EXHIBIT 10.1
CONSULTING AGREEMENT
THIS AGREEMENT is entered into as of December 16, 2000 by Sense
Holdings, Inc. a corporation organized and existing under the laws of the State
of Florida having its principal place of business at 0000 Xxxx XxXxx Xxxx,
Xxxxxxx, XX 00000 ("Company") and Shanghai Yazheng Information Technology
Company, Limited. a company organized and existing under the laws of the City of
Shanghai, China having its principal place of business Suite 1103, 000-0 Xxxx
Xxxxxxx Xxxx, Xxxxxxxx, X.X. Xxxxx ("Consultant", the owner: Fugen Li,
President: Fugen Li.
WITNESSETH:
In consideration of the premises and mutual covenants hereinafter
contained, the parties hereto agree as follows:
1. THE SERVICES
The consultant will search for a Chinese partner to form a joint
venture in China to manufacture, market and distribute SEHO's biometric
identification systems that include the CheckPrint Time and Attendance (T/A)
software developer's kit (SDK). The kit includes a universal serial bus (USB)
fingerprint reader, proprietary APIs, DLLs, and documentation. This joint
venture will market the CheckPrint T/A Time and Attendance solution to business
owners in China. The solution fits into companies ranging from 15 employees to
50,000 employees. The joint venture plans to implement their proprietary
technology to mass merchant retailers such as the Walmarts and Kmarts in China.
The joint venture will also market the CheckPrint A/C access control solution to
businesses and facilities in China for security access. The joint venture also
plans to implement its SmartCard technology applications into medical
facilities, universities and corporate in China. The Typical I-Card applications
include securing and managing medication disbursement, test results, treatment
schedules, student meal plans, library privileges, computer lab usage, and
advanced corporate security systems. A retail version of I-Card is also in
development for loyalty and frequency programs. The proprietary I-Card has been
designed to store medical history, work records, education history, bank account
information, and most other forms of critical information.
2. WORK FOR HIRE
It is the intention of the parties hereto that all rights, including
without limitation copyright in any reports, surveys, marketing promotional and
collateral materials prepared by the Consultant pursuant to the terms of this
Agreement, or otherwise for Company (hereinafter "the Work") vest in Company.
The parties expressly acknowledge that the Work was specially ordered or
commissioned by Company, and further agree that it shall be considered a "Work
Made for Hire" within the meaning of the copyright laws of the United States and
that Company is entitled as author to the copyright and all other rights
therein, throughout the world, including, but not limited to, the right to make
such changes therein and such uses thereof, as it may determine in its sole and
absolute discretion.
3. PROPRIETARY INFORMATION
a. For purposes of this Agreement, "proprietary information" shall mean
any information relating to the business of Company or any entity in which
Company has a controlling interest and shall include (but shall not be limited
to) information encompassed in all drawings, designs, programs, plans, formulas,
proposals, marketing and sales plans, financial information, costs, pricing
information, customer information, and all methods, concepts or ideas in or
reasonably related to the business of Company.
b. Consultant agrees to regard and preserve as confidential, all
proprietary information, whether Consultant has such information in memory or in
writing or other physical form. Consultant shall not, without written authority
from Company to do so, directly or indirectly, use for the benefit or purposes,
nor disclose to others, either during the term of its engagement hereunder or
thereafter, except as required by the conditions of Consultant's engagement
hereunder, any proprietary information.
c. Consultant shall not disclose any reports, recommendations,
conclusions or other results of the Services or the existence or the subject
matter of this contract without the prior written consent of Company. In
Consultant's performance hereunder, Consultant shall comply with all legal
obligations it may now or hereafter have respecting the information or other
property of any other person, firm or corporation.
d. The Consultant expressly agrees that the covenants set forth in this
Paragraph are being given to Company in connection with the engagement of the
Consultant by Company and that such covenants are intended to protect Company
against the competition by the Consultant, within the terms stated, to the
fullest extent deemed reasonable and permitted in law and equity. In the event
that the foregoing limitations upon the conduct of the Consultant are beyond
those permitted by law, such limitations, both as to time and geographical area,
shall be, and be deemed to be, reduced in scope and effect to the maximum extent
permitted by law.
e. The foregoing obligations of this Paragraph shall not apply to any
part of the information that (i) has been disclosed in publicly available
sources of information, (ii) is, through no fault of the Consultant, hereafter
disclosed in publicly available sources of information, (iii) is now in the
possession of Consultant without any obligation or confidentiality, or (iv) has
been or is hereafter lawfully disclosed to Consultant by any third party, but
only to the extent that the use or disclosure thereof has been or is rightfully
authorized by that third party.
