BLOCKCHAIN INDUSTRIES, INC. CONSULTING AGREEMENT
Exhibit
10.10
This Consulting Agreement (this
“Agreement”)
is made and entered into as of February ___, 2018 (the
“Effective
Date”) by and between
Blockchain Industries, Inc., a Nevada corporation with its
principal place of business at ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇
▇▇▇▇, ▇▇ ▇▇▇▇▇ (the “Company”),
and ▇▇▇▇▇ ▇▇▇▇▇▇ (“Consultant”)
(each herein referred to individually as a
“Party,”
or collectively as the “Parties”).
WHEREAS, the Company and the Consultant previously
entered into a consulting agreement effective as of December 1,
2017 (the “Former
Agreement”);
WHEREAS,
the Parties desire to replace the Former Agreement in its entirety
with this Agreement;
WHEREAS,
the Company desires to retain Consultant as an independent
contractor to perform the services of Chief Technology Officer for
the Company, and Consultant is willing to perform such services, on
the terms described below.
NOW
THEREFORE, in consideration of the mutual promises contained
herein, the Parties agree as follows:
1. Services
and Compensation
The
Former Agreement is hereby superseded and replaced in its entirety
by this Agreement.
Consultant shall perform the services described
in Exhibit
A (the
“Services”)
for the Company (or its designee), and the Company agrees to pay
Consultant the compensation described in Exhibit A, and no other compensation, for
Consultant’s performance of the Services.
2. Applicability
to Past Activities
Consultant agrees that if and to the extent that
Consultant provided any services or made efforts on behalf of or
for the benefit of Company, or related to the current or
prospective business of Company in anticipation of
Consultant’s involvement with the Company, that would have
been “Services” if performed during the term of this
Agreement (the “Prior
Consulting Period”) and
to the extent that during the Prior Consulting Period:
(i) Consultant received access to any information from or on
behalf of Company that would have been “Confidential
Information” (as defined below) if Consultant received access
to such information during the term of this Agreement; or
(ii) Consultant conceived, created, authored, invented,
developed or reduced to practice any item (including any
intellectual property rights with respect thereto) on behalf of or
for the benefit of Company, or related to the current or
prospective business of Company in anticipation of
Consultant’s involvement with Company, that would have been
an “Invention” (as defined below) if conceived,
created, authored, invented, developed or reduced to practice
during the term of this Agreement; then any such information shall
be deemed “Confidential Information” hereunder and any
such item shall be deemed an “Invention” hereunder, and
this Agreement shall apply to such activities, information or item
as if disclosed, conceived, created, authored, invented, developed
or reduced to practice during the term of this Agreement.
Consultant further acknowledges that Consultant has been fully
compensated for all services provided during any such Prior
Consulting Period.
A. Definition
of Confidential Information. “Confidential
Information” means any
non-public information that relates to the actual or anticipated
business and/or products, research or development of the
Company, its affiliates or subsidiaries, or to the
Company’s, its affiliates’ or subsidiaries’
technical data, trade secrets, or know-how, including, but not
limited to, research, product plans, or other information regarding
the Company’s, its affiliates’ or subsidiaries’
products or services and markets therefor, customer lists and
customers (including, but not limited to, customers of the Company
on whom Consultant called or with whom Consultant became acquainted
during the term of this Agreement), software, developments,
inventions, processes, methodologies, know-how, procedures,
formulas, technology, designs, drawings, engineering, hardware
configuration information, marketing, finances, and other business
information disclosed by the Company, its affiliates or
subsidiaries, either directly or indirectly, in writing, orally or
by drawings or inspection of premises, parts, equipment, or other
property of Company, its affiliates or subsidiaries.
Notwithstanding the foregoing, Confidential Information shall not
include any such information which Consultant can establish (i) was
publicly known or made generally available prior to the time of
disclosure to Consultant; (ii) becomes publicly known or made
generally available after disclosure to Consultant through no
wrongful action or inaction of Consultant; or (iii) is in the
rightful possession of Consultant, without confidentiality
obligations, at the time of disclosure as shown by
Consultant’s then-contemporaneous written
records.
