MySkin, Inc. CONSULTING, CONFIDENTIALITY AND PROPRIETARY RIGHTS AGREEMENT
Exhibit
10.1
CONSULTING,
CONFIDENTIALITY AND PROPRIETARY RIGHTS AGREEMENT
This
Consulting, Confidentiality and Proprietary Rights Agreement ("Agreement") is
entered into as of the 1stth day of December, 2007(the “Effective
Date”) by and between MySkin, Inc., a California corporation (the “Company”),
and Venor, Inc. (“Consultant”).
WHEREAS,
the Company desires to engage Consultant to provide certain services as set
forth on Schedule attached hereto and as specified from time to time by the
Company.
NOW,
THEREFORE, in consideration of the foregoing and the mutual covenants and
conditions contained herein, the parties hereto agree as follows:
1. Engagement. The
Company hereby engages Consultant to perform, using ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ ( the
“Principal”), those duties set forth in the Schedule attached hereto and such
other duties as may be requested from time to time by the Chief Executive
Officer or Board of Directors of the Company. Consultant hereby
accepts such engagement upon the terms and subject to conditions set forth in
this Agreement.
2. Compensation. For
the services rendered by Consultant under this Agreement, the Company shall pay
to Consultant the compensation specified in the Schedule, subject to the terms
and conditions set forth in this Agreement.
3. Term
and Survivability. The term of this Agreement shall be for a period
of one year from the Effective Date. Notwithstanding the foregoing,
Company may terminate this Agreement on or after one month from the Effective
Date by providing written advance notice to Consultant and Consultant may
terminate this Agreement on or after one month from the Effective Date by
one-month’s written advance notice to Company. In addition, this
Agreement may be terminated if either party materially fails to perform or
comply with this Agreement or any material provision hereof. Termination shall
be effective five (5) days after notice of such material failure to perform or
comply with this Agreement or any material provision hereof to the defaulting
party if the defaults have not been cured within such five (5) day
period. Upon termination of this Agreement the following sections of
this Agreement shall survive such termination: Sections 3, 5, 6, 7,
8, 10, 12 13 and 20.
4. Costs
and Expenses of Consultant’s Performance. Except as set forth on the
Schedule, all costs and expenses of Consultant’s performance hereunder shall be
borne by the Consultant.
5. Taxes. As
an independent contractor, Consultant acknowledges and agrees that it is solely
responsible for the payment of any taxes and/or assessments imposed on account
of the payment of compensation to, or the performance of services by Consultant
pursuant this Agreement, including, without limitation, any unemployment
insurance tax, federal and state income taxes, federal Social Security (FICA)
payments, and state disability insurance taxes. The Company shall not make any
withholdings or payments of said taxes or assessments with respect to amounts
paid to Consultant hereunder; provided, however, that if required by law or any
governmental agency, the Company shall withhold such taxes or assessments from
amounts due Consultant, and any such withholding shall be for Consultant's
account and shall not be reimbursed by the Company to Consultant. Consultant
expressly agrees to make all payments of such taxes, as and when the same may
become due and payable with respect to the compensation earned under this
Agreement.
6. Confidentiality. Consultant
agrees that Consultant will not, except when required by applicable law or order
of a court, during the term of this Agreement or thereafter, disclose directly
or indirectly to any person or entity, or copy, reproduce or use, any Trade
Secrets (as defined below) or Confidential Information (as defined below) or
other information treated as confidential by the Company known, learned or
acquired by the Consultant during the period of the Consultant's engagement by
the Company. For purposes of this Agreement, "Confidential
Information" shall mean any and all Trade Secrets, knowledge, data or know-how
of the Company, any of its affiliates or of third parties in the possession of
the Company or any of its affiliates, and any nonpublic technical, training,
financial and/or business information treated as confidential by the Company or
any of its affiliates, whether or not such information, knowledge, Trade Secret
or data was conceived, originated, discovered or developed by Consultant
hereunder. For purposes of this Agreement, "Trade Secrets" shall
include, without limitation, any formula, concept, pattern, processes, designs,
device, software, systems, list of customers, training manuals, marketing or
sales or service plans, business plans, marketing plans, financial information,
or compilation of information which is used in the Company's business or in the
business of any of its affiliates. Any information of the Company or
any of its affiliates which is not readily available to the public shall be
considered to be a Trade Secret unless the Company advises Consultant in writing
otherwise. Consultant acknowledges that all of the Confidential Information is
proprietary to the Company and is a special, valuable and unique asset of the
business of the Company, and that Consultant's past, present and future
engagement by the Company has created, creates and will continue to create a
relationship of confidence and trust between the Consultant and the Company with
respect to the Confidential Information. Furthermore, Consultant
shall immediately notify the Company of any information which comes to its
attention which might indicate that there has been a loss of confidentiality
with respect to the Confidential Information. In such event, Consultant shall
take all reasonable steps within its power to limit the scope of such
loss.
