Exhibit 10.1
CONSULTING AGREEMENT
CONSULTING AGREEMENT (the "Agreement) dated as of January 1, 2002 by
Tribeworks, Inc., a corporation organized under the laws of the State of
California with principal place of business at 000 Xxxxxx Xxxxxx, Xxx Xxxxxxxxx,
XX 00000 (the "Company"), and Xxxxxxx X. Xxxxxxxx (the "Consultant").
WHEREAS, the Company is engaged in the business of design, development,
marketing and publication of multimedia authoring and deployment technologies;
WHEREAS, the Company and Consultant desire to enter into this
Agreement, in order to ensure that the experience and skill of Consultant
related to the Company's business activities remain available to the Company for
a reasonable period of time hereafter upon such terms and conditions as stated
herein;
NOW THEREFORE, in consideration of the covenants and agreements
hereinafter set forth, and for other good and valuable consideration, the
receipt and adequacy of which are hereby acknowledged, it is hereby agreed as
follows:
Section 1. SERVICES. Consultant shall perform business consulting
services according to specifications and deadlines mutually agreeable to the
parties. These services shall include, but will not be limited to, the following
activities: MPEG-4 market assessment, merger and acquisition consultation, and
investor awareness consultation. Both parties understand and agree that these
services are separate and outside of the scope of the Consultant's role as a
member of the Company's Board of Directors. All services rendered hereunder
shall be performed by Consultant under the direction of the Company's management
and on a 'best effort basis'.
Section 2. COMPENSATION. Consultant shall be paid a consulting fee of
three-thousand three-hundred thirty-three dollars ($3,333) per month. Payments
are to be made in cash, although the parties agree to negotiate in good faith
for alternative methods of payment, including Company stock, or options to
purchase Company stock.
Section 3. TERM. This Agreement shall commence on the date hereof and
shall terminate on December 31, 2002. This Agreement shall not terminate if the
Consultant ceases to be a member of the Company's Board of Directors.
Section 4. OWNERSHIP OF WORK PRODUCTS. Provided all fees due to
Consultant according to the present agreement have been effectively paid to
Consultant, all developments, improvements, discoveries, inventions, products,
product formulae, drawings, procedures, processes, specifications, reports,
notes, documents, information and other materials made, conceived, reduced to
practice or developed by Consultant alone or with others, which directly result
from work performed by Consultant for the Company (the "Work Product"), and any
information Consultant may receive from the Company in the course of providing
the Services hereunder, shall be the property of the Company. The Company shall
have the sole right to make, have made, use, sell, license, disclose, publish,
produce derivative works or otherwise disseminate or transfer rights in such
Work Products.
Section 5. ASSIGNMENT OF RIGHTS.
a. Provided all fees due to Consultant according to the present
agreement have been effectively paid to Consultant, all Work Product, together
will all related rights (such as copyrights, patents, trademarks and trade
secrets) shall belong exclusively to the Company. In no case shall any Work
Product be considered a joint work or shall Consultant retain any interest in
it.
b. Consultant agrees:
(i) to disclose promptly all Work Product to the Company;
(ii) to assign, and Consultant hereby does assign, to the
Company all rights to such Work Product; and
(iii) to assist the Company in taking steps that may be
reasonably required for the Company to obtain or perfect its copyright, patent,
trademark, trade secret, or other rights worldwide, as the Company deems
appropriate, and the Company agrees to pay Consultant for his time in assisting
with legal formalities at Consultant's standard rate for such services and to
pay all reasonable out-of-pocket expenses incurred by Consultant in providing
this assistance.
c. The obligation to disclose, assign and assist set forth in
Section 6(b) shall survive termination or expiration of this Agreement.
d. Consultant shall obtain from his partners, employees and
agents, such agreements (which will be provided by the Company upon request from
Consultant) as will permit Consultant to fully comply with the provisions of
this Section 6.