B. Nonuse and
Nondisclosure. During and after the term of this Agreement,
Consultant will hold in the strictest confidence, and take all
reasonable and necessary precautions to prevent any unauthorized
use or disclosure of Confidential Information, and Consultant will
not (i) use the Confidential Information for any purpose
whatsoever other than as necessary for the performance of the
Services on behalf of the Company, or (ii) disclose the
Confidential Information to any third party without the prior
written consent of an authorized representative of Company.
Consultant may disclose Confidential Information to the extent
compelled by applicable law; provided
however, prior to such
disclosure, Consultant shall provide prior written notice to
Company and seek a protective order or such similar confidential
protection as may be available under applicable law. Consultant
agrees that no ownership of Confidential Information is conveyed to
the Consultant. Without limiting the foregoing, Consultant shall
not use or disclose any Company property, intellectual property
rights, trade secrets or other proprietary know-how of the Company
to invent, author, make, develop, design, or otherwise enable
others to invent, author, make, develop, or design identical or
substantially similar designs, processes, formulas, or software, as
those developed under this Agreement for any third party.
Consultant agrees that Consultant’s obligations under this
Section 3.B
shall continue after the termination
of this Agreement.
C. Other
Client Confidential Information. Consultant agrees that Consultant will not
improperly use, disclose, or induce the Company to use any
proprietary information or trade secrets of any former or
concurrent employer of Consultant or other person or entity with
which Consultant has an obligation to keep in confidence.
Consultant also agrees that Consultant will not bring onto the
Company’s premises or transfer onto the Company’s
technology systems any unpublished document, proprietary
information, or trade secrets belonging to any third party unless
disclosure to, and use by, the Company has been consented to in
writing by such third party.
D. Third Party
Confidential Information. Consultant recognizes that the Company has
received and in the future will receive from third parties their
confidential or proprietary information subject to a duty on the
Company’s part to maintain the confidentiality of such
information and to use it only for certain limited purposes.
Consultant agrees that at all times during the term of this
Agreement and thereafter, Consultant owes the Company and such
third parties a duty to hold all such confidential or proprietary
information in the strictest confidence and not to use it or to
disclose it to any person, firm, corporation, or other third party
except as necessary in carrying out the Services for the Company
consistent with the Company’s agreement with such third
party.
4. Ownership
A. Assignment
of Inventions. Consultant agrees that all right, title, and
interest in and to any copyrightable material, notes, records,
drawings, designs, charts, graphs, data compilations, inventions,
improvements, developments, discoveries and trade secrets
conceived, discovered, authored, invented, developed or reduced to
practice by Consultant, solely or in collaboration with others,
during the term of this Agreement and arising out of, or in
connection with, performing the Services under this Agreement and
any copyrights, patents, trade secrets, mask work rights or other
intellectual property rights relating to the foregoing
(collectively, “Inventions”),
are the sole property of the Company. Consultant also agrees to
promptly make full written disclosure to the Company of any
Inventions and to deliver and assign (or cause to be assigned) and
hereby irrevocably assigns fully to the Company all right, title
and interest in and to the Inventions without any compensation
therefor.
B. Pre-Existing
Materials. Subject to Section 4.A,
Consultant agrees that if, in the course of performing the
Services, Consultant incorporates into any Invention or utilizes in
the performance of the Services any pre-existing invention,
discovery, original works of authorship, development, improvements,
trade secret, concept, or other proprietary information or
intellectual property right owned by Consultant or in which
Consultant has an interest (“Prior
Inventions”),
(i) Consultant will provide the Company with prior written
notice and (ii) the Company is hereby granted a nonexclusive,
royalty-free, perpetual, irrevocable, transferable, worldwide
license (with the right to grant and authorize sublicenses) to
make, have made, use, import, offer for sale, sell,
reproduce, distribute, modify, adapt, prepare derivative works of,
display, perform, and otherwise exploit such Prior Inventions,
without restriction, including, without limitation, as part of or
in connection with such Invention, and to practice any method
related thereto. Consultant will not incorporate any invention,
improvement, development, concept, discovery, work of authorship or
other proprietary information owned by any third party into any
Invention.
