This Consulting Services Agreement involves
Title: CONSULTING AGREEMENT
Governing Law: California Date: 7/25/2016
Industry: Apparel/Accessories Sector: Consumer Cyclical
THIS CONSULTING AGREEMENT (“ Agreement ”) is made and entered as of July 19, 2016 (the “ Effective Date ”) by and between Nancy Agger-Nielsen (“ Consultant ”), on the one hand, and Talon International, Inc., a Delaware corporation (“ Company ”), on the other hand.
WHEREAS, Company wishes to engage Consultant for Services and Consultant agrees to provide those Services described herein and for the compensation and otherwise in accordance with the terms and conditions contained in this Agreement,
NOW, THEREFORE, in consideration of the foregoing and of the mutual promises hereinafter set forth, the parties agree as follows:
1. Services . During the term of this Agreement, Consultant agrees to assist in the transition of her responsibilities as Chief Financial Officer of the Company to her successor, if and when identified by the Company (the “ Services ”). Consultant shall not be obligated to provide more than 10 hours of Service to the Company during any calendar week.
2. Relationship of the Parties . Consultant is an independent contractor and is not an employee, agent or partner of Company. Consultant is not eligible to participate in or receive any benefit from any benefit plan or program available to employees of Company, such as health, disability, or life insurance, vacation or holiday pay, sick leave, profit sharing or pension plans. Consultant does not have the authority to act on behalf of Company or to bind Company in any respect whatsoever, or to incur any debts or liabilities in the name of or on behalf of Company. Persons performing the Services hereunder are not agents or employees of Company and Consultant has and hereby retains the right to exercise full control of and supervision over all employees assisting in the performance of the Services.
3. Compensation . As sole compensation for the Services to be provided by Consultant to the Company:
3.1. the Company shall pay Consultant an aggregate of $75,000.00, which amount shall be paid in bi-weekly installments of $8,333.33 at the same time the Company pays its employees; and
3.2. if Consultant is eligible for, and elects continuation coverage pursuant to the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended (“ COBRA ”) and/or the California Continuation Benefits Replacement Act (“ Cal-COBRA ”), as applicable, for Consultant and Consultant’s eligible dependents (as applicable) under a health, dental, or vision plan sponsored by the Company, within the time period prescribed pursuant to COBRA and/or Cal COBRA, the Company will reimburse Consultant, as and when due to the COBRA and/or Cal-COBRA carrier, for up to $1,500 per month of the premiums for such coverage until the earliest to occur of (A) termination of this Agreement, (B) the date upon which Consultant enrolls for coverage under a health, dental, or vision insurance plan of a subsequent employer of Consultant or Consultant’s spouse, and (C) the date Consultant or Consultant’s dependents cease to be eligible for COBRA and Cal-COBRA coverage (these payments will be subject to any applicable tax withholdings (including tax withholdings necessary to ensure that the provision of this benefit is not deemed a discriminatory practice giving rise to penalties to the Company under applicable laws) and will be counted as coverage pursuant to COBRA and/or Cal-COBRA to the maximum extent permitted under applicable law.
Consultant’s compensation shall include and Consultant shall be responsible for the payment of all federal, state and local taxes of any kind which are attributable to the compensation she receives. Notwithstanding anything in this Agreement to the contrary, this Agreement, and the Company’s obligation to pay Consultant the amounts set forth herein, is conditional upon Consultant’s execution and delivery of, and failure to revoke, that certain Separation Terms and General Release Agreement, dated July 19, 2016 (the “ Release Agreement ”). If Consultant fails to execute and deliver the Release Agreement, or revokes the Release Agreement pursuant to the terms thereof, this Agreement shall be null and void and of no force or effect.
4. Term . This Agreement shall commence on the Effective Date and, unless terminated earlier in accordance with Section 9, this Agreement shall continue in effect for a period of 4 months.
5. Confidentiality .
5.1. Proprietary Information . “ Proprietary Information ” means all information, whether now existing or hereafter developed, created or discovered by Company or on behalf of Company pursuant to this Agreement, that became or will become known by, or was or is transmitted or otherwise conveyed to Consultant, related to the assets acquired by Company pursuant to the Purchase Agreement or otherwise related to Company’s commercialization of the Inventions including, but not limited to, information about the Inventions, trade secrets, designs, know-how, processes, ideas, techniques, inventions (whether patentable or not), works of authorship, formulas, business and product development plans, customer lists, Company’s customers or suppliers, and other information concerning Company’s actual or anticipated business, research or development, or which is received in confidence by or for Company from any other person, or any business, financial, product or customer information and inventions.
5.2. Protection . Consultant will not, during or subsequent to the term of this Agreement, use any of the Proprietary Information for any purpose whatsoever other than the performance of the Services under this Agreement, or disclose any of the Proprietary Information to any third party. Consultant further agrees to take all reasonable precautions to prevent any unauthorized disclosure of the Proprietary Information.
5.3. Exceptions . Proprietary Information does not include information that:(i) is known to Consultant (excluding information relating to the assets acquired by Company pursuant to the Purchase Agreement or created or developed by Consultant in the performance of the Services) prior to the time of Consultant’s receipt as evidenced by written records; (ii) is or becomes publicly known and made generally available through no improper action or inaction by Consultant; (iii) is independently developed by Consultant (except in connection with Consultant’s performance of the Services) without use of or reference to the Proprietary Information; or (iv) has been rightfully received by Consultant from a third party who is authorized to make such disclosure without restriction or any requirement of confidentiality.
5.4. Return or Destruction . Upon the termination or expiration of this Agreement, or upon Company’s earlier request, Consultant will deliver to Company (and will not recreate or deliver to anyone else) all of the Proprietary Information in Consultant’s possession or control; or upon Company’s request, Consultant will destroy all Proprietary Information in Consultant’s possession, including all c