Blueprint






	













 


 





 Exhibit 10.19



 


CONSULTING
AGREEMENT

 


October
31, 2017

 





BETWEEN:

 


 


StarFish Product
Engineering, Inc.


(hereinafter
referred to as “StarFish”)

 


AND:

 



ENDRA LIFE SCIENCES, CANADA, INC.


(Hereinafter
referred to as ENDRA)


 


IN
CONSIDERATION of the mutual covenants and agreements herein
contained, and for other good and valuable consideration, the
receipt and sufficiency of which is hereby acknowledged, the
parties hereto agree as follows:


 




1.           


SERVICES





 


a)
ENDRA has retained StarFish to proceed with SOW 1 as outlined in
the accepted proposal 36829 – X6 dated October 13, 2017] (the
“SOW”) attached
hereto as Schedule A. From time to time, the parties may execute
additional statements of work. Upon execution, unless otherwise
expressly agreed, each such additional statement of work shall be
deemed to form a part of and be subject to the terms of this
Agreement. In case of any inconsistency between the terms contained
in the main body of this Agreement and the terms contained in any
statement of work, the terms contained in the main body of this
Agreement shall prevail unless expressly stated otherwise in the
relevant statement of work.

 


b)
StarFish will use commercially reasonable efforts to perform the
services (“Services”) and deliver any
resulting Deliverables described in the SOW and any subsequent
statement of work, in accordance with the terms of this Agreement.
StarFish represents and warrants that all Services will be
performed in a professional and workmanlike manner, in accordance
with generally accepted industry standards, and by individuals who
are duly qualified and possess the requisite skills and
professional knowledge.


 



 

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2.           


PAYMENT TERMS






 


a) Fees
and other compensation to be paid for any work will be as agreed in
the relevant statement of work. The price for the Services will not
include any applicable taxes and expenses. Those Services performed
on a time and materials basis will be provided at the prevailing
StarFish corporate rates.


 


b) A
deposit shall be required prior to commencement of the Services and
will be as agreed in the relevant statement of work. The timeline
for the performance of the Services, delivery of any Deliverables
and invoicing schedule shall be agreed to as set out in the
statement of work. StarFish will invoice ENDRA for all
payments.

 


c)
ENDRA will be liable for all taxes, duties and levies
(“Taxes”)
applicable to the supply of the Services and any Deliverables,
other than taxes on StarFish’s income. All applicable Taxes
shall be clearly identified as listed as separate line items on
each invoice.

 


d)
Expenses will be invoiced to ENDRA, at the end of each invoice
period in which the costs were incurred, plus a mark-up of 15% for
handling. Invoices shall be reasonably detailed such that the
amount of payments for engineering, design, research, analysis,
computer programming and data collection activities, collectively,
are identifiable. Written approval of parts purchases will be
required from ENDRA prior to StarFish purchasing these parts.
StarFish may require an additional deposit to cover all or part of
any expenses before the expenses are incurred.

 


e)
Following completion of the Services, late-arriving expense and
shipping charges will be invoiced once received. This can vary
significantly after completion of the Services. ENDRA understands
and agrees that a portion of the deposit will be retained until
these charges have been paid.

 



f) 

Unless otherwise
expressly stated, all references to monetary amounts contained in
this Agreement, or any in statement of work, purchase orders or
invoices issued pursuant to this Agreement, shall be deemed to be
references to United States dollars.





 


g)
Payment terms for the Services are NET 30 days from date of
invoice. Deposits are due as of the date of invoice. Interest of
1.5% per month (19.6% per annum) will be payable to StarFish on any
overdue invoices.

 


h) Without limiting any other remedies
that it may have in contract, at law or in equity, ENDRA
acknowledges and agrees that in the event that ENDRA fails to make
any payments when due, or is otherwise in material breach of this
Agreement, StarFish may at its discretion, and without liability,
suspend performance of the Services until any outstanding payments
have been received. All timelines and associated delivery dates
shall be deemed to have been adjusted accordingly.


 



 

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3.           


INDEPENDENT CONTRACTORS





 


a) The
parties are independent contractors, and neither party’s
employees, agents, or consultants shall be considered or identified
as employees, agents or consultants of the other party for any
purpose whatsoever. Neither party will have the authority to bind
or act as the agent for the other party.