C. Moral
Rights. Any
assignment to the Company of Inventions includes all rights of
attribution, paternity, integrity, modification, disclosure and
withdrawal, and any other rights throughout the world that may be
known as or referred to as “moral rights,”
“artist’s rights,” “droit moral,” or
the like (collectively, “Moral
Rights”). To the extent
that Moral Rights cannot be
assigned under applicable law, Consultant
hereby waives and agrees not to enforce any and all Moral Rights,
including, without limitation, any limitation on subsequent
modification, to the extent permitted under applicable
law.
D. Maintenance
of Records. Consultant agrees to keep and maintain adequate,
current, accurate, and authentic written records of all Inventions
made by Consultant (solely or jointly with others) during the term
of this Agreement, and for a period of three (3) years thereafter.
The records will be in the form of notes, sketches, drawings,
electronic files, reports, or any other format that is customary in
the industry and/or otherwise specified by the Company. Such
records are and remain the sole property of the Company at all
times and upon Company’s request, Consultant shall deliver
(or cause to be delivered) the same.
E. Further
Assurances. Consultant agrees to assist Company, or its
designee, at the Company’s expense, in every proper way to
secure the Company’s rights in Inventions in any and all
countries, including the disclosure to the Company of all pertinent
information and data with respect thereto, the execution of all
applications, specifications, oaths, assignments and all other
instruments that the Company may deem necessary in order to apply
for, register, obtain, maintain, defend, and enforce such rights,
and in order to deliver, assign and convey to the Company, its
successors, assigns and nominees the sole and exclusive right,
title, and interest in and to all Inventions and testifying in a
suit or other proceeding relating to such Inventions. Consultant
further agrees that Consultant’s obligations under this
Section 4.E
shall continue after the termination
of this Agreement.
F. Attorney-in-Fact.
Consultant hereby irrevocably
designates and appoints the Company and its duly authorized
officers and agents as Consultant’s agent and
attorney-in-fact, to act for and on Consultant’s behalf to
execute and file any papers and oaths and to do all other lawfully
permitted acts with respect to such Inventions to further the
prosecution and issuance of patents, copyright and mask work
registrations with the same legal force and effect as if executed
by Consultant, effective if the Company is unable because of
Consultant’s unavailability, dissolution, mental or physical
incapacity, or for any other reason, to secure Consultant’s
signature with respect to any Inventions, including, without
limitation, for the purpose of applying for or pursuing any
application for any United States or foreign patents or mask work
or copyright registrations covering the Inventions assigned to the
Company in Section 4.A. This
power of attorney shall be deemed coupled with an
interest, and shall be
irrevocable.
5. Conflicting
Obligations
A. Consultant
represents and warrants that Consultant has no agreements,
relationships, or commitments to any other person or entity that
conflict with the provisions of this Agreement, Consultant’s
obligations to the Company under this Agreement, and/or
Consultant’s ability to perform the Services. Consultant will
not enter into any such conflicting agreement during the term of
this Agreement.
B. Consultant shall require all Consultant’s
employees, contractors, or other third-parties performing Services
under this Agreement to execute a Confidential Information and
Assignment Agreement in the form provided by the Company, and
promptly provide a copy of each such executed agreement to the
Company. Consultant’s violation of this
Article 5
will be considered a material breach
under Section 8.B.
6. Return
of Company Materials
Upon the termination of this Agreement, or upon
Company’s earlier request, Consultant will immediately
deliver to the Company, and will not keep in Consultant’s
possession, recreate, or deliver to anyone else, any and all
Company property, including, but not limited to, all records,
drawings, notebooks, and other documents pertaining to any
Confidential Information, tangible embodiments of the Inventions,
all devices and equipment belonging to the Company, all
electronically-stored information and passwords to access such
property, those records maintained pursuant to
Section 4.D
and any reproductions of any of the
foregoing items that Consultant may have in Consultant’s
possession or control.
