EXHIBIT 10.17
CONSULTING AGREEMENT FOR NON-TECHNICAL SERVICES
EFFECTIVE DATE: OCTOBER 15, 2001
THIS CONSULTING AGREEMENT FOR NON-TECHNICAL SERVICES (the "Agreement")
is made by and between REPEATER TECHNOLOGIES, INC. ("Client"), a Delaware
corporation, and Seascape Services, Inc. a Nevada corporation, ("Consultant").
1. ENGAGEMENT OF SERVICES. Client may issue Project Assignments to
Consultant in the form attached to this Agreement as Exhibit A ("Project
Assignment"). Subject to the terms of this Agreement, Consultant will render the
services set forth in Project Assignment(s) accepted by Consultant by the
completion dates set forth therein.
2. COMPENSATION. Client will pay Consultant the fee set forth in each
Project Assignment for services rendered pursuant to this Agreement. Consultant
will be reimbursed only for expenses which are expressly provided for in a
Project Assignment or which have been approved in advance in writing by Client,
provided Consultant has furnished such documentation for authorized expenses as
Client may reasonably request. Payment of Consultant's fees and expenses will be
in accordance with terms and conditions set forth in the applicable Project
Assignment. Upon termination of this Agreement for any reason, Consultant will
be paid fees on the basis stated in the Project Assignment(s) for work which has
been completed.
3. OWNERSHIP OF WORK PRODUCT. Consultant hereby assigns to Client all
right, title and interest in and to any work product created by Consultant, or
to which Consultant contributes, pursuant to this Agreement (the "Work
Product"), including all copyrights, trademarks and other intellectual property
rights contained therein. Consultant agrees to execute, at Client's request and
expense, all documents and other instruments necessary or desirable to confirm
such assignment, including without limitation, the copyright assignment set
forth as Exhibit B ("Assignment of Copyright"). In the event that Consultant
does not, for any reason, execute such documents within a reasonable time of
Client's request, Consultant hereby irrevocably appoints Client as Consultant's
attorney-in-fact for the purpose of executing such documents on Consultant's
behalf, which appointment is coupled with an interest.
4. ARTIST'S AND MORAL RIGHTS. If Consultant has any rights, including
without limitation "artist's rights" or "moral rights," in the Work Product
which cannot be assigned, Consultant agrees to waive enforcement worldwide of
such rights against Client. In the event that Consultant has any such rights,
that cannot be assigned or waived, Consultant hereby grants to Client an
exclusive, worldwide, irrevocable, perpetual license to use, reproduce,
distribute, create derivative works of, publicly perform and publicly display
the Work Product in any medium or format, whether now known of later developed.
5. REPRESENTATIONS AND WARRANTIES. Consultant represents and warrants
that: (a) Consultant has the right and unrestricted ability to assign the Work
Product to Client as set forth in Section 3 (including without limitation the
right to assign any Work Product created by Consultant's employees or
contractors), and (b) the Work Product will not infringe upon any copyright,
patent, trademark, right of publicity or privacy, or any other proprietary right
of any person, whether contractual, statutory or common law. Consultant agrees
to indemnify Client from any and all damages, costs, claims, expenses or other
liability (including reasonable attorneys' fees)
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arising from or relating to the breach or alleged breach by Consultant of the
representations and warranties set forth in this Section 5.
6. INDEPENDENT CONTRACTOR RELATIONSHIP. Consultant's relationship with
Client is that of an independent contractor, and nothing in this Agreement is
intended to, or should be construed to, create a partnership, agency, joint
venture or employment relationship. Consultant will not be entitled to any of
the benefits which Client may make available to its employees, including, but
not limited to, group health or life insurance, profit-sharing or retirement
benefits. Consultant is not authorized to make any representation, contract or
commitment on behalf of Client unless specifically requested or authorized in
writing to do so by a Client officer. Consultant is solely responsible for, and
will file, on a timely basis, all tax returns and payments required to be filed
with, or made to, any federal, state or local tax authority with respect to the
performance of services and receipt of fees under this Agreement. Consultant is
solely responsible for, and must maintain adequate records of, expenses incurred
in the course of performing services under this Agreement. No part of
Consultant's compensation will be subject to withholding by Client for the
payment of any social security, federal, state or any other employee payroll
taxes. Client will regularly report amounts paid to Consultant by filing Form
1099-MISC with the Internal Revenue Service as required by law.
7. CONFIDENTIAL INFORMATION. Consultant agrees to hold Client's
Confidential Information in strict confidence and not to disclose such
Confidential Information to any third parties. "Confidential Information" as
used in this Agreement shall mean all information disclosed by Client to
Consultant that is not generally known in the Client's trade or industry and
shall include, without limitation, (a) concepts and ideas relating to the
development and distribution of content in any medium or to the current, future
and proposed products or services of Client or its subsidiaries or affiliates;
(b) trade secrets, drawings, inventions, know-how, software programs, and
software source documents; (c) information regarding plans for research,
development, new service offerings or products, marketing and selling, business
plans, business forecasts, budgets and unpublished financial statements,
licenses and distribution arrangements, prices and costs, suppliers and
customers; (d) existence of any business discussions, negotiations or agreements
between the parties; and (e) any information regarding the skills and
compensation of employees, contractors or other agents of the Client or its
subsidiaries or affiliates. Confidential Information also includes proprietary
or confidential information of any third party who may disclose such information
to Client or Consultant in the course of Client's business. Consultant's
obligations set forth in this Section 7 shall not apply with respect to any
portion of the Confidential Information that Consultant can document by
competent proof that such portion: (a) was in the public domain at the time it
was communicated to Consultant by Client; (b) entered the public domain through
no fault of Consultant, subsequent to the time it was communicated to Consultant
by Client; (c) was in Consultant's possession free of any obligation of
confidence at the time it was communicated to Consultant by Client; (d) was
rightfully communicated to Consultant free of any obligation of confidence
subsequent to the time it was communicated to Consultant by the Client; (e) was
developed by employees or agents of Consultant independently of and without
reference to any information communicated to Consultant by Client; or (f) was
communicated by Client to an unaffiliated third party free of any obligation of
confidence. In addition, Consultant may disclose Client's Confidential
Information in response to a valid order by a court or other governmental body,
as otherwise required by law. All Confidential Information furnished to
Consultant by Client are the sole and exclusive property of Client or its
suppliers or customers. Upon request by Client, Consultant agrees to
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promptly deliver to Client the original and any copies of the such Confidential
Information.