 


b)
StarFish acknowledges that ENDRA has no obligation to offer
employees, agents, or consultants of StarFish any form of health
benefits program or any other form of compensation. StarFish will
be solely responsible for payment to the proper authorities of all
income taxes, employment insurance, and other premiums,
contributions, withholdings and remittances relating to its
employees’ performance of the Services.

 


c)
Nothing contained herein shall prevent either party from procuring
or providing the same or similar products and services from or to
any third party, provided that there is no breach of any
obligations pertaining to confidentiality or the use and protection
of intellectual property.


 




4.           


INTELLECTUAL PROPERTY RIGHTS






 


a)
StarFish agrees to promptly disclose and deliver to ENDRA all
information, inventions, creations, improvements, materials, items,
source code, object code, products or data developed by StarFish
pursuant to the Services (“Deliverables”).

 


b)
Subject to the payment of all undisputed amounts owing in respect
of the Services, StarFish hereby irrevocably conveys and assigns to
ENDRA all of StarFish’s rights, title and interest in and to
all Deliverables, effective as of the date that each is created,
including all copyrights, data rights, patents (including patent
registration application and extensions), know-how, trade secrets,
trademark, service marks and any other proprietary right arising
under the laws of Canada, the United States, or any other
jurisdiction or treaty (collectively, “IP Rights”). Subject to Section
4(c), all Deliverables will be the sole and exclusive property of
ENDRA. ENDRA has the sole right to determine the treatment of any
portion of the Deliverables, including the right to keep it as a
trade secret, to file and execute patent applications on it, to use
and disclose it without prior patent applications or to follow any
other procedure that ENDRA deems appropriate. StarFish represents
and warrants that ENDRA will receive good and valid title to all
Deliverables, that all Deliverables will be, to StarFish’s
actual knowledge, free and clear of all encumbrances and liens of
any kind, and that all Deliverables are or will be the original
creation of StarFish.

 


c) To
the extent that any Deliverables contain any pre-existing StarFish
intellectual property (“Pre-Existing IP”), StarFish grants
to ENDRA a perpetual, non-exclusive, royalty-free, irrevocable,
sublicensable, transferrable, and worldwide right and license to
use, perform, display, execute, reproduce, distribute, transmit,
modify (including to create derivative works), import, make, have
made, sell, offer to sell and otherwise exploit such Pre-Existing
IP to the extent incorporated in, combined with, or otherwise
necessary for the use of the Deliverables. StarFish shall identify
in writing, and receive advance approval in writing of, the
incorporation of any such Pre-Existing IP into any Deliverables to
ENDRA. Subject only to the foregoing license, all rights, title and
interest in and to the Pre-Existing IP shall remain vested in
StarFish. StarFish represents and warrants that all Pre-Existing IP
has been lawfully obtained by StarFish and will be legitimately
transferred to ENDRA.

 


d)
StarFish shall in good faith cooperate with and assist ENDRA, at
ENDRA’s expense, to apply for and execute any documents
or otherwise take any such steps as are necessary to perfect and
obtain ENDRA’s world-wide ownership of its IP Rights in the
Deliverables as described in Sections 4(b) and 4(c). StarFish
acknowledges that all Deliverables will be ENDRA’s
Confidential Information and StarFish shall treat all Deliverables
as such under this Agreement.

 



 

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e)
StarFish hereby expressly waives, and shall ensure that its
personnel waive, any moral rights in the Deliverables, including,
without limitation, the right to the integrity of the Deliverables,
the right to be associated with the Deliverables, the right to
restrain or claim damages for any distortion, mutilation or other
modification of the Deliverables, and the right to restrain the use
or reproduction of the Deliverables in any context and in
connection with any product, service, cause or institution,
effective at the time the particular Deliverable is
created.

 



f) 

In the event that
StarFish delivers to ENDRA, as part of the Deliverables, any
compiled, StarFish proprietary software libraries, such proprietary
software libraries shall be considered Pre-Existing IP and subject
to the rights and license set forth in Section 4(c). For greater
certainty, except for the limited rights and license to use such
proprietary software libraries in conjunction with the Deliverables
as provided in Section 4(c), all rights, title and interest in and
to such StarFish software remain vested in StarFish.