7. Reports
Consultant
agrees that Consultant shall, no less than on a weekly basis, keep
the Company advised as to Consultant’s progress in performing
the Services under this Agreement. Consultant further agrees that
Consultant will, as requested by the Company, prepare written
reports with respect to such progress and any projects being worked
on or implemented. The Company and Consultant agree that the
reasonable time expended in preparing such written reports will be
considered time devoted to the performance of the
Services.
8. Term
and Termination
A. Term.
The term of this Agreement will begin
on the Effective Date of this Agreement and will continue until the
earlier of (i) the period defined in Exhibit A or
(ii) termination as provided in
Section 8.B.
B. Termination.
The Company may terminate this
Agreement upon giving Consultant five (5) days prior written notice
of such termination pursuant to Section 14.G of this
Agreement. The Company may terminate this Agreement immediately and
without prior notice if Consultant refuses to or is unable to
perform the Services or is in breach of any material provision of
this Agreement.
C. Survival.
Upon any termination, all rights and
duties of the Company and Consultant toward each other shall cease
except:
(1) The Company will pay, within thirty (30) days
after the effective date of termination, all amounts owing to
Consultant for Services completed and accepted by the Company prior
to the termination date and related reimbursable expenses, if any,
submitted in accordance with the Company’s policies and in
accordance with the provisions of Article 1 of this
Agreement; and
(2) Article 3 (Confidentiality),
Article 4
(Ownership),
Section 5.B
(Conflicting Obligations),
Article 6
(Return of Company Materials),
Article 8
(Term and Termination),
Article 9
(Independent Contractor; Benefits),
Article 10
(Indemnification),
Article 11
(Noninterference),
Article 12
(Limitation of Liability),
Article 13
(Arbitration and Equitable Relief),
and Article 14
(Miscellaneous) will survive
termination or expiration of this Agreement in accordance with
their terms.
9. Independent
Contractor; Benefits
A. Independent
Contractor. It is the express intention of the Company and
Consultant that Consultant perform the Services as an independent
contractor to the Company. Nothing in this Agreement shall in any
way be construed to constitute Consultant as an agent, employee,
partner, co-venturer, or representative of the Company. Without
limiting the generality of the foregoing, Consultant is not
authorized to bind the Company to any liability or obligation or to
represent that Consultant has any such authority. Consultant agrees
to furnish (or reimburse the Company for) all tools and materials
necessary to accomplish this Agreement and shall incur all expenses
associated with performance, except as expressly provided in
Exhibit A.
B. Tax
Matters. Consultant is
exclusively responsible for all Social Security, self-employment,
and income taxes, disability insurance, workers’ compensation
insurance, any other federal and/or state statutory benefits
otherwise required to be provided to employees, and all fees and
licenses, if any, required for the performance of the services
hereunder. Immediately upon entering into this Agreement,
Consultant agrees to provide the Company with a completed and
signed Form W-9, Request for Taxpayer
Identification Number and Certification. Company will report all income to Consultant on
IRS Form 1099. Consultant understands and agrees that he is solely
responsible for all income and/or other tax obligations, if any,
including but not limited to all reporting and payment obligations,
if any, which may arise as a consequence of any payment under this
Agreement. Contractor hereby agrees to indemnify and hold harmless
Company from and against any liability for any taxes, fines,
penalties or interest that may be assessed by any taxing authority
with respect to the compensation paid
hereunder.
C. No
Benefits. The Company and Consultant agree that Consultant
will receive no Company-sponsored benefits from the Company where
benefits include, but are not limited to, paid vacation, sick
leave, health and medical insurance and 401k participation or other
fringe benefit plans. If Consultant is reclassified by a state or
federal agency or court as the Company’s employee, Consultant
will become a reclassified employee and will receive no benefits
from the Company, except those mandated by state or federal law,
even if by the terms of the Company’s benefit plans or
programs of the Company in effect at the time of such
reclassification, Consultant would otherwise be eligible for such
benefits.