8. NO CONFLICT OF INTEREST. During the term of this Agreement,
Consultant will not accept work, enter into a contract, or accept an obligation
from any third party, inconsistent or incompatible with Consultant's
obligations, or the scope of services rendered for Client, under this Agreement.
Consultant warrants that there is no other contract or duty on its part
inconsistent with this Agreement. Consultant agrees to indemnify Client from any
and all loss or liability incurred by reason of the alleged breach by Consultant
of any services agreement with any third party. Nothing in this paragraph is
intended to restrict or limit Xxxxxxx X. Xxxxxx'x ability to obtain gainful
employment with a third party, as long as he does not breach his obligations to
Client of confidentiality or non-interference as an assignee of Consultant.
9. TERM AND TERMINATION.
9.1 TERM. The term of this Agreement is for four and one-half
(4.5) months from the Effective Date set forth above, unless earlier terminated
as provided in this Agreement.
9.2 TERMINATION BY CLIENT. Client may terminate this Agreement at
any time upon five (5) days prior written notice to Consultant in the event of a
material breach by Consultant of this Agreement or any Project Assignment,
provided that, such breach remains uncured at the end of such five (5) day
period or immediately in its sole discretion upon Consultant's material breach
of Sections 7 ("Confidential Information") 8 ("No Conflict of Interest") or 10
("Noninterference with Business").
9.3 SURVIVAL. The rights and obligations contained in Sections 3
("Ownership of Work Product"), 4 ("Artist's and Moral Rights"), 5
("Representations and Warranties"), 7 ("Confidential Information") and 10
("Noninterference with Business") will survive any termination or expiration of
this Agreement.
10. NONINTERFERENCE WITH BUSINESS. During this Agreement, and for a
period of one year immediately following its termination, Consultant agrees not
to interfere with the business of Client in any manner. By way of example and
not of limitation, Consultant agrees not to solicit any employee to terminate or
breach an employment, contractual or other relationship with Client.
11. SUCCESSORS AND ASSIGNS. Consultant may not subcontract or otherwise
delegate its obligations under this Agreement without Client's prior written
consent. Subject to the foregoing, this Agreement will be for the benefit of
Client's successors and assigns, and will be binding on Consultant's assignees.
12. NOTICES. Any notice required or permitted by this Agreement shall be
in writing and shall be delivered as follows with notice deemed given as
indicated: (i) by personal delivery when delivered personally; (ii) by overnight
courier upon written verification of receipt; (iii) by telecopy or facsimile
transmission upon acknowledgment of receipt of electronic transmission; or (iv)
by certified or registered mail, return receipt requested, upon verification of
receipt. Notice shall be sent to the addresses set forth below or such other
address as either party may specify in writing.
13. GOVERNING LAW. This Agreement shall be governed in all respects by
the laws of the United States of America and by the laws of the State of
California, as such laws are applied to agreements entered into and to be
performed entirely within California between California residents.
14. SEVERABILITY. Should any provisions of this Agreement be held by a
court of law to be illegal, invalid or unenforceable, the legality, validity and
enforceability of the remaining
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provisions of this Agreement shall not be affected or impaired thereby.
15. WAIVER. The waiver by Client of a breach of any provision of this
Agreement by Consultant shall not operate or be construed as a waiver of any
other or subsequent breach by Consultant.
16. INJUNCTIVE RELIEF FOR BREACH. Consultant's obligations under this
Agreement are of a unique character that gives them particular value; breach of
any of such obligations will result in irreparable and continuing damage to
Client for which there will be no adequate remedy at law; and, in the event of
such breach, Client will be entitled to injunctive relief and/or a decree for
specific performance, and such other and further relief as may be proper
(including monetary damages if appropriate).
17. ENTIRE AGREEMENT. This Agreement constitutes the entire agreement
between the parties relating to this subject matter and supersedes all prior or
contemporaneous oral or written agreements concerning such subject matter. The
terms of this Agreement will govern all services undertaken by Consultant for
Client; provided, however, that in the event of any conflict between the terms
of this Agreement and any Project Assignment, the terms of the applicable
Project Assignment will control. This Agreement may only be changed by mutual
agreement of authorized representatives of the parties in writing.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
"CLIENT" "CONSULTANT"
Repeater Technologies, Inc. Seascape Services, Inc.
By: /s/ Xxxxxxx X. Xxxxxxxx By: /s/ Xxxxxxx X. Xxxxxx 10/29/01
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Name: Xxxxxxx X. Xxxxxxxx Name: Xxxxxxx X. Xxxxxx
Title: Executive Vice President,
COO and CFO President
Address: Address:
0000 Xxxxx Xxxxxx 0000 Xxxx Xxxx Xxxx Xxxxxxxxx
Xxxxxxxxx, XX 00000 Xxxxx 000
Xxx Xxxxx, XX 00000
Telephone: 000-000-0000
Fax: 000-000-0000 Fax: 000-000-0000
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