Exhibit 10.16
GOHEALTH.MD, INC.
CONSULTING AGREEMENT
THIS AGREEMENT made on this the 20th day of April 2000, between
GOHEALTH.MD, INC., a Delaware corporation ("Company ") whose principal place
of business is located at ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ and
▇▇▇▇ ▇▇▇▇▇▇▇▇ ("Consultant") whose address is ▇.▇. ▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇.
IN CONSIDERATION of their mutual promises set forth below, and for other
good and valuable consideration, the Company hereby engages Consultant as an
independent contractor at this time, and for other valuable consideration,
receipt of which is hereby acknowledged, Consultant hereby covenants and
agrees with the Company as follows, and Consultant hereby intends to be
legally bound by the following:
1. Work and Compensation. Consultant shall personally create for the
Company the Work described in Exhibit "A" for the compensation set forth in
Exhibit "B". Consultant understands that the compensation set forth in
Exhibit "B" is the total compensation for its services in creating the Work
and that Consultant shall not receive royalties of any kind at any time.
2. Ownership of Work and Rights in Work. Consultant hereby assigns to
the Company and its successors and assigns all of its right, title, interest
and ownership in the Work, including but not limited to copyrights,
trademarks, patents, and trade secret rights and the rights to secure any
renewals, reissues, and extensions thereof. Consultant understands that the
Company may register the copyright and other rights in the Work in the
Company's name. Consultant hereby agrees to sign such applications,
documents, assignment forms and other papers as the Company requests from time
to time to further confirm this assignment. Consultant further understands
that the Company has full, complete and exclusive ownership of the Work.
Consultant agrees not to use the Work for the benefit of anyone other than the
Company, without the Company's prior written permission.
3. Work Made for Hire. Consultant understands and agrees that the Work
is a "work made for hire" as defined by the laws of the United States
regarding copyrights.
4. Confidentiality. Consultant will not at any time do or attempt to do
any of the following, either directly or indirectly: Disclose, use or
communicate to any person, firm, or Company any trade secrets, confidential
information or any other information concerning the business, products,
services, prices, suppliers, finances or operations of the Company.
Consultant agrees to treat such information at all times as confidential.
Consultant further agrees that each of the following are trade secrets of the
Company, are confidential information, are proprietary to the Company, and are
owned exclusively by the Company, and that the disclosure of any of the
following would be harmful and damaging to the Company's business:
A. Customer names and addresses, customer lists, customer histories,
customer information reports, any other customer information, sales
techniques, pricing methods, prices, price lists, tester's names and
addresses, supplies, suppliers' names and addresses, supplier and supply
lists, advertising, advertising copy and programs, endorsers' names and
addresses, inventory, inventory lists, sales reports, financial statements and
reports, operating statements, advertisements, employees' names and addresses,
independent contractors' names and addresses, employee lists, independent
contractor lists, computer programs, computer software, printouts, backups,
computer disks and diskettes, and computer databases.
B. All information relating to the Work being performed by me under this
Agreement, regardless of its type or form, including this Agreement and all
attachments to this Agreement.
C. Ideas, concepts, designs and plans which are specifically involved
with products created, designed, enhanced or sold by the Company and which are
not otherwise known to the public.
This itemization of trade secrets is not exclusive; there may be other
information that is included within this covenant of confidentiality. This
information is confidential whether or not it is expressed on paper, disk,
diskette, magnetic media, optical media, monitor, screen, or any other medium
or form of expression. The protection Consultant promises to the Company
includes more than nondisclosure and nonuse of trade secrets and confidential
information, which are protected by law without this Agreement.
5. Documents Belong to Company. Consultant agrees that all books,
papers, records, lists, files, forms, reports, accounts, documents, manuals,
handbooks, instructions, computer programs, computer software, computer disks
and diskettes, printouts, backups, and computer databases relating in any
manner to the Company's business, products, services, programs, software,
prices, vendors, suppliers or customers, whether prepared by me or anyone
else, are the exclusive property of the Company. In addition, all papers,
notes, data, reference material, documentation, programs, diskettes
(demonstration or otherwise), magnetic media, optical media, printouts,
backups, and all other media and forms of expression that in any way include,
incorporate or reflect any trade secrets or confidential information of the
Company (as defined above) are the exclusive property of the Company.
Consultant shall immediately return said items to the Company upon termination
of its engagement or earlier at the Company's request at any time.
6. Not Solicit Customers, Suppliers, Advertisers, Contractors or
Employees. Consultant will not do or attempt to do any of the following in
the United States of America or Canada, either directly or indirectly, during
its engagement or during the period of two (2) years after its engagement
terminates: solicit, employ, call upon, compete for, sell to, divert, or take
away any of the customers, suppliers, endorsers, advertisers, contractors or
employees of the Company.
7. Non-Compete. Consultant will not do or attempt to do any of the
following in the United States of America or Canada, either directly or
indirectly, during its engagement or during the period of two (2) years after
its engagement terminates: (a) compete against the Company; or (b) own,
manage, be employed by, be engaged by, work for, consult for, be an officer or
director or partner or manager or employee of, advise, represent, engage in,
or carry on any business that competes against the Company.
8. Remedies. Consultant agrees that this Agreement is important and
gravely affects the effective and successful conduct of the business of the
Company and affects its reputation and goodwill. Consultant agrees that this
Agreement is not contrary to the public health, safety or welfare. Consultant
agrees that, in case of breach of this Agreement, it shall be conclusively
presumed that irreparable injury would result to the Company and there would
be no adequate remedy at law. The Company is entitled to obtain temporary and
permanent injunctions to enforce this Agreement. The Company is entitled to
damages for any breach of the injunction, including but not limited to
compensatory, incidental, consequential, exemplary, punitive and lost-profits
damages.