4. FEES AND REIMBURSEMENT OF CERTAIN EXPENSES
a. Company shall pay Consultant a consulting fee in the form of
unrestricted stock. The Consultant expects to provide approximately 60% of the
working time of Xx. Xx for at least the initial six months of the Agreement, and
will provide sufficient services and commitments of time of Xx. Xx for the
balance of the term of the Agreement. The Company will therefore issue
Consultant three Hundred Thousand (300,000) shares of unrestricted stock (OTCBB:
SEHO) upon signing of this Agreement.
b. The Consultant shall provide to the Company 12-month consulting
services to locate a partner in China to form a joint venture for marketing,
manufacturing and distributing the Company's products in China.
5. BENEFITS
The Consultant, as an independent contractor, shall not be entitled to
any other benefits.
6. DUTY TO REPORT INCOME
The Consultant acknowledges and agrees that it is an independent
contractor and not an employee of the Company and that it is Consultant's sole
obligation to report as income all compensation received from Company pursuant
to this Agreement. The Consultant further agrees that the Company shall not be
obligated to pay withholding taxes, social security, unemployment taxes,
disability insurance premiums, or similar items, in connection with any payments
made to the Consultant pursuant to the terms of this Agreement.
7. TERM
This Agreement shall be effective beginning as of 1st day of January
2001, and shall continue until 31st day of December 2001.
8. NOTICES
All notices and xxxxxxxx shall be in writing and sent via first class
mail to the respective addresses of the parties set forth at the beginning of
this Agreement or to such other address as any party may designate by notice
delivered hereunder to the other party.
9. GENERAL
a. The terms and conditions of Paragraphs 3, 4 and 5 hereof shall
survive the termination of this Agreement or completion of the Services as the
case may be.
b. Neither the Company nor Consultant shall assign this Agreement or
delegate its duties hereunder and shall not subcontract any of the Services to
be performed hereunder without the prior written consent of the other party
hereto.
c. Consultant shall perform the Services as an independent contractor
and shall not be considered an employee of Company or Partner, joint venture or
otherwise related to Company for any purpose.
d. This Agreement shall be governed by the laws of the City of Shanghai
, China.
e. This Agreement constitutes the entire understanding between
Consultant and Company respecting the Services described herein. The terms and
conditions of any purchase order shall have no effect upon this Agreement and
shall be used for accounting purposes only.
f. The failure of either party to exercise its rights under this
Agreement shall not be deemed to be a waiver of such rights or a waiver of any
subsequent breach.
g. Any delay or nonperformance of any provision of this Agreement
caused by conditions beyond the reasonable control of the performing party shall
not constitute a breach of this Agreement, provided that the delayed party has
taken reasonable measures to notify the other of the delay in writing. The
delayed party's time for performance shall be deemed to be extended for a period
equal to the duration of the conditions beyond its control. "Conditions beyond a
party's reasonable control" include, but are not limited to, natural disasters,
acts of government after the date of the Agreement, power failure, fire, flood,
acts of God, labor disputes, riots, acts of war and epidemics. Failure of
subcontractors and inability to obtain materials shall not be considered a
condition beyond a party's reasonable control.
h. Non-Solicitation of Consultant's Employees: Company agrees not to
knowingly hire or solicit Consultant's employees during performance of this
Agreement and for a period of two years after termination of this Agreement
without Consultant's written consent.
i. Mediation and Arbitration: 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 Las Vegas, Nevada. Any costs and fees other
than attorney fees associated with the mediation shall be shared equally by the
parties. If the dispute is not resolved through mediation, the parties agree to
submit the dispute to binding arbitration in Florida under the rules of the
American Arbitration Association. Judgment upon the award rendered by the
arbitrator may be entered in any court with jurisdiction to do so.
j. Attorney Fees: If any legal action is necessary to enforce this
Agreement, the prevailing party shall be entitled to reasonable attorney fees,
costs and expenses.
k. Complete Agreement: This Agreement together with all exhibits,
appendices or other attachments, which are incorporated herein by reference, is
the sole and entire Agreement between the parties. This Agreement supersedes all
prior understandings, agreements and documentation relating to such subject
matter. In the event of a conflict between the provisions of the main body of
the Agreement and any attached exhibits, appendices or other materials, the
Agreement shall take precedence. Modifications and amendments to this Agreement,
including any exhibit or appendix hereto, shall be enforceable only if they are
in writing and are signed by authorized representatives of both parties.
IN WITNESS WHEREOF, the parties hereto have duly executed this
Agreement as of the date first above written.
Sense Holding, Inc.
By: /s/ Dore S. Perler
Dore S. Perler
President
Shanghai Yazheng Information
Technology Limited
By: /s/Fugen Li
Fugen Li
President