10. Indemnification
Consultant
agrees to indemnify and hold harmless the Company and its
affiliates and their directors, officers and employees from and
against all taxes, losses, damages, liabilities, costs and
expenses, including attorneys’ fees and other legal expenses,
arising directly or indirectly from or in connection with
(i) any negligent, reckless or intentionally wrongful act of
Consultant or Consultant’s assistants, employees, contractors
or agents, (ii) a determination by a court or agency that the
Consultant is not an independent contractor, (iii) any breach
by the Consultant or Consultant’s assistants, employees,
contractors or agents of any of the covenants contained in this
Agreement and corresponding Confidential Information and Invention
Assignment Agreement, (iv) any failure of Consultant to
perform the Services in accordance with all applicable laws, rules
and regulations, or (v) any violation or claimed violation of
a third party’s rights resulting in whole or in part from the
Company’s use of the Inventions or other deliverables of
Consultant under this Agreement.
11. Nonsolicitation
To the fullest extent permitted under applicable
law, from the date of this Agreement until twelve (12) months after
the termination of this Agreement for any reason (the
“Restricted
Period”), Consultant will
not, without the Company’s prior written consent, directly or
indirectly, solicit any of the Company’s employees to leave
their employment, or attempt to solicit employees of the Company,
either for Consultant or for any other person or entity. Consultant
agrees that nothing in this Article 11 shall
affect Consultant’s continuing obligations under this
Agreement during and after this twelve (12) month period,
including, without limitation, Consultant’s obligations under
Article 3.
12. Limitation
of Liability
IN
NO EVENT SHALL COMPANY BE LIABLE TO CONSULTANT OR TO ANY OTHER
PARTY FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE OR
CONSEQUENTIAL DAMAGES, OR DAMAGES FOR LOST PROFITS OR LOSS OF
BUSINESS, HOWEVER CAUSED AND UNDER ANY THEORY OF LIABILITY, WHETHER
BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHER THEORY OF
LIABILITY, REGARDLESS OF WHETHER COMPANY WAS ADVISED OF THE
POSSIBILITY OF SUCH DAMAGES AND NOTWITHSTANDING THE FAILURE OF
ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. IN NO EVENT SHALL
COMPANY’S LIABILITY ARISING OUT OF OR IN CONNECTION WITH THIS
AGREEMENT EXCEED THE AMOUNTS PAID BY COMPANY TO CONSULTANT UNDER
THIS AGREEMENT FOR THE SERVICES, DELIVERABLES OR INVENTION GIVING
RISE TO SUCH LIABILITY.
13. Arbitration
and Equitable Relief
A. Arbitration.
IN CONSIDERATION OF CONSULTANT’S
CONSULTING RELATIONSHIP WITH THE COMPANY, ITS PROMISE TO ARBITRATE
ALL DISPUTES RELATED TO CONSULTANT’S CONSULTING RELATIONSHIP
WITH THE COMPANY AND CONSULTANT’S RECEIPT OF THE COMPENSATION
PAID TO CONSULTANT BY COMPANY, AT PRESENT AND IN THE FUTURE,
CONSULTANT AGREES THAT ANY AND ALL CONTROVERSIES, CLAIMS, OR
DISPUTES WITH ANYONE (INCLUDING COMPANY AND ANY EMPLOYEE, OFFICER,
DIRECTOR, SHAREHOLDER OR BENEFIT PLAN OF THE COMPANY IN THEIR
CAPACITY AS SUCH OR OTHERWISE) ARISING OUT OF, RELATING TO, OR
RESULTING FROM CONSULTANT’S CONSULTING RELATIONSHIP WITH THE
COMPANY OR THE TERMINATION OF CONSULTANT’S CONSULTING
RELATIONSHIP WITH THE COMPANY, INCLUDING ANY BREACH OF THIS
AGREEMENT, SHALL BE SUBJECT TO BINDING ARBITRATION UNDER THE
ARBITRATION RULES SET FORTH IN N.Y. CIV. PRAC. LAW § 7501 ET
SEQ. (THE “RULES”) AND PURSUANT TO NEW YORK LAW. CONSULTANT FURTHER
UNDERSTANDS THAT THIS AGREEMENT TO ARBITRATE ALSO APPLIES TO ANY
DISPUTES THAT THE COMPANY MAY HAVE WITH
CONSULTANT.