9. Independent Contractor Relationship. Consultant is in business as a
corporation and its tax identification number is set forth below with its
signature. Consultant is an independent contractor and not an employee,
servant, agent, partner or joint venturer of the Company. The Company shall
determine the work to be done by Consultant, but Consultant shall determine
the legal means by which Consultant accomplishes the work specified by the
Company. Consultant shall set its own daily hours of work, and Consultant
shall furnish its own place of work and its own tools and equipment. The
Company is not responsible for withholding, and shall not withhold, FICA or
other employment taxes of any kind from any payments which it owes
Consultant. The Company shall issue Consultant a 1099 rather than a W-2
form. Consultant is not entitled to receive any benefits which employees of
the Company are entitled to receive, and Consultant shall not be entitled to
workers' compensation, unemployment compensation, medical insurance, life
insurance, paid vacations, paid holidays, pension, profit sharing, or Social
Security on account of its work for the Company. Consultant shall maintain
its own occupational licenses. Consultant shall furnish the Company with
current certificates and proofs of payment that Consultant has coverage for
workers' compensation insurance, general liability insurance, motor vehicle
insurance and such other insurance as the Company may require of Consultant
from time to time.
10. Representations. Consultant hereby represents and agrees that:
Consultant has the right to enter into this Agreement; its engagement with
the Company does not violate any other contract or covenant that Consultant
has made with any other person, firm or entity.
11. Term. This Agreement is effective as of the date Consultant began
performing services for the Company and shall continue in effect until
canceled by either party upon two (2) day written notice to the other party.
12. Miscellaneous. Wherever used in this Agreement, the phrase "directly
or indirectly" includes, but is not limited to, acting through its wife,
children, parents, brothers, sister, or any other relatives, friends,
trustees, agents or associates. The word "customer" includes each of the
following: anyone whose name appears on a customer list, report, or computer
database of the Company; anyone to whom Company has sold or exchanged any
goods or services during the previous ten (10) years. The word "Consultant"
refers to the undersigned individual or company. Wherever used herein, the
singular shall include the plural, the plural shall include the singular, and
pronouns shall be read as masculine, feminine or neuter as the context
requires. The Company may waive a provision of this Agreement only in a
writing signed by an officer of the Company and specifically stating what is
waived. The rights of the Company under this Agreement may be assigned, but
Consultant may not assign its rights or obligations under this Agreement. The
title of this Agreement and the paragraph headings of this Agreement are not
substantive parts of this Agreement and shall not limit or restrict this
Agreement in any way. This Agreement is not a contract for future employment
or future engagement and does not change the fact that its engagement may be
terminated at any time by either Consultant or the Company. This Agreement
survives after its engagement terminates. No change, addition, deletion or
amendment of this Agreement shall be valid or binding upon Consultant or the
Company unless in writing and signed by Consultant and the Company. This
Agreement supersedes and replaces any other agreement between the Company and
Consultant. If a court of competent jurisdiction finally determines this
noncompete covenant to be unreasonable, then said court may reduce the term of
years or the geographical range, or both, so as to be reasonable. This
Agreement shall be governed by New Jersey law. The parties agrees that the
United States, New Jersey, is proper venue for any action arising out of this
Agreement. The prevailing party in any litigation, arbitration or mediation
relating to this Agreement shall be entitled to recover its reasonable
attorneys fees from the other party for all matters, including but not limited
to appeals.
IN WITNESS WHEREOF, the parties have signed this agreement as of April
20th, 2000.
Company: GoHealth.MD,Inc Consultant: ▇▇▇▇ ▇▇▇▇▇▇▇▇
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: President Title: Consultant
Date: April 20th , 2000 Date: April 20th , 2000
EXHIBIT A
to Consulting Agreement
Description of Work:
A. To develop a search engine for the website ▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ and other
development work.
Specifications: As to be determined
Schedule of Work: To be determined by the parties.
EXHIBIT "B"
to Consulting Agreement
Compensation:
Compensation:
* Consultant shall be paid at a rate of $7,800 a month for actual time
worked after the date this Agreement is signed, based on invoices submitted
every thirty (30) days, which shall be paid within fifteen (15) days after
being submitted. Failure of the company to pay any invoices within forty
five(45)days s submission shall constitute a breach of the Agreement and render
the entire Agreement, any and all provisions of the Agreement void.
* Stock compensation:
a. Consultant shall receive the number of shares of common stock of
the Company with piggyback registration rights, on the dates set
forth below provided that this Agreement has not been terminated by
either party prior to such date:
* 25,000 shares on the signing of the agreement
ii. 25,000 shares on June 1st , 2000
iii. 25,000 shares on July 1st , 2000
iv. 25,000 shares on October 1st, 2000
v. 25,000 shares on November 1st, 2000
vi. 25,000 shares on December 1st, 2000
vii. 25,000 shares on January 1st, 2001
viii. 25,000 shares on February 1st, 2001
Expenses Paid By Company:
- Company shall agree to reimburse the Consultant for the following
travel expenses:
-Airfare relating to travel as agreed upon in writing in advance by
the Company at the coach rate and up to $1,000.00 per month. .
- Any and all other travel expenses associated with the work
-Telephone bills associated with the work
-Software and Hardware associated with the work
-Any other expenses that have been approved y the company