EXHIBIT 10.10
CONSULTING AGREEMENT
Effective September 1, 2012, Numerity Corporation of 000 X Xx Xxxxxx Xxxx,
Xxxxxxxxx, XX 94087("Consultant") and IN Media Corporation of 0000 Xx Xxxxxx
Xxxx, Xxx 000, Xxx Xxxxx, XX 00000 ("Company") agree as follows:
1. Services and Payment. Consultant agrees to undertake and complete the
services ("Services," as further defined in Exhibit A) in accordance with and on
the schedule specified in Exhibit A. The scope of Services may be modified upon
written consent by both parties by modification of Exhibit A. As the only
consideration due Consultant regarding the subject matter of this Agreement,
Company will pay Consultant in accordance with Exhibit B.
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 in connection with Services or any
Proprietary Information (as defined below) (collectively, "Inventions") and
Consultant will promptly disclose and provide all Inventions to Company.
Consultant hereby makes all assignments necessary to accomplish the foregoing
ownership. Consultant shall 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, coupled with an
interest, to act for and on 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 learns, develops or
obtains in connection with Services or that are received by or for Company in
confidence, constitute "Proprietary Information." Consultant shall 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 or 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, email 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 agrees
that during the period that it is to be providing Services (i) and for three (3)
years thereafter, Consultant will not encourage or solicit any employee or
consultant of Company to leave Company for any reason and (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. Without limiting the
foregoing, Consultant may perform services for other persons, provided that such
services do not represent a conflict of interest or a breach of Consultant's
obligation under this Agreement or otherwise.
d. To the extent allowed by law, Section 2.a and any license granted
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. 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, 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).
3. Warranty. Consultant warrants that: (i) the Services will be performed in a
professional and workmanlike manner and that none of such Services nor any part
of this Agreement is or will be inconsistent with any obligation Consultant may
have to others; (ii) all work under this Agreement shall be Consultant's
original work and none of the Services or Inventions nor 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 (iii) Consultant has the full
right to allow it to provide Company with the assignments and rights provided
for herein.
4. Termination. This Agreement shall terminate upon the earlier of (1)
completion of Services by Consultant (2) six months from date of agreement, or
(3) termination by either party as provided in this Section 4. If either party
breaches a material provision of this Agreement, the other party may terminate
this Agreement upon ten (10) days' notice, unless the breach is cured within the
notice period. Either party also may terminate this Agreement at any time, with
or without cause, upon thirty (30) days' notice to the other party, but, if (and
only if) such termination is by Company without cause, Company shall upon such
termination pay Consultant all unpaid amounts due for Services completed prior
to notice of such termination. Sections 2 (subject to the limitations set forth
in Section 2.c) through 9 of this Agreement and any remedies for breach of this
Agreement shall survive any termination or expiration.
5. Relationship of the Parties; Independent Contractor; No Employee Benefits.
Notwithstanding any provision hereof, Consultant is an independent contractor
and is not an employee, agent, partner or joint venturer of Company and shall
not bind nor attempt to bind Company to any contract without written approval of
the Board of Directors of the Company. Consultant shall accept any directions
issued by Company pertaining to the goals to be attained and the results to be
achieved by Consultant, but Consultant shall be solely responsible for the
manner and hours in which Services are performed under this Agreement.
Consultant shall not be eligible to participate in any of Company's employee
benefit plans, fringe benefit programs, group insurance arrangements or similar
programs. Company shall not provide workers' compensation, disability insurance,
Social Security or unemployment compensation coverage or any other statutory
benefit to Consultant. Consultant shall comply at Consultant's expense with all
applicable provisions of workers' compensation laws, unemployment compensation
laws, federal Social Security law, the Fair Labor Standards Act, federal, state
and local income tax laws, and all other applicable federal, state and local
laws, regulations and codes relating to terms and conditions of employment
required to be fulfilled by employers or independent contractors. Consultant
agrees to indemnify Company from any and all claims, damages, liability,
settlement, attorneys' fees and expenses, as incurred, on account of the
foregoing or any breach of this Agreement or any other action or inaction 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.
6. Non-Compete. During the term of this Agreement and three (3) years
thereafter, Consultant shall not, without Company's written consent, directly or
indirectly provide Services to any competing third party or encourage, advise,
assist or solicit any of Company's clients, vendors, employees or contractors to
reduce or terminate their business or employment relationship with Company.
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7. 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. Company may
assign its rights and obligations under this agreement in whole or part.
8. 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 to such other address as such party last provided
to the other by written notice.
9. Miscellaneous. Any breach of Section 2 or 3 will cause irreparable harm to
Company for which damages would not be an adequate remedy, and therefore,
Company will be entitled to injunctive relief with respect thereto in addition
to any other remedies. 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. No changes or modifications or waivers to this Agreement will be
effective unless in writing and signed by both parties. 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. This Agreement shall be governed by and construed in accordance
with the laws of the State of California without regard to the conflicts of laws
provisions thereof. In any action or proceeding to enforce rights under this
Agreement, the prevailing party will be entitled to recover costs and attorneys'
fees. Headings herein are for convenience of reference only and shall in no way
affect interpretation of the Agreement.
/s/ Xxxxx Xxxxxx /s/ Xxx Xxxxx
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IN Media Corporation. (Consultant)
By Xxx Xxxxx, Director
For Numerity Corporation
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EXHIBIT A
SERVICES
Consultant shall provide the following services to the company. The TERM of the
services will continue until the Sooner of (1) services are completed to the
Satisfaction of the Company (2) the approved budget cap is spent or (3) the
agreement is terminated under section 4.
* identify target customers for and obtain their product specs,
roadmaps, and purchase requirements.
* IDEntify key engineering and product development contacts at target
customers and build relationships of understanding in advance of our
sales push.
* identify and specIFY our performance discrepancies between customer
projected needs and our projected performance, and liase with our
engineering dept to design modifications, improvements and new
features into our product development roadmap
* write up product worksheets so as to emphasize the features and
potential applications, and work with sales management to prepare
product spec sheets and promotional material.
* conduct detailed examination of processes and procedures to minimise
the Elapsed time between customer acceptance of our solution and
integration into their production ready offerings
* Establish logical milestones for test and evaluation purposes, and
appropriate test procedures to monitor and measure tracking with those
milestones
* write up product worksheets so as to emphasize the features and
potential applications, and work with sales management to prepare
product specs.
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EXHIBIT B
COMPENSATION
Company will pay Consultant at the rate of $40,000 per calendar month as the
only compensation for the services provided under this Agreement.
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