Exhibit 10.1
CONSULTING SERVICES AGREEMENT
THIS Agreement is made as of the Monday, January 13, 2020
(hereinafter referred to as the "Effective Date"), by and between
Zoom Telephonics, Inc. (hereinafter referred to as "ZOOM") lawfully
doing business at 225 Franklin Street, 26th
Floor, Boston, MA 02110 USA and
Jacquelyn Barry Hamilton DBA as Delfinavent, LLC (hereinafter
referred to as "CONSULTANT") lawfully doing business at Zoom
Telephonics, Inc.
WITNESSETH
WHEREAS, CONSULTANT desires to provide services to ZOOM and ZOOM
desires to have certain services provided;
NOW THEREFORE, ZOOM and CONSULTANT (hereinafter referred to as the
"Parties") do hereby mutually agree as follows:
1.
TERM OF THIS AGREEMENT:
The term of this Agreement shall commence on the Effective Date and
shall continue to April 13, 2020. After the initial three (3) month
period, this Consulting Services Agreement will terminate, unless
the Parties mutually agree to extend in writing (10) business days
prior to the expiration date.
2.
SPECIFICATION OF SERVICES AND COMPENSATION:
Services provided by CONSULTANT shall be on a month-to-month basis.
The nature of the services to be provided by CONSULTANT is
specified in Exhibit A (the
“Services” or
“services”), which
is attached hereto and made a part hereof. For the services of
CONSULTANT, ZOOM agrees to pay CONSULTANT at the rate specified
in Exhibit
B. CONSULTANT will keep
accurate records of the time expended in performing services
hereunder, and payment shall be made by ZOOM via ACH electronic
fund transfer to CONSULTANT’s designated bank account at Net
Thirty (30) days payment terms upon submission of
CONSULTANT’s electronically mailed WEEKLY invoices and signed approval by ZOOM’s
authorized personnel. The electronically mailed WEEKLY invoices shall be reviewed promptly upon receipt
and approval for payment shall not be unreasonably
withheld.
ZOOM shall reimburse CONSULTANT for any travel or out-of-pocket
expense incurred which may be required from time to time in the
delivery of services under this agreement. Any reimbursable travel
or reimbursable expense must be approved in writing by ZOOM’s
authorized personnel in advance of incurring the expense. Approval
for reimbursement shall be in accordance with ZOOM travel and
expense reimbursement policies in effect when the reimbursable
expense is incurred.
All records necessary to support compensable payments under this
Agreement shall be maintained by CONSULTANT on a current basis and
shall be retained for one (1) year after completion of services.
Upon reasonable notice, such records shall be made available for
review and verification by ZOOM.
|
Consultant
Services Agreement
|
Private
and Confidential
|
Page
1
|
CONSULTANT agrees to provide ZOOM with written or oral progress
reports at such times as ZOOM shall request. The time reasonably
required for preparing such reports will be
reimbursable.
3.
INDEPENDENT CONTRACTOR:
The relationship between CONSULTANT and ZOOM shall be, and shall at
all times remain, that of independent contractor and not that of
employer and employee, master and servant, or principal and agent.
CONSULTANT shall have no authority to act for ZOOM as ZOOM's agent
or to make any commitments for ZOOM. CONSULTANT agrees to do all
things legally required to establish and maintain CONSULTANT's
status as an independent contractor.
CONSULTANT represents that: (a) CONSULTANT is free from
ZOOM’S control and direction and will work independently in
connection with performance of the Services; (c) the Services are
outside the usual course of business of ZOOM; and (d) CONSULTANT is
customarily engaged in an independently established trade,
occupation, profession or business of the same nature as the
Services. CONSULTANT represents that CONSULTANT offers services to
the relevant market. CONSULTANT acknowledges and agrees that
CONSULTANT is responsible for ordering or sequencing its work, and
for providing the tools, staff, supplies and know-how necessary to
perform the Services. CONSULTANT is solely responsible, and will
indemnify and hold ZOOM harmless, for any payment of taxes on
compensation that CONSULTANT receives for the Services and for any
and all claims and damages arising out of or in connection with
Consultant’s performance of the Services, or arising out of
or related to any employees or independent Consultants engaged by
CONSULTANT.
