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Exhibit 10.2
MySkin, Inc.
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 Marichelle Stoppenhagen
(“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 Marichelle
Stoppenhagen ( 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
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