Unassociated Document


    

      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. 

       

      
        
          
          

        

        
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      (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., 10th
        Floor

      San
        Francisco, CA 94103

      415-978-3020

       

      Contractor’s
        Notice Address:

       

      Michael
        Downing


      
        [ADDRESS
          OMITTED]

      

       

      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. 

       

      
        
          
          

        

        
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      (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, penalties, and
        reasonable attorney fees and costs, that Company may incur or suffer and
        that
        result from, or are related to, any breach or failure of Contractor to perform
        any of the representations, warranties, and agreements in this Agreement.
        

       

      
        
          
          

        

        
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      10.  OWNERSHIP
        OF INTELLECTUAL PROPERTY

       

      (a)  Contractor
        agrees that all designs, plans, reports, specifications, drawings, schematics,
        prototypes, models, inventions, and all other information and items, if any,
        made during the course of this Agreement and arising from the Services (“New
        Developments”) shall be and are assigned to Company as its sole and exclusive
        property. On Company’s request, Contractor agrees to assist Company, at
        Company’s expense, to obtain patents or copyrights for such New Developments,
        including the disclosure of all pertinent information and data, the execution
        of
        all applications, specifications, oaths, and assignments, and all other
        instruments and papers that Company shall deem necessary to apply for and
        to
        assign or convey to Company, its successors, and assigns or nominees, the
        sole
        and exclusive right, title, and interest in such New Developments. 

       

      (b)  Contractor
        agrees to obtain or has obtained written assurances from Contractor’s employees
        and subcontractors of their agreement to these terms regarding Proprietary
        Information and New Developments.

       

      (c)  Contractor
        warrants that Contractor has good title to any New Developments and the right
        to
        assign New Developments to Company free of any proprietary rights of any
        other
        party or any other encumbrance whatsoever. Contractor further agrees not
        to
        disclose to the Company, or bring onto the Company’s premises, or induce the
        Company to use any confidential information that belongs to anyone other
        than
        the Company or Contractor. Contractor agrees to indemnify the Company from
        any
        and all loss or liability incurred by reason of the alleged breach by Contractor
        of any confidentiality or services agreement with anyone other than the
        Company.

       

      (d)  The
        representations and warranties contained herein and Contractor’s obligations
        under Paragraphs 10 and 11 of this Agreement shall survive termination of
        the
        Agreement.

       

      11.  PROPRIETARY
        INFORMATION

       

      (a)  “Proprietary
        Information” means all information pertaining to the business of Company,
        unless: (i) the information is or becomes publicly known through lawful
        means; (ii) the information was part of Contractor’s general knowledge
        prior to Contractor’s relationship with Company; or (iii) the information
        is disclosed to Contractor without restriction by a third party who rightfully
        possesses the information and did not learn of it from the Company. This
        definition includes, but is not limited to: (A) techniques, development
        tools, processes, formulas and improvements; (B) information about costs,
        profits, markets, sales, customers, and bids; (C) plans for business,
        marketing, future development and new product concepts; and (D) information
        on Company’s employees, agents, or divisions. The written, printed, graphic, or
        electronically recorded materials furnished by Company for use by Contractor
        are
        Proprietary Information and are the property of Company. 

       

      (b)  Contractor
        shall maintain in confidence and shall not, directly or indirectly, disclose
        or
        use, either during or after the term of this Agreement, any Proprietary
        Information, confidential information, or know-how belonging to Company,
        whether
        or not it is in written or permanent form, except to the extent necessary
        to
        perform the Services. On termination of Contractor’s services to Company, or at
        the request of Company before termination, Contractor shall deliver to Company
        all material in Contractor’s possession, custody or control relating to
        Company’s business, including Proprietary Information. The obligations on
        Proprietary Information extend to information belonging to customers and
        suppliers of Company about whom Contractor may have gained knowledge as a
        result
        of performing the Services. 

       

      
        
          
          

        

        
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      (c)  Contractor
        shall not, during the term of this Agreement and for a period of one year
        immediately after the termination of this Agreement, or any extension of
        it, for
        any reason, either directly or indirectly (a) call on, solicit, or take
        away any of Company’s customers (including but not limited to Customers as
        described in Exhibit A) or potential customers about whom Contractor became
        aware as a result of Contractor’s Services to Company, either for Contractor or
        for any other person or entity; or (b) solicit or take away or attempt to
        solicit or take away any of Company’s employees or potential employees or
        contractors either for Contractor or for any other person or entity.


       

      (d)  Nothing
        in this Paragraph 11 is intended to limit any remedy of Company under
        law.

       

      12.  ARBITRATION

       

      (a)  All
        disputes between Contractor, including any employees of Contractor, and Company
        relating in any way to this Agreement or the Services to be performed under
        this
        Agreement (including, but not limited to, claims for breach of contract,
        tort,
        discrimination, harassment, and any violation of federal or state law)
        (“Arbitrable Claims”) shall be resolved by arbitration before a neutral
        arbitrator.