CONSULTANT acknowledges that CONSULTANT must not at any time hold
itself out as, or make any statements that may reasonably result in
an individual or entity believing that it is, an employee of ZOOM
or has authority to bind ZOOM or act as an agent of ZOOM, except as
is required for performance of the Services. For avoidance of
doubt, CONSULTANT may not at any time use ZOOM’s name or
address on any business card, signature block, letterhead, or any
other such materials that would indicate or be interpreted as
indicating that CONSULTANT has any relationship other than that of
an independent Consultant with ZOOM, without ZOOM’s express
written authorization.
4.
COMPLIANCE WITH RULES AND LAWS:
Notwithstanding the provisions of Paragraph 3, CONSULTANT agrees to
abide by ZOOM rules and regulations and to do only that which is in
the best interests of the ZOOM. CONSULTANT will perform only those
services identified in Paragraph 2 and will work only in areas
designated for such services.
|
Consultant
Services Agreement
|
Private
and Confidential
|
Page
2
|
CONSULTANT shall comply, and do all things necessary for ZOOM to
comply, with all governmental and quasi-governmental laws,
statutes, ordinances, rules, regulations and orders applicable to
the services provided by CONSULTANT under this Agreement,
including, but not limited to, workers' compensation, safety and
health, wage and hour, discrimination and labor law. In addition,
CONSULTANT specifically agrees that it has complied with and will
continue to comply with the Immigration Reform and Control Act of
1987. CONSULTANT agrees to and shall indemnify ZOOM and hold ZOOM
harmless for any penalties assessed against ZOOM because of its
contractual relationship with CONSULTANT.
CONSULTANT hereby assures ZOOM that it does not intend to and will
not knowingly, without the prior written consent, if required, of
the Office of Export Licensing of the U.S. Department of Commerce,
transmit directly or indirectly any technical data, software or
other information outside of the United States of
America.
CONSULTANT shall not discriminate against any person with respect
to hiring, firing or other terms and conditions of employment
because of race, color, religion, sex, national origin, physical or
mental handicap, Vietnam Era or disabled veteran
status.
CONSULTANT will indemnify ZOOM, its employees, officers, directors,
agents, representatives and its affiliates from an against all and
any liability, loss, damage, costs and expenses which ZOOM and/or
its affiliates may incur or suffer, whether direct, indirect or
consequential, in connection with any claim by any current or
former employee of ZOOM, or any third party, based on any claim
arising out of or connected with or related to CONSULTANT’s
act(s) or omission(s), including any claim by a third party for
CONSULTANT’s Services infringing upon such third
party’s rights.
5.
ASSIGNMENT OF INVENTIONS:
A.
Subject
to paragraph B immediately below, CONSULTANT hereby assigns and
agrees to assign to ZOOM all of CONSULTANT's right, title and
interest in and to any inventions, formulas, techniques, processes,
ideas, algorithms, discoveries, designs, developments and
improvements which CONSULTANT may make, reduce to practice,
conceive, invent, discover, design or otherwise acquire during the
term of and arising out of services performed under this Agreement,
whether or not made during regular working hours, relating to the
actual or anticipated business, products, research or development
of ZOOM (collectively, "Inventions").
B.
The
foregoing shall not apply to, and CONSULTANT shall not be required
to assign any of CONSULTANT's rights in an invention that
CONSULTANT developed entirely on CONSULTANT's own time without
using ZOOM's equipment, supplies, facilities, computer programs,
trade secret(s) and/or other proprietary and/or confidential
information, except for those inventions that either:
|
Consultant
Services Agreement
|
Private
and Confidential
|
Page
3
|
(i)
relate
directly or indirectly at the time of conception or reduction to
practice of the invention, to ZOOM's business, or to the actual or
contemplated products, research or development of ZOOM,
or
(ii)
result
from any work performed by CONSULTANT for ZOOM.
6.