7. Return
of the Company’s Proprietary Materials. Consultant agrees to deliver
promptly to the Company on termination of this Agreement for whatever reason, or
at any time the Company may so request, all documents, records,
artwork, designs, data, drawings, flowcharts, listings, models, sketches,
apparatus, notebooks, disks, notes, copies and similar repositories of
Confidential Information and any other documents of a confidential nature
belonging to the Company, including all copies, summaries, records,
descriptions, modifications, drawings or adaptations of such materials which
Consultant may then possess or have under its control. Concurrently
with the return of such proprietary materials to the Company, Consultant agrees
to deliver to the Company such further agreements and assurances to ensure the
confidentiality of proprietary materials. Consultant further agrees
that upon termination of this Agreement, Consultant's, employees, consultants,
agents or independent contractors shall not retain any document, data or other
material of any description containing any Confidential Information or
proprietary materials of the Company.
8. Assignment
of Proprietary Rights. Other than the Proprietary Rights listed on
the Schedule attached hereto, if any, Consultant hereby assigns and transfers to
the Company all right, title and interest that Consultant may have, if any, in
and to all Proprietary Rights (whether or not patentable or copyrightable) made,
conceived, developed, written or first reduced to practice by Consultant,
whether solely or jointly with others, during the period of Consultant's
engagement by the Company which relate in any manner to the actual or
anticipated business or research and development of the Company, or result from
or are suggested by any task assigned to Consultant or by any of the work
Consultant has performed or may perform for the Company.
Consultant
acknowledges and agrees that the Company shall have all right, title and
interest in, among other items, all research information and all documentation
or manuals related thereto that Consultant develops or prepares for the Company
during the period of Consultant's engagement by the Company and that such work
by Consultant shall be work made for hire and that the Company shall be the sole
author thereof for all purposes under applicable copyright and other
intellectual property laws. Other than the Proprietary Rights listed on the
Schedule attached hereto, Consultant represents and covenants to the Company
that there are no Proprietary Rights relating to the Company's business which
were made by Consultant prior to Consultant's engagement by the Company.
Consultant agrees promptly to disclose in writing to the Company all Proprietary
Rights in order to permit the Company to claim rights to which it may be
entitled under this Agreement. With respect to all Proprietary Rights
which are assigned to the Company pursuant to this Section 8, Consultant will
assist the Company in any reasonable manner to obtain for the Company's benefit
patents and copyrights thereon in any and all jurisdictions as may be designated
by the Company, and Consultant will execute, when requested, patent and
copyright applications and assignments thereof to the Company, or other persons
designated by the Company, and any other lawful documents deemed necessary by
the Company to carry out the purposes of this Agreement. Consultant will further
assist the Company in every way to enforce any patents, copyrights and other
Proprietary Rights of the Company.
9. Trade
Secrets of Others. Consultant represents to the Company that its
performance of all the terms of this Agreement does not and will not breach any
agreement to keep in confidence proprietary information or trade secrets
acquired by Consultant in confidence or in trust prior to its engagement by the
Company, and Consultant will not disclose to the Company, or induce the Company
to use, any confidential or proprietary information or material belonging to
others. Consultant agrees not to enter into any agreement, either written or
oral, in conflict with this Agreement.
10. Other
Obligations. Consultant acknowledges that the Company, from time to
time, may have agreements with other persons which impose obligations or
restrictions on the Company regarding proprietary rights made or developed
during the course of work hereunder or regarding the confidential nature of such
work. Consultant agrees to be bound by all such obligations and restrictions and
to take all action necessary to discharge the obligations of the Company
hereunder.
11. Independent
Contractor. Consultant shall not be deemed to be an employee or agent
of the Company for any purpose whatsoever. Consultant shall have the sole and
exclusive control over its employees, consultants or independent contractors who
provide services to the Company, and over the labor and employee relations
policies and policies relating to wages, hours, working conditions or other
conditions of its employees, consultants or independent
contractors.
12.
Non-Solicit. Consultant will not, during the term this Agreement and for one
year thereafter, directly or indirectly (whether as an owner, partner,
shareholder, agent, officer, director, employee, independent contractor,
consultant, or otherwise) with or through any individual or entity: (i) employ,
engage or solicit for employment any individual who is, or was at any time
during the twelve-month period immediately prior to the termination of this
Agreement for any reason, an employee of the Company, or otherwise seek to
adversely influence or alter such individual's relationship with the Company; or
(ii) solicit or encourage any individual or entity that is, or was during the
twelve-month period immediately prior to the termination of this Agreement for
any reason, a customer or vendor of the Company to terminate or otherwise alter
his, her or its relationship with the Company or any of its
affiliates. Section 12 does not apply to individuals or entities know
to the Consultant previous to the Effective Date.
13.
Equitable Remedies. In the event of a breach or threatened breach of
the terms of this Agreement by Consultant, the parties hereto acknowledge and
agree that it would be difficult to measure the damage to the Company from such
breach, that injury to the Company from such breach would be impossible to
calculate and that monetary damages would therefore be an inadequate remedy for
any breach. Accordingly, the Company, in addition to any and all other rights
which may be available, shall have the right of specific performance, injunctive
relief and other appropriate equitable remedies to restrain any such breach or
threatened breach without showing or proving any actual damage to the
Company.
