INDEPENDENT CONTRACTOR AGREEMENT
This
Agreement is entered into on June 4, 2008 (the
“Effective Date”) by and between Michael Downing
(“Contractor”) and GoFish Corporation, a Nevada
corporation (“Company”) (collectively, the
“Parties”).
1.
CONTRACTOR’S SERVICES
(a)
Contractor agrees to perform such services (“Services”)
as may reasonably be requested in writing by the Company, not to
exceed twenty hours per month.
(b)
Contractor may, at Contractor’s own expense, use employees or
other subcontractors to perform the Services under this
Agreement.
2.
COMPENSATION
Company
agrees to pay Contractor one hundred twenty thousand dollars
($120,000) (the “Fee”) for the Services, payable
in monthly installments of ten thousand dollars
($10,000) ,
via wire transfer on the dates set forth in Schedule
A.
In
addition, the Company will grant Contractor an option (the
“Option”) to purchase three hundred thousand
shares of the Company’s common stock, par value $0.001,
(the “Common Stock”) with an exercise price equal
to the closing price of the Common Stock on the date the
Company’s board of directors approves the
Option.
3.
EXPENSES
Company
agrees to reimburse Contractor for all itemized
expenses
reasonably incurred and previously approved in the performance
of the Services upon production of supporting receipts and
documentation.
4.
TERM OF AGREEMENT
(a)
The term of this Agreement will begin on the Effective Date and end
after one year.
(b)
If this Agreement is terminated prior to the end of the term of
this Agreement by the Company for any reason, Contractor shall be
entitled to immediate payment of the entire unpaid portion of the
Fee. Thereafter, Company shall owe Contractor no further amounts or
obligations.
5.
DEFAULT
(a)
If either party defaults in the performance of this Agreement or
materially breaches any of its provisions, the nonbreaching party
may terminate this Agreement by giving written notification to the
breaching party. Termination shall be effective immediately on
receipt of the written notification by the breaching party, or five
days after mailing of the notice to the address set forth in the
notice provisions below, whichever occurs first.
(b)
This Agreement terminates automatically on the occurrence of any of
the following events: (i) Appointment of a receiver, liquidator, or
trustee for either Party by decree of competent authority in
connection with any adjudication or determination by such authority
that either Party is bankrupt or insolvent; (ii) the filing by
either Party of a petition in voluntary bankruptcy, the making of
an assignment for the benefit of its creditors, or the entering
into of a composition with its creditors.
6.
NOTICES
(a)
Any notice under this Agreement must be in writing and shall be
effective upon delivery by hand, by facsimile or one business day
after delivery through a nationally recognized courier service
addressed to Company or to Contractor at the corresponding address
below. Contractor shall be obligated to notify Company in writing
of any change in Contractor’s address. Notice of change of
address shall be effective only when done in accordance with this
Paragraph.
Company’s
Notice Address:
706
Mission St., 10
th Floor
San
Francisco, CA 94103
415-978-3020
Contractor’s
Notice Address:
Michael
Downing
7.
RELATIONSHIP OF THE PARTIES
(a)
Contractor enters into this agreement as, and shall continue to be,
an independent contractor. In no circumstance shall Contractor look
to Company as Contractor’s employer, partner, agent, or
principal. Neither Contractor nor any employee of Contractor (which
for purposes of this Paragraph shall be included in the term
“Contractor”) shall be entitled to any benefits
accorded to Company’s employees, including workers’
compensation, disability insurance, retirement plans, or vacation
or sick pay. Contractor’s exclusion from benefit programs
maintained by Company is a material component of the terms of
compensation negotiated by the Parties, and is not premised on
Contractor’s status as a non-employee with respect to
Company. To the extent that Contractor may become eligible for any
benefit programs maintained by Company (regardless of the timing of
or reason for eligibility), Contractor hereby waives
Contractor’s right to participate in the programs.
Contractor’s waiver is not conditioned on any representation
or assumption concerning Contractor’s status under the common
law test. Contractor also agrees that, consistent with
Contractor’s independent contractor status, Contractor will
not apply for any government-sponsored benefits that are intended
to apply to employees, including, but not limited to, unemployment
benefits.
(b)
Contractor shall be responsible for providing, at
Contractor’s expense and in Contractor’s name,
disability, workers’ compensation, or other insurance as well
as licenses and permits usual or necessary for performing the
Services. Contractor shall pay, when and as due, any and all taxes
incurred as a result of Contractor’s compensation, including
estimated taxes and payroll taxes, and shall provide Company with
proof of payment on demand. Contractor indemnifies Company for any
claims, losses, costs, fees, liabilities, damages, or injuries
suffered by Company arising from Contractor’s breach of the
provisions of this Paragraph 7.
(c)
Contractor and Company shall provide to each other upon request any
information reasonably necessary to determine their obligations
under this Agreement, to fulfill the purposes of the Services, or
to maintain accurate records.
8.
PLACE OF WORK
Contractor
is generally free to perform Contractor’s Services at a
location of Contractor’s choosing. Contractor
understands that the Services must coordinate with
Company’s established protocols and security
requirements.
9.
CONTRACTOR’S REPRESENTATIONS AND
INDEMNITIES
(a)
Contractor represents that Contractor has the qualifications and
ability to perform the Services in a professional manner, without
the advice, control, or supervision of Company. Contractor shall be
solely responsible for the professional performance of the Services
and shall require no assistance, direction, or control from
Company. Contractor shall have sole discretion and control of
Contractor’s services and the manner in which they are to be
performed.
(b)
Contractor shall and does hereby indemnify, defend, and hold
harmless Company, and Company’s officers, directors,
employees and shareholders, from and against any and all claims,
demands, losses, costs, expenses, obligations, liabilities,
damages, recoveries, and deficiencies, including interest,
penalti