B. Procedure.
CONSULTANT AGREES THAT ANY ARBITRATION
WILL BE ADMINISTERED BY JUDICIAL ARBITRATION & MEDIATION
SERVICES, INC. (“JAMS”) PURSUANT TO ITS EMPLOYMENT ARBITRATION
RULES & PROCEDURES (THE “JAMS RULES”). CONSULTANT AGREES THAT THE ARBITRATOR
SHALL HAVE THE POWER TO DECIDE ANY MOTIONS BROUGHT BY ANY PARTY TO
THE ARBITRATION, INCLUDING MOTIONS FOR SUMMARY JUDGMENT AND/OR
ADJUDICATION AND MOTIONS TO DISMISS AND DEMURRERS, PRIOR TO ANY
ARBITRATION HEARING. CONSULTANT AGREES THAT THE ARBITRATOR SHALL
ISSUE A WRITTEN DECISION ON THE MERITS. CONSULTANT ALSO AGREES THAT
THE ARBITRATOR SHALL HAVE THE POWER TO AWARD ANY REMEDIES,
INCLUDING ATTORNEYS' FEES AND COSTS, AVAILABLE UNDER APPLICABLE
LAW. CONSULTANT AGREES THAT THE ARBITRATOR SHALL ADMINISTER AND
CONDUCT ANY ARBITRATION IN A MANNER CONSISTENT WITH THE RULES,
INCLUDING THE NEW YORK CIVIL PRACTICE LAW AND RULES, AND THAT THE
ARBITRATOR SHALL APPLY SUBSTANTIVE AND PROCEDURAL NEW YORK LAW TO
ANY DISPUTE OR CLAIM, WITHOUT REFERENCE TO RULES OF CONFLICT OF
LAW. TO THE EXTENT THAT THE JAMS RULES CONFLICT WITH NEW YORK LAW,
NEW YORK LAW SHALL TAKE PRECEDENCE. CONSULTANT FURTHER AGREES THAT
ANY ARBITRATION UNDER THIS AGREEMENT SHALL BE CONDUCTED IN NEW YORK
COUNTY, NEW YORK.
C. Remedy.
EXCEPT AS PROVIDED BY THE RULES,
ARBITRATION SHALL BE THE SOLE, EXCLUSIVE AND FINAL REMEDY FOR ANY
DISPUTE BETWEEN CONSULTANT AND THE COMPANY. ACCORDINGLY, EXCEPT AS
PROVIDED FOR BY THE RULES, NEITHER CONSULTANT NOR THE COMPANY WILL
BE PERMITTED TO PURSUE COURT ACTION REGARDING CLAIMS THAT ARE
SUBJECT TO ARBITRATION. NOTWITHSTANDING, THE ARBITRATOR WILL NOT
HAVE THE AUTHORITY TO DISREGARD OR REFUSE TO ENFORCE ANY LAWFUL
COMPANY POLICY, AND THE ARBITRATOR SHALL NOT ORDER OR REQUIRE THE
COMPANY TO ADOPT A POLICY NOT OTHERWISE REQUIRED BY LAW WHICH THE
COMPANY HAS NOT ADOPTED.
D. Availability
of Injunctive Relief. EITHER PARTY MAY ALSO PETITION THE COURT FOR
INJUNCTIVE RELIEF WHERE EITHER PARTY ALLEGES OR CLAIMS A VIOLATION
OF ANY AGREEMENT REGARDING TRADE SECRETS, OR CONFIDENTIAL
INFORMATION, OR A BREACH OF ANY DUTY NOT TO ENGAGE IN CONFLICTING
BUSINESS ACTIVITY. IN THE EVENT EITHER PARTY SEEKS INJUNCTIVE
RELIEF, THE PREVAILING PARTY SHALL BE ENTITLED TO RECOVER
REASONABLE COSTS AND ATTORNEYS’ FEES.