TRADE SECRETS, CONFIDENTIAL, AND/OR PROPRIETARY
INFORMATION:
CONSULTANT shall regard and preserve as confidential: (i) all trade
secrets and/or other proprietary and/or confidential information
belonging to ZOOM; and (ii) all trade secrets and/or other
proprietary and/or confidential information belonging to a third
party which have been confidentially disclosed to ZOOM, which trade
secrets and/or other proprietary and/or confidential information
described in (i) and (ii) above (collectively, "Confidential
Information") have been or may be developed or obtained by or
disclosed to CONSULTANT by reason of CONSULTANT's relationship with
ZOOM. CONSULTANT shall not, without written authority from ZOOM to
do so, use for CONSULTANT's own benefit or purposes, or the benefit
or purpose of any person or entity other than ZOOM, nor disclose to
others, either during the term of this Agreement or thereafter,
except as required in the course of performance of services under
this Agreement, any Confidential Information. This provision shall
not apply to Confidential Information that has been voluntarily
disclosed to the public by ZOOM, or otherwise entered the public
domain through lawful means. Confidential Information shall
include, but not be limited to, all nonpublic information relating
to ZOOM's (i) business, research, development and marketing plans,
strategies and forecasts; (ii) business; (iii) products (whether
existing, in development, or being contemplated); (iv) customers'
identities, usages, and requirements; (v) reports; (vi) formulas;
(vii) specifications; (viii) designs, software and other
technology; (ix) research and development programs; and (x) terms
of contracts.
CONSULTANT agrees that no confidential and/or proprietary
information of any other person or corporation will be utilized by
CONSULTANT in the performance of this Agreement and that the
information supplied or utilized by CONSULTANT will not be under
any restriction as to its use, without fee or royalty to CONSULTANT
or any third party, by ZOOM or ZOOM's subsidiaries, affiliates,
customers or licensees.
|
Consultant
Services Agreement
|
Private
and Confidential
|
Page
4
|
7.
WORKS OF AUTHORSHIP:
CONSULTANT agrees that any original works of authorship, including,
without limitation, all documents, blueprints, drawings, mask works
and computer programs (including, without limitation, all software,
firmware. object code, source code, documentation, specifications.
revisions, supplements, modules, and upgrades), conceived, created,
performed or produced during the term of and arising out of the
performance of services under this Agreement, and all foreign and
domestic, registered and unregistered, copyrights and mask work
rights and applications for registrations therefore related to any
such work of authorship, in each case, whether or not made during
regular working hours, relating to the actual or anticipated
business, products, research or development of ZOOM (collectively,
"Works of Authorship") shall be the exclusive property of ZOOM. To
the extent that CONSULTANT has or obtains any right, title or
interest in or to any Works of Authorship which are applicable in
any way to the services performed under this Agreement, CONSULTANT
hereby grants and agrees to grant to ZOOM a perpetual, worldwide,
royalty-free, nonexclusive license to use all such Works of
Authorship insofar as is reasonably necessary for ZOOM's
unrestricted use of any result of the services provided to ZOOM by
CONSULTANT.
8.
DISCLOSURE:
CONSULTANT shall promptly and fully disclose any and all Inventions
and Works of Authorship to an appropriate representative of ZOOM as
designated in writing by the ZOOM.
9.
FURTHER ASSISTANCE:
CONSULTANT shall, during the term of this Agreement and at any time
thereafter, upon the request of and at the expense of ZOOM, do all
acts and things including, but not limited to, making and executing
documents, applications and instruments and giving information and
testimony, in each case, deemed by ZOOM from time to time, in its
sole discretion, to be necessary or appropriate (i) to vest,
secure, defend, protect or evidence the right, title and interest
of ZOOM in and to any and all Inventions, Works of Authorship and
Confidential Information owned by ZOOM or required by this
Agreement to be assigned to ZOOM; and (ii) to obtain for ZOOM, in
relation to all such, letters patent, design registrations,
copyright registrations and/or mask work registrations, in the
United States and any foreign countries, and/or any reissues,
renewals and/or extensions thereof.
10.
