NEW MOTION, INC. CONTRACTOR
AGREEMENT
Effective January 11th 2006, Ray Musci
("Contractor") and New Motion, Inc. (the "Company") agree as
follows:
1. Services and Payment . Contractor agrees to undertake and complete
the Services (as defined in Exhibit A ) in accordance
with and on the schedule specified in Exhibit A . As the
only consideration due Contractor regarding the subject matter of
this Agreement, Company will pay Contractor in accordance with
Exhibit A . Contractor will determine the method,
details and means of performing the Services defined on Exhibit
A . Company shall have no right to, and shall not, control the
manner or determine the method of accomplishing Contractor's
services. In furtherance of the foregoing, Contractor shall perform
the Services required by this Agreement at any place and at such
times as Contractor shall determine.
2. Ownership; Rights; Proprietary Information;
Publicity .
a. Company shall be the sole and exclusive owner
of all right, title and interest (including patent rights,
copyrights and copyright renewals, trade secret rights, mask work
rights, trademark rights, database rights and all other
intellectual and industrial property rights of any sort throughout
the world) in, to and 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 Contractor in connection with
Services and/or any Proprietary Information (as defined below),
from the moment of creation and/or inception, and all results and
proceeds of Contractor's Services and/or any Proprietary
Information and all elements of any of the foregoing (collectively,
"Inventions") and Contractor will promptly disclose and provide all
Inventions to Company. The Inventions are and shall be a
"work-made-for-hire" for Company under United States copyright law.
To the extent that the Inventions are not deemed to be a
"work-made-for-hire," Contractor hereby makes all assignments
necessary to accomplish the foregoing ownership. Contractor shall
further 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.
Contractor hereby irrevocably designates and appoints Company as
its agents and attorneys-in-fact to act for and in
Contractor’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
Contractor.
b. Contractor agrees that all Inventions and all
other business, technical and financial information (including,
without limitation, the identity of and information relating to
customers or employees) Contractor develops, learns or obtains in
connection with Services or that are received by or for Company in
confidence, constitute "Proprietary Information." Contractor will
hold in confidence and not disclose or, except in performing the
Services, use any Proprietary Information. However, Contractor
shall not be obligated under this paragraph with respect to
information Contractor can document is or becomes readily publicly
available without restriction through no fault of Contractor. Upon
termination and as otherwise requested by Company, Contractor will
promptly return to Company all items and copies containing or
embodying Proprietary Information, except that Contractor may keep
its personal copies of its compensation records and this Agreement.
Contractor also recognizes and agrees that Contractor has no
expectation of privacy with respect to Company’s
telecommunications, networking or information processing systems
(including, without limitation, stored computer files, email
messages and voice messages) and that Contractor’s activity,
and any files or messages, on or using any of those systems may be
monitored at any time without notice.
c. As additional protection for Proprietary
Information, Contractor agrees that during the period over which it
is (or is supposed to be) providing Services and for one year
thereafter, Contractor will not encourage, solicit, recruit or hire
any employee or Contractor of Company to leave Company for any
reason. In the event Contractor does encourage, solicit, recruit or
hire an employee or Contractor of Company during the period of time
specified in the foregoing sentence, Contractor shall pay to
Company a cash fee equal to one hundred percent (100%) of such
hired employee's first year salary or one hundred percent (100%) of
the gross payments made to such hired Contractor, whichever is
less.
d. To the extent allowed by law, Section 2.a
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. Contractor hereby grants to Company the right to change, add
to, take from, translate, reformat, or reprocess, subtract from,
alter, amend, modify, use or no use the whole or any part of the
Inventions free of any so-called "moral rights." To the extent any
of the foregoing is ineffective under applicable law, Contractor
hereby provides any and all ratifications and consents necessary to
accomplish the purposes of the foregoing to the extent possible.
Contractor will confirm any such ratifications and consents from
time to time as requested by Company. If any other person provides
any Services or provides services similar to any of those referred
to in clause (ii) above in this paragraph in connection with
the Services, Contractor will obtain the foregoing ratifications,
consents and authorizations from such person for Company’s
exclusive benefit.
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 technology or
intellectual property rights owned or licensed by Contractor and
not assig
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