circumstance, shall be held by a court of competent
jurisdiction to be invalid, unenforceable, or void, the remainder
of this Agreement and such provisions as applied to other
persons, places, and circumstances shall remain in full
force and effect. It is the intention of the parties that the
covenants contained in Sections 6 and 7 shall be enforced
to the greatest extent (but to no greater extent) in time,
area, and degree of participation as is permitted by the law
of
that jurisdiction whose law is found to be applicable to any
acts allegedly in breach of these covenants. It being the
purpose of this Agreement to govern competition by
Consultant anywhere throughout the world, these covenants
shall be governed by and construed according to that law
(from among those jurisdictions arguably applicable to
this Agreement and those in which a breach of this
Agreement is alleged to have occurred or to be threatened)
which best gives them effect.
13 Governing- Law
Subject to Section 12, the validity,
interpretation, enforceability, and performance of this
Agreement shall be governed by and construed in accordance
with the laws of the State of Florida.
14. Remedies
(a) Injunctive Relief The parties agree
that in the event of any breach or threatened breach of
any of the covenants in Sections 6 or 7, the damage or
imminent damage to the value and the goodwill of the
Company's business will be irreparable and extremely
difficult to estimate, making any remedy at law or
in damages inadequate. Accordingly, the parties agree that
the Company shall be entitled to injunctive relief against
Consultant in the event of any breach or threatened breach of any
such provisions by Consultant, in addition to an
other relief (including damages) available to the Company under
this Agreement or under law. It is agreed that an
other relief (including damages) shall not exceed 25% of all monies
paid to the Consultant up to the date of fin;
injunction.
(b) Exclusive Both parties agree that this
Agreement shall provide the exclusive
remedies for any breach by the Company of its terms.
15. Independent Contractor
The Consultant and its Agents shall operate
at all times as an independent contractor of the Company.
This Agreement does not authorize the Consultant or any of
its Agents to act for the Company as its agent or to make
commitments on behalf of the Company. The Company shall not
withhold payroll taxes, and
neither Consultant nor any of its Agents shall not be
covered by health, life, disability, or worker's
compensation insurance of the Company.
The parties have duly executed this Agreement
this 9th Day of May 2005.
TOTALMED SYSTEMS, INC.
Title:
By:
CONSULTANT
Title: Independent Contractor
By:
By
EXHIBIT A
Services to be provided
The Consultant shall provide to the Company research and
consultative services in th following areas:
* Private Placements
* Start-Ups
* Business consulting to currently operating public and private
companies.
* Restructuring currently operating companies
* Leveraged buy-outs of operating companies
EXHIBIT B
Acknowledgement and Inventions Assignment
I hereby:
1. Acknowledge that my employer, [name of employer]
("Employer"), is bound by the terms of its agreement with
TotalMed Systems, Inc. ("Company") to keep confidential
certain information that may be disclosed to me before or
during my service to my Employer on behalf of the Company and
acknowledge that under the terms of my
[employment/confidentiality] agreement with Employer, I am
bound and obligated by terms equally or more
restrictive of such terms regarding the confidentiality of
Company's information; and
2. Agree to assign to the Company, without further
consideration, all of my entire right, title, and interest
(throughout the United States and in all foreign countries),
free and clear of all liens and encumbrances, in any and all
intellectual property, including but not limited to, any and
all trademarks, copyrightable materials, inventions,
technology, computer programs, original works of authorship,
designs, formulas, and discoveries, created by me alone or
working with others while providing services to my Employer
for the benefit of the Company pursuant to the agreement
between my Employer and the Company, which shall be the sole
property of the Company, whether or not patentable, except to
the extent that Florida Labor Code Section 2870 lawfully
prohibits the assignment of rights in such ideas, processes,
inventions, etc.
Any provision in an employment agreement which provides that
an employee shall assign, or offer to assign, any of his or
her rights in an invention to his or her employer shall not
apply to an invention that the employee developed entirely on
his or her own time without using the employer's equipment,
supplies, facilities, or trade secret
information except for those inventions that either:
(1) Relate at the time of conception or reduction to practice
of the invention to the employer's business, or actual or
demonstrably anticipated research or development of the
employer.
(2) Result from any work performed by the employee for the
employer.
In the event any such intellectual property shall be deemed by
Company to be patentable or otherwise registerable, I shall
assist Company (at its expense) in obtaining letters patent or
other applicable registrations thereon and shall
execute all documents and do all other things (including
testifying at the Company's expense) necessary or proper to
obtain letters patent or other applicable registrations
thereon and to vest the Company, or Company specified by the
Company, with full title thereto. Should the Company be unable
to secure my signature on any document necessary to apply for,
prosecute, obtain, or enforce any patent, copyright, or other
right or protection relating to any
Invention Idea, whether due to my mental or physical
incapacity or any other cause, I hereby irrevocably designate
and appoint Company and each of its duly authorized officers
and agents as my agent and attorney in fact, to act for and in
my behalf and stead and to execute and file any such document,
and to do all other lawfully permitted acts to further the
prosecution, issuance, and enforcement of patents, copyrights,
or other rights or protections with the
same force and effect as if executed and delivered by me.
Signed:
Name:
Date: 5-9-2005
Xxx Xxxxxxx
(please print)