RETURN OF DOCUMENTS:
All
media on which any Inventions, Works of Authorship or Confidential
Information may be recorded or located, including, without
limitation, documents, samples, models. blueprints, photocopies,
photographs, drawings, descriptions, reproductions, cards, tapes,
discs and other storage facilities (collectively. "Documentation")
made by CONSULTANT or that come into CONSULTANT's possession by
reason of CONSULTANT's relationship hereunder with ZOOM are the
property of ZOOM and shall be returned to ZOOM by CONSULTANT upon
termination of this Agreement. CONSULTANT will not deliver,
reproduce, or in any way allow any Documentation to be delivered or
used by any third party without the written direction or consent of
a duly authorized representative of ZOOM.
11.
PREVIOUS OBLIGATIONS:
CONSULTANT represents and warrants to ZOOM that CONSULTANT has no
continuing obligation with respect to assignment of inventions,
developments or improvements to any previous employer(s) or any
other party, nor does CONSULTANT claim any existing title in any
previous unpatented inventions, developments or improvements within
the scope of this Agreement except as may be set forth on an
Exhibit hereto acknowledged on the face thereof as an Exhibit
hereto by an authorized representative of ZOOM.
|
Consultant
Services Agreement
|
Private
and Confidential
|
Page
5
|
12.
CONFLICTING EMPLOYMENT:
CONSULTANT agrees that, during the term of its consulting
relationship with the Company, CONSULTANT will not engage in any
other employment, occupation, consulting or other business activity
directly related to the business in which the Company is now
involved or becomes involved during the term of its consulting
relationship, nor will CONSULTANT engage in any other activities or
potentially compete with the Company.
13.
SOLICITATION OF EMPLOYEES/CUSTOMERS:
CONSULTANT agrees that during the term of CONSULTANT's consulting
relationship and for a period of three (3) years following the
termination of CONSULTANT's consulting relationship with the
Company for any reason, whether with or without cause, CONSULTANT
shall not either directly or indirectly solicit, induce, recruit or
encourage any of the Company's employees or CONSULTANTs to leave
their employment, or take away such employees or CONSULTANTs of the
Company, either for itself or for any other person or
entity.
14.
INDEMNIFICATION - WAIVER OF RIGHTS:
CONSULTANT agrees to indemnify, and hold ZOOM harmless from all
claims for bodily injury or property damage that may arise from
CONSULTANT's services. CONSULTANT waives all rights against ZOOM
for damages covered by CONSULTANT's insurance. In the event that
ZOOM shall authorize CONSULTANT to use one or more subcontractors
under this Agreement. CONSULTANT shall require similar waivers from
all such subcontractors. Waiver of any breach of this Agreement
shall not be implied as a waiver of any other breach of this
Agreement.
15.
GOVERNING LAW:
This Agreement shall be governed by the laws of the Commonwealth of
Massachusetts without regard to its conflict of law rules. For
purposes of jurisdiction, the Parties agree that all disputes shall
be heard exclusively in the state and federal courts located in
Boston, Massachusetts.
16.
NOTICE:
Any written notice provided in relation to this Agreement shall be
considered as valid if sent by certified mail, return receipt
requested to ZOOM at the following address:
Name:
Joe
Wytanis
Title:
President
& COO
Address:
225
Franklin Street
Address:
26th
Floor
City, State,
Zip:
Boston,
MA 02110
Email
Address:
Telephone:
|
Consultant
Services Agreement
|
Private
and Confidential
|
Page
6
|
Any written notice provided in relation to this Agreement shall be
considered as valid if sent by certified mail, return receipt
requested, to CONSULTANT at the following address:
Name:
Jacquelyn Barry Hamilton
Title:
Acting
CFO
Address:
Address:
Email
Address:
Telephone:
17.
SUCCESSORS AND ASSIGNS:
The provisions of this Agreement shall be binding on CONSULTANT and
CONSULTANT's heirs, personal representatives, successors and
assigns and shall inure to the benefit of ZOOM and its successors,
assigns, subsidiaries, affiliated corporations and
ventures.
18.