 


g)
StarFish represents and warrants that the Services, Deliverables,
Pre-Existing IP will not infringe, misappropriate, or otherwise
violate any intellectual property rights of any third party to
StarFish’s actual knowledge.Except as expressly provided
herein, the Services, Deliverables, Pre-Existing IP and any
StarFish software are provided “as is” without
warranties of any kind, whether express, implied or statutory,
including but not limited to warranties of merchantability, fitness
for a particular purpose or non-infringement, all of which are
expressly excluded.


 




5.           


NON-SOLICITATION





 


a) The
parties covenant and agree that they will not, directly or
indirectly, during the Term of this Agreement and for a period of
one year following the effective date of the termination of this
Agreement,

 



i) 

be a party to or
abet any solicitation of customers, clients or suppliers of the
other party, to transfer business from the other party to it or to
any other person or entity; or





 


ii)
seek in any way to persuade or entice any employee of the other
party to leave that employ, or be a party to or abet any such
action; provided, that the foregoing shall not restrict (i) the
employment of any employee who seeks such employment of his own
accord, or (ii) the making of any general non-targeted
advertisements or solicitations for employment by any
party.


 




6.           


CONFIDENTIALITY





 


a) For
the purposes of this Agreement, “Confidential Information” means
any non-public information and data disclosed by one party (the
“disclosing party”) to the other (the “receiving
party”), including but not limited to proprietary,
developmental, technical, product, marketing, sales, operating,
business, employee, performance, cost and pricing information, as
well as the disclosing party’s know-how, methods, strategies,
processes, data, inventions, product concepts, computer programming
techniques, and all record bearing media containing or disclosing
such information and techniques which is disclosed pursuant to this
Agreement; provided that such information, if disclosed in written
form, is clearly marked as “confidential” or with a
similar legend. Confidential Information specifically includes any
samples, models or prototypes or parts thereof, the Proposal, as
well as the terms and conditions (but not the fact of the
existence) of this Agreement, and any Third Party Information.
“Third Party
Information” means any Confidential Information owned
by a third party which the disclosing party is under an obligation
to protect, and which is disclosed to the receiving party in
connection with the performance of this Agreement.

 



 

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b)
Confidential Information exchanged between the parties pursuant to
this Agreement:

 



i) 

shall not be copied
or distributed, disclosed or disseminated in any way or form by the
receiving party to anyone other than to its own employees and
contractors solely for the purpose of fulfilling such party’s
obligations under this Agreement, and who are advised as to the
confidential and proprietary nature of such Confidential
Information and the restrictions on use as specified in this
Agreement;





 


ii)
shall be treated by the receiving party with the same degree of
care to avoid disclosures to any third party as it uses to protect
its own confidential information of like importance, but no less
than a reasonable degree of care;


 


iii)
shall not be used by the receiving party for its own purposes or
for any other purpose except for the purpose of exercising its
rights and performing its obligations under this Agreement, and in
business arrangements with the disclosing party, without the
disclosing party’s prior written consent; and

 


iv)
shall remain the property of and be returned to the disclosing
party (along with all copies thereof) within thirty (30) days of
the termination of this Agreement, or earlier receipt by the
receiving party of a written request by the disclosing party
requesting the Confidential Information to be returned; provided,
however that each party may retain for its records one secure copy
of the other’s Confidential information.

 


c) None
of the obligations set out in Section (b) shall apply to any
information which the receiving party can show:

 



i) 

has become
generally known in the trade or the public through no act of the
receiving party;





 


ii) has
been disclosed in good faith to the receiving party by a third
party having legitimate possession and the right to make such
disclosures;

 


iii)
was in the legitimate possession of the receiving party, without
obligation of confidentiality, prior to disclosure by the
disclosing party; or

 


iv) was
developed independently by the receiving party without reference to
the


disclosing
party’s Confidential Information.