E. Administrative
Relief. CONSULTANT UNDERSTANDS
THAT THIS AGREEMENT DOES NOT PROHIBIT CONSULTANT FROM PURSUING AN
ADMINISTRATIVE CLAIM WITH A LOCAL, STATE OR FEDERAL ADMINISTRATIVE
BODY SUCH AS THE DIVISION OF HUMAN RIGHTS, THE EQUAL EMPLOYMENT
OPPORTUNITY COMMISSION, THE NATIONAL LABOR RELATIONS BOARD, OR THE
WORKERS’ COMPENSATION BOARD. THIS AGREEMENT DOES, HOWEVER,
PRECLUDE CONSULTANT FROM PURSUING COURT ACTION REGARDING ANY SUCH
CLAIM, EXCEPT AS PERMITTED BY LAW.
F. Voluntary
Nature of Agreement. CONSULTANT
ACKNOWLEDGES AND AGREES THAT HE/SHE IS EXECUTING THIS AGREEMENT
VOLUNTARILY AND WITHOUT ANY DURESS OR UNDUE INFLUENCE BY THE
COMPANY OR ANYONE ELSE. CONSULTANT FURTHER ACKNOWLEDGES AND AGREES
THAT HE/SHE HAS CAREFULLY READ THIS AGREEMENT AND THAT CONSULTANT
HAS ASKED ANY QUESTIONS NEEDED FOR CONSULTANT TO UNDERSTAND THE
TERMS, CONSEQUENCES AND BINDING EFFECT OF THIS AGREEMENT AND FULLY
UNDERSTAND IT, INCLUDING THAT CONSULTANT IS WAIVING HIS/HER
RIGHT TO A JURY TRIAL. FINALLY,
CONSULTANT AGREES THAT HE/SHE HAS BEEN PROVIDED AN OPPORTUNITY TO
SEEK THE ADVICE OF AN ATTORNEY OF CONSULTANT’S CHOICE BEFORE
SIGNING THIS AGREEMENT.
14. Miscellaneous
A. Governing
Law; Consent to Personal Jurisdiction. This Agreement shall be governed by the laws of
the State of New York, without regard to the conflicts of law
provisions of any jurisdiction. To the extent that any lawsuit is
permitted under this Agreement, the Parties hereby expressly
consent to the personal and
exclusive juridiction and
venue of the state and federal
courts located in New York.
B. Assignability.
This Agreement will be binding upon
Consultant’s heirs, executors, assigns, administrators, and
other legal representatives, and will be for the benefit of the
Company, its successors, and its assigns. There are no intended
third-party beneficiaries to this Agreement, except as expressly
stated. Except as may otherwise be provided in this Agreement,
Consultant may not sell, assign or delegate any rights or
obligations under this Agreement. Notwithstanding anything to the
contrary herein, Company may assign this Agreement and its rights
and obligations under this Agreement to any successor to all or
substantially all of Company’s relevant assets, whether by
merger, consolidation, reorganization, reincorporation, sale of
assets or stock, or otherwise.
C. Entire
Agreement. This Agreement constitutes the entire agreement
and understanding between the Parties with respect to the subject
matter herein and supersedes all prior written and oral agreements,
discussions, or representations between the Parties. Consultant
represents and warrants that he/she is not relying on any statement
or representation not contained in this Agreement. To the extent
any terms set forth in any exhibit or schedule conflict with the
terms set forth in this Agreement, the terms of this Agreement
shall control unless otherwise expressly agreed by the Parties in
such exhibit or schedule.
D. Headings.
Headings are used in this Agreement
for reference only and shall not be considered when interpreting
this Agreement.
E. Severability.
If a court or other body of competent
jurisdiction finds, or the Parties mutually believe, any provision
of this Agreement, or portion thereof, to be invalid or
unenforceable, such provision will be enforced to the maximum
extent permissible so as to effect the intent of the Parties, and
the remainder of this Agreement will continue in full force and
effect.