MISCELLANEOUS PROVISIONS:
The agreements, assignments and representations made by CONSULTANT
hereunder and the obligations of CONSULTANT herein shall survive
the expiration and/or termination of this Agreement, whether by
CONSULTANT or ZOOM. This Agreement may be modified only by a
written instrument duly executed by an officer of ZOOM. No term or
provision of this Agreement shall be deemed waived and no breach
excused unless such waiver or consent shall be in writing and
signed by such an officer of ZOOM. The failure of ZOOM at any time
to enforce performance by CONSULTANT of any provision of this
Agreement shall in no way affect ZOOM's rights thereafter to
enforce the same, nor shall the waiver by ZOOM of any breach of any
provision hereof be deemed to be a waiver by ZOOM of any other
breach of the same or any other provision hereof. The provisions of
this Agreement shall be enforceable notwithstanding the existence
of any claim or cause of action of CONSULTANT against ZOOM, whether
predicated on this Agreement or otherwise.
If any paragraph or provision of this Agreement, or the application
of such paragraph or provision, is held invalid, the remainder of
this Agreement and the application of such paragraph or provision
to persons or circumstances other than those as to which it is held
invalid shall not be affected thereby. This Agreement and
CONSULTANT’s rights and obligations hereunder may not be
assigned by CONSULTANT. This Agreement shall be binding upon and
inure to the benefit of ZOOM and its successors and assigns and
shall be binding upon CONSULTANT and CONSULTANT’s heirs,
executors and administrators.
|
Consultant
Services Agreement
|
Private
and Confidential
|
Page
7
|
19.
ENTIRE AGREEMENT:
This Agreement supersedes all prior and/or contemporaneous
agreement and/or understandings made with respect to the same
subject matter and constitutes the entire agreement between
CONSULTANT and ZOOM with respect to the subject matter hereof. No
modification to this Agreement shall be enforceable, except when in
writing and signed by the Parties hereto.
The Parties hereto, intending to be legally bound hereby, have
caused this CONSULTANT Agreement to be duly executed as of the date
written below.
|
Zoom Telephonics, Inc.
|
|
Delfinavent, LLC
|
|
|
|
|
|
By: /s/ Joe
Wytanis
|
|
By: /s/ Jacquelyn Barry
Hamilton
|
|
|
|
|
|
Name: Joe Wytanis
|
|
Name: Jacquelyn Barry
Hamilton
|
|
|
|
|
|
Title: President & COO
|
|
Title: Manager
|
|
|
|
|
|
Date: 01/18/2020
|
|
Date: January 18,
2020
|
|
|
|
|
|
Consultant
Services Agreement
|
Private
and Confidential
|
Page
8
|
EXHIBIT A
CONSULTING SERVICES
The
CONSULTANT shall provide those services that normally fall under
ZOOM’s Chief Financial Officer Job Responsibilities. The
CONSULTANT will provide these Chief Financial Officer Consulting
Services on an “interim basis” until a full-time Chief
Financial Officer is hired, and a transition is
completed.
Consultant Job Duties
●
Manage
a staff of 3 to 4 individuals.
●
SEC
and internal company reporting, including performance scorecard and
financial dashboards as well as working with our experienced
Controller, auditors, and corporate attorney
●
“Own”
our financials, receivables, payables, cash management, and tax
matters, working with our good team
●
Skill
at working with employees, auditors, lawyers, and our outside
investor relations firm
●
Capable
of good written and verbal communication including communication
with investors and potential investors
●
Able
to capably handle legal matters including contracts, trademarks,
and SEC matters
●
“Own”
budgeting and forecasting
●
Demonstrated
capability in raising money when needed
●
Financial
modeling and sensitivity analysis for new product introductions,
pricing and new contract negotiations
|
Consultant
Services Agreement
|
Private
and Confidential
|
Page
9
|
EXHIBIT B
CONSULTING COMPENSATION AND PAYMENT
CONSULTANT is a 1099 Independent Contractor reporting directly to
Joe Wytanis, President and will be paid $87.00 per hour after each
weekly approved submittal.
Payment terms are Net 30 days to be paid by ACH electronic transfer
to CONSULTANT’s designated business bank
account.
|
Consultant
Services Agreement
|
Private
and Confidential
|
Page
10
|
