Exhibit 10.31
CONSULTING AGREEMENT
This CONSULTING AGREEMENT ("Agreement") is entered into as of January
1, 2002 ("Effective Date") by and between JUNUM, INCORPORATED, a Delaware
Corporation ("Junum") and XXX X. XXXXXXX ("XXXXXXX").
1. RELATIONSHIP. During the term of this Agreement, Xxxxxxx will
provide services to Junum in connection with its initial and ongoing
relationship with NextTech Card Services, Inc. ("NextTech") as well as in
coordinating certain marketing activities of Junum such as assisting in its
website design and content, marketing strategies targeted at recruiting Junum
members, and other activities as may be defined during the relationship with
regard to Junum's overall marketing activities. Xxxxxxx shall use his best
efforts to perform the Services in a manner complementary to achieving the goals
established by Junum and agreed upon by Xxxxxxx and Junum prior to and during
the term of this Agreement.
2. CONSIDERATION. As consideration for the Services rendered by
Xxxxxxx, Junum shall pay to Xxxxxxx Seven Thousand Dollars ($7,000) per month
(the "Monthly Fee") payable in freely tradable Junum stock (the "Stock"). On the
third business day of each calendar month (the "Payment Day"), Junum shall issue
a Monthly Payment, as defined below, in Stock as payment for services rendered.
Prior to the Payment Day Xxxxxxx shall deliver to Junum an accounting of the
sale proceeds of the prior calendar month's Monthly Payment (the "Sale
Proceeds"). A "Monthly Payment" shall be equal to the Monthly Fee as adjusted
for any difference between the Sale Proceeds from the prior month's Monthly
Payment. For example, if the Sale Proceeds was $9,000 on a Monthly Payment of
$7,000, the next Monthly Payment would be adjusted to $5,000; or, if the Sale
Proceeds was $6,000 on a Monthly Payment of $7,000, the next adjusted Monthly
Payment would be $8,000.
3. EXPENSES. Xxxxxxx shall be reimbursed by Junum for expenses
incurred by in providing the services under this Agreement, provided they are
approved by Junum in writing. Xxxxxxx will submit to Junum reasonable evidence
that the amount was expended and related to Services provided under this
Agreement, and provide receipts relative to such expenditures (or other evidence
of such expenditures in cases where receipts are not available).
4. TERM AND TERMINATION. Xxxxxxx shall serve as consultant to Junum
for a period of five months commencing on the Effective Date (January 1, 2002)
and ending on May 31, 2002 ("Term"). During the Term of this Agreement, Xxxxxxx
shall devote an appropriate amount of time to the activities of Junum. Either
party may terminate this Agreement at any time in the event of a material breach
by the other party, which remains uncured after fifteen (15) days' written
notice thereof.
5. RENEWAL. It is agreed that Junum has the option to renew this
Agreement at the end of its term. Consideration will be (at minimum) consistent
with that specified in Section 2, above. The term of such renewal will be
determined at the time of such renewal.
6. STATE AND FEDERAL TAXES. Xxxxxxx shall pay all taxes incurred while
performing Services under this Agreement - including all applicable income taxes
and self-employment (Social Security) taxes. Under no circumstances will Junum:
(a) withhold FICA (Social Security and Medicare taxes) from
Xxxxxxx'x payments or make FICA payments on Xxxxxxx'x behalf,
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(b) make state or federal unemployment compensation
contributions on Xxxxxxx'x behalf, or
(c) withhold state or federal income tax from Xxxxxxx'x
payments.
7. DEFINITIONS. "Invention" means inventions, discoveries, concepts,
and ideas, whether patentable or not, including, but not limited to, processes,
methods, formulas, techniques, business programs, products, applications,
systems, components, technologies and business topics as well as improvements
thereof or know-how related thereto, concerning any present or prospective
activities of Junum with which Xxxxxxx becomes acquainted as a result of this
Agreement, whether or not disclosed by Junum.
"Confidential Information" as used throughout this Agreement
means any and all trade secrets and any and all data or information not
generally known outside of Junum whether prepared or developed by or for Junum
or received by Junum from any outside source. Without limiting the scope of this
definition, Confidential Information includes: any customer files, customer
lists, any business, marketing, financial or sales record, data, plan, or
survey; and any other record or information relating to the present or future
business, product, or service of Junum whether it is written, oral, audio tapes,
video tapes, computer discs, machines, prototypes, designs, specifications,
articles of manufacture, drawings, human or machine readable documents. All
Confidential Information and copies thereof are the sole property of Junum.
Confidential Information shall not include (i) such information in the public
domain at the time of the disclosure, or subsequently comes within the public
domain without fault of Xxxxxxx; (ii) such information which was in the
possession of Xxxxxxx at the time of disclosure that may be demonstrated by
business records of Xxxxxxx and was not acquired, directly or indirectly, from
Junum; or (iii) such information which Xxxxxxx acquired after the time of
disclosure from a third party who did not require Xxxxxxx to hold the same in
confidence and who did not acquire such technical information from Junum.