F. Modification,
Waiver. No modification of or amendment to this Agreement,
nor any waiver of any rights under this Agreement, will be
effective unless in a writing signed by the Parties. Waiver by the
Company of a breach of any provision of this Agreement will not
operate as a waiver of any other or subsequent
breach.
G. Notices.
Any notice or other communication
required or permitted by this Agreement to be given to a Party
shall be in writing and shall be deemed given (i) if delivered
personally or by commercial messenger or courier service,
(ii) when sent by confirmed facsimile, or (iii) if mailed
by U.S. registered or certified mail (return receipt requested), to
the Party at the Party’s address written below or at such
other address as the Party may have previously specified by like
notice. If by mail, delivery shall be deemed effective three
business days after mailing in accordance with this
Section 14.G.
(1) If
to the Company, to:
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▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇
▇▇▇
▇▇▇
▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention:
President
(2) If
to Consultant, to the address for notice on the signature page to
this Agreement or, if no such address is provided, to the last
address of Consultant provided by Consultant to the
Company.
H. Attorneys’
Fees and Expenses. In any court action at law or equity that is
brought by one of the Parties to this Agreement to enforce or
interpret the provisions of this Agreement, the prevailing Party
will be entitled to reasonable attorneys’ fees and expenses,
in addition to any other relief to which that Party may be
entitled.
I. Signatures. This
Agreement may be signed in two counterparts, each of which shall be
deemed an original, with the same force and effectiveness as though
executed in a single document.
J. Entire
Agreement. This Agreement and any documents executed by the
parties pursuant to this Agreement and referred to herein
constitute a complete and exclusive statement of the entire
understanding and agreement of the parties hereto with respect to
their subject matter and supersede all other prior agreements and
understandings, written or oral, relating to such subject matter
between the parties.
(signature
page follows)
2447138v.2
IN
WITNESS WHEREOF, the Parties hereto have executed this Consulting
Agreement as of the date first written above.
CONSULTANT
By:
/s/ ▇▇▇▇▇
▇▇▇▇▇▇
By:/s/ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇
Name: ▇▇▇▇▇
▇▇▇▇▇▇
Name:
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title:
Title:
CEO
Address for Notice:
2447138v.2
EXHIBIT A
SERVICES AND COMPENSATION
1. Consultant.
Name:
▇▇▇▇▇ ▇▇▇▇▇▇
Title:
Chief Technology Officer
Email:
▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇
Phone:
2. Services.
Consultant
shall render advice, consultation, information and services
concerning the Company’s technology strategy, including but
not limited to, virtual currency mining and deployment,
cryptocurrency trading and the Company’s positioning in the
blockchain industry. The Company will retain Consultant’s
services in the capacity of an independent contractor. It is agreed
that Consultant will not be an employee nor authorized agent of the
Company. Accordingly, it is agreed that Consultant will serve in
his capacity as Chief Technology Officer as an independent
contractor and that no employment relationship is formed between
him and the Company. As such, Consultant shall determine the time,
location, manner and means by which he will perform and complete
the services typical of a Chief Technology Officer at the direction
of the Company’s board of directors and its President.
Consultant shall have no authority to enter into contracts or
binding commitments or obligations in the name of or on behalf of
Company without the express prior written authorization of the
Company as to the specific contract or commitment.
3. Term.
The
term of this agreement shall be one (1) year from the Effective
Date (unless sooner terminated as provided in the
Agreement).
4. Compensation.
A. The
Company shall pay Consultant Two Hundred Thousand Dollars
($200,000) per year (the “Consulting Fee”). The
Consulting Fee shall be payable in monthly
installments.
B. The
Company will reimburse Consultant, in accordance with Company
policy for all reasonable expenses incurred by Consultant in
performing the Services pursuant to this Agreement, if Consultant
receives written consent from an authorized agent of the Company
prior to incurring such expenses and submits receipts for such
expenses to the Company in accordance with Company standard expense
reimbursement policy.
On
a monthly basis Consultant shall submit to the Company a written
invoice detailing the Services performed and expenses incurred
(with receipts attached), and such statement shall be subject to
the approval of the contact person listed above or other designated
agent of the Company.
2447138v.2