       

      (b)  The
        arbitrator shall be selected and the arbitration hearing conducted pursuant
        to
        the Commercial Arbitration Rules of the American Arbitration Association
        and
        shall take place in San Francisco, California, unless otherwise agreed by
        the
        Parties. Arbitration shall be final and binding upon the Parties and shall
        be
        the exclusive remedy for all claims covered by this arbitration provision.
        Either party may bring an action in court to compel arbitration under this
        Agreement, to enforce an arbitration award or to obtain temporary injunctive
        relief pending a judgment based on the arbitration award. Otherwise, neither
        party shall initiate or prosecute any lawsuit or administrative action in
        any
        way related to any Arbitrable Claim. THE PARTIES HEREBY WAIVE ANY RIGHTS
        THEY
        MAY HAVE TO TRIAL BY JURY IN REGARD TO ARBITRABLE CLAIMS, INCLUDING WITHOUT
        LIMITATION ANY RIGHT TO TRIAL BY JURY AS TO THE MAKING, EXISTENCE, VALIDITY,
        OR
        ENFORCEABILITY OF THE AGREEMENT TO ARBITRATE. 

       

      13.  MISCELLANEOUS
        PROVISIONS

       

      (a)  Assignment;
        Successors and Assigns.
        Contractor agrees that Contractor will not assign, delegate, transfer, or
        otherwise dispose of the Services without the written consent of Company.
        Nothing in this Agreement shall prevent the consolidation of either party
        with,
        or their merger into, any other corporation, or the sale by either party
        of all
        or substantially all of its properties or assets, or the assignment by either
        party of this Agreement and the performance of its obligations hereunder
        to any
        successor in interest or any affiliated Company. Subject to the foregoing,
        this
        Agreement shall be binding upon and shall inure to the benefit of the Parties
        and their respective heirs, legal representatives, successors, and permitted
        assigns, and shall not benefit any person or entity other than those enumerated
        above. 

       

      
        
          
          

        

        
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      (b)  Entire
        Agreement. The
        terms
        of this Agreement are intended by the Parties to be the final expression
        of
        their agreement with respect to the subject matter of this Agreement and
        may not
        be contradicted by evidence of any prior or contemporaneous agreement, except
        as
        expressly set forth in this Agreement. The Parties further intend that this
        Agreement shall constitute the complete and exclusive statement of its terms
        and
        that no extrinsic evidence whatsoever may be introduced in any judicial,
        administrative, or other legal proceeding involving this Agreement.


       

      (c)  Amendments;
        Waivers. This
        Agreement shall not be varied, altered, modified, changed or in any way amended
        except by an instrument in writing executed by Contractor and a duly authorized
        representative of Company. 

       

      (d)  Severability;
        Enforcement. If
        any
        provision of this Agreement, or the application thereof to any person, place,
        or
        circumstance, shall be held by an arbitrator or a court of competent
        jurisdiction to be invalid, unenforceable, or void, the remainder of this
        Agreement and such provisions as applied to other persons, places, and
        circumstances shall remain in full force and effect, and such provision shall
        be
        enforced to fullest extent consistent with applicable law. 

       

      (e)  Governing
        Law.
        Except
        as otherwise provided, the validity, interpretation, enforceability, and
        performance of this Agreement shall be governed by and construed in accordance
        with the laws of California.

       

      (f)  Interpretation.
        This
        Agreement shall be construed as a whole, according to its fair meaning, and
        not
        in favor of or against any party. By way of example and not in limitation,
        this
        Agreement shall not be construed in favor of the party receiving a benefit
        or
        against the party responsible for any particular language in this Agreement.
        Captions are used for reference purposes only and should be ignored in the
        interpretation of this Agreement. 

       

      14.  ACKNOWLEDGEMENT

       

      The
        Parties acknowledge that: (i) they have each had the opportunity to consult
        with independent counsel of their own choice concerning this Agreement and
        have
        done so to the extent they deem necessary, and (ii) they each have read and
        understand the Agreement, are fully aware of its legal effect, and have entered
        into it voluntarily and freely based on their own judgment and not on any
        promises or representations other than those contained in the
        Agreement.

       

      
        
          
          

        

        
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      The
        Parties have duly executed this Agreement as of the date first written
        above.


      
        

          
            	
                    GOFISH
                      CORPORTION:

                  	 	
                    MICHAEL
                      DOWNING

                  	 
	 	 	 	 
	 	 	 	 
	
                    By:

                  	 	 	 	 
	 	
                    Name

                  	 	 	 
	 	 	 	 
	
                    Title:

                  	 	 	 	 


          

        

      


      
        
          
          

        

        
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      Schedule
        A

      


      Payment
        Schedule

      


      June
        4,
        2008 - $10,000

      


      July
        1,
        2008 - $40,000

      


      August
        1,
        2008 - $10,000

      


      September
        1, 2008 - $10,000

      


      October
        1, 2008 - $10,000

      


      November
        1, 2008 - $10,000

      


      December
        1, 2008 - $10,000

      


      January
        1, 2009 - $10,000

      


      February
        1, 2009 - $10,000

       

      
        
          
          

        

        
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