CONSULTING AGREEMENT
Effective
May 14, 2008, Larry J. Hamlin ("
Consultant ")
and Organic To Go, Inc., a Delaware corporation ("
Company ")
agree as follows:
1.
Services and Payment .
Consultant
shall undertake and complete the services (as described on
Exhibit A )
in accordance with and on the schedule specified on
Exhibit A (the
“
Services ”).
As the only consideration due Consultant regarding the subject
matter of this Agreement, Company will pay Consultant in accordance
with
Exhibit A .
2.
Ownership; Rights; Proprietary Information;
Publicity .
a.
Company
shall own all right, title and interest (including patent
rights, copyrights, trade secret rights, trademark rights, and
all other intellectual and industrial property rights of any
sort throughout the world) relating to any and all inventions
(whether or not patentable), works of authorship,
designations, designs, know-how, ideas and information made or
conceived or reduced to practice, in whole or in part, by
Consultant in connection with Services or any Proprietary
Information (as defined below) (collectively, "
Inventions ")
and Consultant will promptly disclose and provide all Inventions to
Company. All Inventions are work made for hire to the extent
allowed by law and, in addition, Consultant hereby makes all
assignments necessary to accomplish the foregoing ownership.
Consultant shall assist Company, at Company's expense, to further
evidence, record and perfect such assignments, and to perfect,
obtain, maintain, enforce, and defend any rights assigned.
Consultant hereby irrevocably designates and appoints Company as
her agent and attorney-in-fact, coupled with an interest, to act
for and on Consultant's behalf to execute and file any document and
to do all other lawfully permitted acts to further the foregoing
with the same legal force and effect as if executed by
Consultant.
b.
All
Inventions and all other business, technical and financial
information (including, without limitation, the identity of
and information relating to customers or employees) that
Consultant learns, develops or obtains in connection with the
Services or that are received by or for Company in confidence,
constitute "
Proprietary Information ”.
Consultant shall hold in confidence and not disclose or, except in
performing the Services, use any Proprietary Information. However,
Consultant shall not be obligated under this paragraph with respect
to information that Consultant can document is or becomes readily
publicly available without restriction through no fault of
Consultant. Upon termination and as otherwise requested by Company,
Consultant shall promptly return to Company all items and copies
containing or embodying Proprietary Information, except that
Consultant may keep her personal copies of her compensation records
and this Agreement. Consultant has no expectation of privacy with
respect to Company's telecommunications, networking or information
processing systems (including, without limitation, stored computer
files, e-mail messages and voice messages) and Consultant's
activity, and any files or messages, on or using any of those
systems may be monitored at any time without notice; provided that
Consultant has an expectation of privacy with respect to his
networking or information processing systems (including, without
limitation, computer(s) which he owns, stored computer files and
e-mail messages) and Consultant's activity, and any files or
messages, on or using any of those systems may not be monitored or
viewed by Company at any time.
c.
As
additional protection for Proprietary Information, during the
period that Consultant provides the Services and for one (1)
year thereafter, Consultant will not (i) encourage or solicit
any employee or consultant of Company to leave Company for any
reason, provided however, that Consultant may hire Carly
Sickles and Craig Phillips upon termination of this Agreement,
(ii) engage in any activity that is in any way competitive
with the proposed business of Company or (iii) assist any
other person or organization in competing or in preparing to
compete with the proposed business of Company. Without
limiting the foregoing, Consultant may perform services for
any person, provided that (i) such person is not a restaurant
or cafe within a two (2) block radius of a location of a
business owned by Company as of the date of this Agreement or
a business purchased under the Agreement
of Purchase and Sale of Assets among FPO,
Inc., a Washington corporation doing business as
“Mel’s Market,” “Mel’s
Delivery,” “Joelle’s,” “Soups du
Jour” and “Simon’s,”
Larry
J. Hamlin, Company and Organic to Go Food Corporation, a
Delaware corporation, dated as of May
14, 2008 ,
(ii)
such person does not provide catering or food delivery in King
County, Washington and (iii) such services do not represent a
conflict of interest or a breach of Consultant’s
obligation under this Agreement or otherwise.
d.
To
the extent allowed by law, Section 2(a) and any license to
Company hereunder includes all rights of paternity, integrity,
disclosure and withdrawal and any other rights that may be
known as or referred to as "moral rights," "artist's rights,"
"droit moral," or the like. Furthermore, Consultant agrees
that notwithstanding any rights of publicity, privacy or
otherwise (whether or not statutory) anywhere in the world and
without any further compensation Company may and is hereby
authorized to use Consultant's name in connection with
promotion of its business, products and services.
e.
If
any part of the Services or Inventions is based on,
incorporates, or is an improvement or derivative of, or cannot
be reasonably and fully made, used, reproduced, distributed
and otherwise exploited without using or violating any other
technology or intellectual property rights owned or licensed
by Consultant and not assigned hereunder, Consultant hereby
grants Company and its successors a perpetual, irrevocable,
worldwide royalty-free, non-exclusive, sublicensable right and
license to exploit and exercise all such technology and
intellectual property rights in support of Company's exercise
or exploitation of the Services, Inventions, other work
performed hereunder, or any assigned rights (including any
modifications, improvements and derivatives of any of
them).
3.
Warranty .
Consultant warrants that: (a) the Services will be performed in a
professional and workmanlike manner and that none of such Services
or any part of th
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