NEWCARDIO, INC.
CONSULTING AGREEMENT
This
Consulting Agreement (" Agreement ") is entered into as of
March 1
st , 2007 by and between NewCardio, Inc. (the "Company") and
Branislav Vajdic ("Consultant") . The Company desires to retain
Consultant as an independent contractor to perform consulting
services for the Company, and Consultant is willing to perform such
services, on the terms described below. In consideration of the
mutual promises contained herein, the parties agree as
follows:
1.
Services and Compensation. Consultant agrees to perform for
the Company the services described in Exhibit A (the
"Services")
, and the Company
agrees to pay Consultant the compensation described in Exhibit A for
Consultant's performance of the Services.
2. C
onfidentiality.
A.
Definition. "Confidential
Information" means any non-public information that relates
to the actual or anticipated business or research and development
of the Company, technical data, trade secrets or know-how,
including, but not limited to, research, product plans or other
information regarding Company's 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, formulas,
technology, designs, drawing, engineering, hardware configuration
information, marketing, finances or other business information.
Confidential Information does not include information that (i) is
known to Consultant at the time of disclosure to Consultant by the
Company as evidenced by written records of Consultant, (ii) has
become publicly known and made generally available through no
wrongful act of Consultant or (iii) has been
rightfully received by Consultant from a third party who is
authorized to make such disclosure.
B.
Nonuse and Nondisclosure. Consultant will not, during or
subsequent to the term of this Agreement, (i) use the Confidential
Information for any purpose whatsoever other than the performance
of the Services on behalf of the Company or (ii) disclose the
Confidential Information to any third party. Consultant agrees that
all Confidential Information will remain the sole property of the
Company. Consultant also agrees to take all reasonable precautions
to prevent any unauthorized disclosure of such Confidential
Information. Without the Company's prior written approval,
Consultant will not directly or indirectly disclose to anyone the
existence of this Agreement or the fact that Consultant has
this arrangement with the Company.
C. Former
Client Confidential Information. Consultant agrees that
Consultant will not, during the term of this Agreement, improperly
use or disclose any proprietary information or trade secrets of any
former or current employer of Consultant or other person or entity
with which Consultant has an agreement or duty to keep in
confidence information acquired by Consultant, if any. Consultant
also agrees that Consultant will not bring onto the Company's
premises any unpublished document or proprietary information
belonging to any such employer, person or entity unless consented
to in writing by such employer, person or entity.
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, 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 disclose it to any person, firm
or corporation or to use it except as necessary in carrying out the
Services for the Company consistent with the Company's agreement
with such third party.
E.
Return of Materials. Upon the termination of this Agreement,
or upon Company's earlier request, Consultant will deliver to the
Company all of the Company's property, including but not limited to
all electronically stored information and passwords to access such
property, or Confidential Information that Consultant may have in
Consultant's possession or control.
3.
Ownership.
A.
Assignment. Consultant agrees that all copyrightable
material, notes, records, drawings, designs, inventions,
improvements, developments, discoveries and trade secrets
conceived, discovered, developed or reduced to practice by
Consultant, solely or in collaboration with others, during the term
of this Agreement that relate in any manner to the business of the
Company that Consultant may be directed to undertake, investigate
or experiment with or that Consultant may become associated with in
work, investigation or experimentation in the Company's line of
business in performing the Services under this Agreement
(collectively, "inventions"), are the sole property of the Company.
Consultant also agrees to assign (or cause to be assigned) and
hereby assigns fully to the Company all Inventions and any
copyrights, patents, mask work rights or other intellectual
property rights relating to all Inventions.
B.
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 and any copyrights,
patents, mask work rights or other intellectual property rights
relating to all Inventions in any and all countries, including the
disclosure to the Company of all pertinent information and data
with respect to all Inventions, the execution of all applications,
specifications, oaths, assignments and all other instruments that
the Company may deem necessary in order to apply for and obtain
such rights and in order to 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 any copyrights,
patents, mask work rights or other intellectual property rights
relating to all Inventions. Consultant also agrees that
Consultant's obligation to execute or cause to be executed any such
instrument or papers shall continue after the termination of this
Agreement.
C.
Pre-Existing
Materials. Subject to Section
3.A, Consultant agrees that if, in the course of
performing the Services, Consultant incorporates into any
Invention developed under this Agreement any pre-existing
invention, improvement, development, concept, discovery or
other proprietary information owned by Consultant or in which
Consultant has an interest, (i)
Consultant will inform Company, in writing before
incorporating such invention, improvement, development,
concept, discovery or other proprietary information into any
Invention, and (ii) the Company is hereby granted a
nonexclusive, royalty-free, perpetual, irrevocable, worldwide
license to make, have made,
modify, use and sell such item as part of or in connection
with such Invention. Consultant will not incorporate any
invention, improvement, development, concept, discovery or
other proprietary information owned by any third party into
any Invention without Company's prior written
permission.
D. Attorney-in-Fact.
Consultant agrees that, 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 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 3.A, then 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 such applications
and to do all other lawfully permitted acts 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.
4.
Conflicting
Obligations.
A.
Conflicts. Consultant certifies that
Consultant has no outstanding agreement or obligation that is in conflict
with any of the provisions of this Agreement or that would
preclude Consultant from complying with
the provisions of this Agreement. Consultant will not enter into
any such
conflicting agreement during the term of this Agreement.
Consultant's violation of this Section
4.A will be
considered a material breach under Section
6.B.
B.
Substantially Similar Designs. In view of Consultant's access
to the Company's trade
secrets and
proprietary know-how, Consultant agrees that Consultant will not,
without Company's prior written approval, design
identical or substantially similar designs as those developed under
this Agreement for any third party
during the term of this Agreement and for a period of 12 months
after the
termination of this Agreement. Consultant acknowledges that the
obligations in this Section
4 are
ancillary to Consultant's nondisclosure obligations under
Section
2.
5.
Reports.
Consultant also agrees that Consultant
will, from time to time during the term of this Agreement or
any extension thereof, 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. The
Company and Consultant agree that the time required to prepare such
written reports will he considered time devoted to the performance
of the Services.
6.
Term and
Termination.
A.
Term. The
term of this Agreement will begin on the date of this Agreement and
will continue
until the earlier of (i) final completion of the Services or (ii)
termination as provided in Section
6.B.
B.
Termination. Either party may terminate this
Agreement upon giving the other party 14 days' prior written notice of
such termination pursuant to Section
11.E 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
such termination, all rights and duties of the Company and
Consultant toward each other shall cease except:
(1)
The
Company will pay, within 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 expenses, if any, submitted in accordance with the
Company's policies and in accordance