Section 6. PRE-EXISTING OBLIGATIONS;INFRINGEMENT. Consultant represents
and warrants that neither Consultant nor his partners, employees or agents is
under any pre-existing obligation inconsistent with the provisions of this
Agreement. Consultant warrants that he has the right to disclose or use all
ideas, processes, techniques and other information, if any, which Consultant has
gained from third parties, which Consultant shall disclose to the Company in the
course of performance of this Agreement, without liability of Consultant to such
third parties. Consultant represents and warrants that he has not granted any
rights or licenses to any intellectual property or technology that would
conflict with Consultant's obligations under this Agreement. To the extent that
Consultant has intellectual property rights of any kind in any pre-existing
works which are subsequently incorporated in the Work Product, Consultant hereby
grants the Company a royalty-free, irrevocable, world-wide, non-exclusive
license to make, have made, use sell, license, disclose, publish produce
derivative works of or otherwise disseminate or transfer such subject matter.
Consultant will not knowingly infringe upon any copyright, patent, trade secret
or other property right of any former client, employer or third party in the
performance of the services required by this Agreement.
Section 7. RELATIONSHIP OF THE PARTIES. Consultant is an independent
contractor. Nothing in this Agreement shall be taken to create or imply any
partnership, agency or employment relationship between the Company and
Consultant. Except as set forth herein, Consultant will not be eligible for any
benefits applicable to the Company's employees. Consultant shall have no
authority to enter into contracts that bind the Company or create obligations on
the part of the Company without the prior written authorization for the Company.
Section 8. EFFECT OF TERMINATION.
a. Upon termination of this Agreement, Consultant shall deliver
to Company within ten (10) days from the effective date of termination of this
Agreement:
(i) Any property of the Company in the possession or control
of Consultant;
(ii) All Work Product, whether finished or unfinished,
prepared or produced by Consultant for the benefit of the Company under this
Agreement.
b. The termination of this Agreement shall not relieve Consultant
of his obligations under Sections 4 and 5 of this Agreement. Any licenses
granted to the Company hereunder shall survive any termination or expiration of
this Agreement. Notwithstanding any contrary terms in the present agreement, the
application of this clause is subjected to prior full payment to Consultant of
all fees due according to this agreement.
Section 9. NOTICES. All notices, requests, demands and other
communications under this Agreement shall be deemed to have been given if made
in writing and personally delivered or mailed, postage prepaid, to the addresses
set forth herein.
Section 10. MISCELLANEOUS PROVISIONS. This Agreement shall be governed,
construed, and performed in accordance with the laws of California. Any dispute,
controversy, or difference which may arise between the parties hereto out of or
in relation to or in connection with this Agreement, or any breach thereof,
shall be settled amicably between the parties, but in the event of a failure to
reach an amicable settlement, shall be finally resolved by arbitration in the
city where the main office of the defendant is located, pursuant to the American
Arbitration Association. Any waiver by Consultant or the Company of a breach of
any provision of this Agreement by the other party shall not operate or be
construed as a waiver of any subsequent breach by the other party. This
Agreement may be amended or modified only by a written instrument executed by
the parties hereto. In the event that any term or condition contained in this
Agreement shall be declared by any court or other judicial or administrative
body to be null, void or unenforceable, said provision shall survive to the
extent it is not so declared, and all of the other provisions of this Agreement
shall remain in full force and effect. This Agreement contains the entire
understanding between the parties hereto with respect to the matters set forth
herein and supercedes and replaces all prior and contemporaneous agreements and
understandings, oral or written, with regard to such matters. This Agreement may
be executed in counterparts, each of which shall be deemed an original, but all
of which shall constitute the same
instrument. The section headings in this Agreement are for convenience of
reference only and shall not be deemed to alter or affect any provision thereof.
* * *
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on
the date first written above.
TRIBEWORKS, INC.
By:/s/ XXXXXX X. XXXXXXXX
______________________
Name: Xxxxxx X. Xxxxxxxx
Title: Chief Financial Officer
XXXXXXX X. XXXXXXXX
/s/ XXXXXXX X. XXXXXXXX
_______________________
Name: Xxxxxxx X. Xxxxxxxx
Title: Individual