14.
Governing Law. This Agreement shall be governed, construed and
interpreted in accordance with the internal laws of the State of California. In
the event a judicial proceeding is necessary, the sole forum for resolving
disputes arising under or relating to this Agreement are the Municipal and
Superior Courts for the County of Orange, California or the Federal District
Court for the Central District of California and all related appellate courts,
and the parties hereby consent to the jurisdiction of such courts, and that
venue shall be in Orange County, California.
15. Entire
Agreement: Modifications and Amendments. The terms of this Agreement
are intended by the parties as a final expression of their agreement with
respect-to such terms as are included in this Agreement and may not be
contradicted by evidence of any prior or contemporaneous agreement. The Schedule
referred to in this Agreement is incorporated into this Agreement by this
reference. This Agreement may not be modified, changed or supplemented, nor may
any obligations hereunder be waived or extensions of time for performance
granted, except by written instrument signed by the parties or by their agents
duly authorized in writing or as otherwise expressly permitted
herein.
16. Attorneys
Fees. Should any party institute any action or proceeding to enforce
this Agreement or any provision hereof, or for damages by reason of any alleged
breach of this Agreement or of any provision hereof, or for a declaration of
rights hereunder, the prevailing party in any such action or proceeding shall be
entitled to receive from the other party all costs and expenses, including
reasonable attorneys' fees, incurred by the prevailing party in connection with
such action or proceeding.
17.
Prohibition of Assignment. This Agreement and the rights, duties and
obligations hereunder may not be assigned or delegated by Consultant without the
prior written consent of the Company. Any assignment of rights or delegation of
duties or obligations hereunder made without such prior written consent shall be
void and of no effect. Company consents to the assignment of this
Agreement to Venor Consulting, Inc./LLC when duly formed.
18. Binding
Effect: Successors and Assignment. This Agreement and the provisions
hereof shall be binding upon each of the parties, their successors and permitted
assigns.
19. Validity. This
Agreement is intended to be valid and enforceable in accordance with its terms
to the fullest extent permitted by law. If any provision of this Agreement is
found to be invalid or unenforceable by any court of competent Jurisdiction, the
invalidity or unenforceability of such provision shall not affect the validity
or enforceability of all the remaining provisions hereof.
20.
Indemnification. MySkin shall indemnify, defend and hold harmless
Consultant from and against any and all liability, loss, damage, expense, claims
or suits arising out of: (i) MySkin’s breach of this Agreement, including any
representations warranty contained herein; or (ii) the Services provided by
Consultant, provided such claim does not in any manner arise from Consultant’s
grossly negligent or willful act or omission. Additionally, Consultant will be
covered under the Director’s and Officer’s policy of the Company. The
Company will provide evidence of coverage to the Consultant.
21. Notices. All
notices and other communications hereunder shall be in writing and, unless
otherwise provided herein, shall be deemed duly given if delivered personally or
by telecopy or mailed by registered or certified mail (return receipt requested)
or by Federal Express or other similar courier service to the parties at the
following addresses or (at such other address for the party as shall be
specified by like notice)
(i) If
to the Company:
▇▇▇▇ ▇.
▇▇▇▇▇▇ ▇▇▇▇. ▇▇▇▇▇ ▇
Phone:
(▇▇▇) ▇▇▇-▇▇▇▇
Attn:
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇
(ii) If
to the Consultant:
Venor,
Inc.
▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇
▇▇▇
“▇”
▇▇▇▇▇▇▇
▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn:
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇
Any such
notice, demand or other communication shall be deemed to have been given on the
date personally delivered or as of the date mailed, as the case may
be.
IN
WITNESS WHEREOF, the parties hereto have executed this Consulting,
Confidentiality, and Proprietary Rights Agreement as of the Effective Date
written above.
Venor,
Inc.
By: /s/ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇
▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇
President
By: /s/ ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇
Name:
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇
Title:
President
Schedule
TITLE, DUTIES AND
OPERATIONAL RESPONSIBILITIES:
|
1.
|
Title
and Operational Responsibilities
|
§ Shall
consult on financial matters.
§ Consultant
shall report jointly to the Chairman of the Board and the Audit
Committee.
2. SCHEDULE AND COMITTMENT OF
TIME:
Consultant
is expected to no less than 40 hours per month to activities related to the
Company.
3. REPORTING
SCHEDULE:
Consultant
shall report regularly, and not less frequent than once per week, to the Company
his actions on behalf of the Company.
4. COMPENSATION AND PAYMENT
TERMS:
Consultant
shall be paid five thousand dollars ($5,000) per month on the 1st day of each
month. Such payment shall be pro-rated should the Agreement
terminated prior to the expiration of the payment period in which the Agreement
terminates.
5 EXPENSES:
Company
agrees to reimburse Consultant for other reasonably necessary travel expenses.
However, should such expenses exceed $1,500 in any given calendar month; such
expenses shall be pre-approved in advance by Company in order to qualify to
reimbursement. An email authorization by an officer of Company shall be deemed a
valid approval.