8. USE OF CONFIDENTIAL INFORMATION. Xxxxxxx shall:
(b) receive and maintain the Confidential Information in
confidence;
(c) not reproduce the Confidential Information or any part
thereof without the express written consent of Junum;
(d) not, directly or indirectly, make known, divulge, publish
or communicate the Confidential Information to any person, firm or corporation
without the express written consent of Junum;
(e) not use or utilize the Confidential Information without
the express written consent of Junum;
(f) not use the Confidential Information or any part thereof
as a basis for the design or creation of any method, system, apparatus or device
similar to any method, system, apparatus or device embodied in the Confidential
Information unless expressly authorized in writing by Junum; and
(g) utilize the best efforts possible to protect and
safeguard the Confidential Information from loss, theft, destruction, or the
like.
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9. RETURN OF CONFIDENTIAL INFORMATION. All information provided by
Junum shall remain the property of Junum. Xxxxxxx agrees to return all
Confidential Information to Junum within 20 days of written demand by Junum.
When Xxxxxxx has finished reviewing the information provided by Junum and has
made a decision as to whether or not to work with Junum, Xxxxxxx shall return
all information to the Junum without retaining any copies.
10. INTELLECTUAL PROPERTY OWNERSHIP. Xxxxxxx assigns to Junum all
rights in all designs, creations, improvements, original works of authorship,
formulas, processes, know-how, techniques, inventions and all other information
or items created by Xxxxxxx during the term of this Agreement. The rights
assigned include title and interest in all patent, copyright, trade secret,
trademark and other proprietary rights. Xxxxxxx shall help prepare any papers
that Junum considers necessary to secure any patents, copyrights, trademarks or
other proprietary rights at no charge to Junum. However, Junum shall reimburse
Xxxxxxx for reasonable out-of-pocket expenses incurred. Xxxxxxx agrees not to
use any of the intellectual property mentioned above for the benefit of any
other party without Junum's prior written permission.
11. FRINGE BENEFITS. Xxxxxxx is not eligible to participate in any
employee health, pension, sick pay, vacation pay or other fringe benefit plan of
Junum.
12. UNEMPLOYMENT COMPENSATION. Junum shall make no state or federal
unemployment compensation payments on behalf of Xxxxxxx. Xxxxxxx will not be
entitled to these benefits in connection with work performed under this
Agreement.
13. INSURANCE. Junum shall not provide any insurance coverage of any
kind for Xxxxxxx.
14. INDEMNIFY. Xxxxxxx shall indemnify and hold Junum harmless from
any loss or liability arising from performing Services under this Agreement.
15. EXCLUSIVE AGREEMENT. This document and any Attachments constitutes
the entire Agreement between the parties, and no promises or representations,
other than those contained herein and those implied by law, have been made by
Junum or Xxxxxxx. Any modifications to this Agreement must be in writing and
signed by Junum and Xxxxxxx.
16. SEVERABILITY. In the event any provision of this Agreement is
deemed to be void, invalid, or unenforceable, that provision shall be severed
from this Agreement so as not to cause the invalidity or unenforceability of the
remainder of this Agreement. All remaining provisions of this Agreement shall
then continue in full force and effect. If any provision shall be deemed invalid
due to its scope or breadth, such provision shall be deemed valid to the extent
of the scope and breadth permitted by law.
17. APPLICABLE LAW. This Agreement will be governed by the laws of the
State of California.
18. PARAGRAPH HEADINGS. The headings of particular paragraphs and
subparagraphs are inserted only for convenience and are not part of this
Agreement and are not to act as a limitation on the scope of the particular
paragraph to which the heading refers.
19. NOTICES. All notices and other communications in connection with
this Agreement shall be in writing and shall be considered given as follows:
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(a) when delivered personally to the recipient's address:
As to Junum Junum, Incorporated
0000 Xxxxxxxxx Xxxxx
Xxxxx Xxxx, XX 00000
As to Xxxxxxx: Xxx X. Xxxxxxx
0000 Xxxxx Xxxxxx
Xxxxxxxxx, XX 00000
(b) three days after being deposited in the United States
mail, with postage prepaid to the recipient's address as stated on this
Agreement, or
(c) when sent by fax or telex to the last fax or telex number
of the recipient known to the person giving notice. Notice is effective upon
receipt provided that a duplicate copy of the notice is promptly given by first
class mail, or the recipient delivers a written confirmation of receipt.
20. RESOLVING DISPUTES. If a dispute arises under this Agreement, the
parties agree to first try to resolve the dispute with the help of a mutually
agreed-upon mediator in California. Any costs and fees other than attorney fees
associated with the mediation shall be shared equally by the parties.
21. FAXED SIGNATURES. Xxxxxxx and Junum agree that signatures
transmitted by facsimile shall have the same effect as original signatures.
Signatures
JUNUM, INCORPORATED
/S/ Xxxxx Xxxxxxx
----------------------------------------- -----------------------------------
Xxxxx Xxxxxxx, Chief Executive Officer Date
CONSULTANT
/S/ Xxx X. Xxxxxxx
----------------------------------------- -----------------------------------
Xxx X. Xxxxxxx Date
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