 


d) Each
party represents and warrants that it has the right to disclose all
Confidential Information disclosed by it under this Agreement.
Either party shall have the right to refuse to accept any
information under this Agreement, and nothing herein shall obligate
either party to disclose to the other party any particular
information; provided, however, that StarFish shall not be liable
for any inability or delay in performing the Services which results
from the failure of ENDRA to provide any information reasonably
requested by StarFish.

 


e) Each
party recognizes and acknowledges the confidential and proprietary
nature of any


Confidential
Information disclosed by the other party and acknowledges the
irreparable damage that could result to the disclosing party if it
is disclosed to a third party or used for any unauthorized purposes
without the disclosing party’s prior written consent.
Accordingly, without prejudice to any other rights and remedies
otherwise available, each receiving party agrees to the granting of
injunctive and/or other equitable relief to a disclosing party in
respect of any actual or threatened breach of this Agreement,
without the necessity of proving actual damages or posting bond or
other security.

 



 

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f) 

Subject only to
Section 6(c), a receiving party’s obligations with respect to
Confidential Information shall survive for a period of seven (7)
years from the date of disclosure of the information
notwithstanding the earlier termination or expiry of this
Agreement.






 



g) 

Subject to Section
6(i), and provided the payment conditions of Section 4(b) are
satisfied, this Section 6 shall not limit the use or publicity by
ENDRA of any Deliverables it purchases under this Agreement
following delivery thereof by StarFish.






 


i)
Neither party may issue press releases or make additional
information regarding the business relationship between the parties
publicly available unless it shall have first obtained the consent
of the other party.


 




7.           


TERM AND TERMINATION





 


a) This
Agreement shall become effective as of the date that it is executed
by the last of the parties to sign, and shall continue in effect
until the full and final completion of both party’s
obligations under this Agreement, including all statements of work
attached hereto or which may be attached hereafter (the
“Term”).

 


b)
Either party may terminate this Agreement upon not less than sixty
(60) days prior written notice to the other party, with or without
cause.

 


c) Upon
the termination or expiry of this Agreement for any reason, ENDRA
shall promptly (but in any event, within 30 days) pay to StarFish
all unpaid amounts due for any part of the Services and
Deliverables completed as of the effective date of termination or
expiry. Upon receipt of payment, StarFish shall promptly deliver to
ENDRA all full or partial Deliverables existing as of the date of
termination, and any other materials which it is obliged to deliver
in accordance with Section 4(a). In the event of early termination,
StarFish shall assist at ENDRA’s request with the transfer of
the preparation of the Deliverables and performance of the Services
to another party in order to minimize any delay caused by such
termination, and ENDRA will compensate StarFish for its reasonable
costs associated therewith.

 


d)
Sections 4, 5, 6, 7(c), 7(d), 8 and 10 shall survive the expiry or
termination of this

 


Agreement for any
reason, in accordance with their terms.


 




8.           


LIMITATION OF LIABILITY AND INDEMNITY





 


a)
StarFish’s, its officers’, shareholders’,
directors’, employees’ and contractors’ total
liability to ENDRA and to any other party for all losses, costs and
damages from any and all causes whatsoever, regardless of the form
of action, whether in contract, tort or otherwise, including
negligence and gross negligence, shall in the aggregate be limited
to the total amount paid to StarFish under this Agreement;
provided, however, that the limitations set forth in this Section
8(a) shall not apply to StarFish’s breach of any
representations or warranties under Section 4(g) or
StarFish’s failure to comply with its obligations of
confidentiality under Section 6, for which the limits shall be $2
million.

 



 

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b)
Notwithstanding any other provision of this Agreement or theory of
law, ENDRA shall defend, indemnify and hold StarFish, its officers,
shareholders, directors, employees and contractors harmless from
and against any and all liabilities, losses, costs, court costs,
damages, expenses, and reasonable legal, accounting and other
professional fees, resulting from or arising out of: (i) any breach
by ENDRA of this Agreement; (ii) any violation by ENDRA of
applicable law; or (iii) any grossly negligent acts, grossly
negligent omissions or willful misconduct by ENDRA.


 




9.           


FORCE MAJEURE





 


a)
Except for monetary payment obligations, neither party shall be
liable to the other by reason of any failure to perform in
accordance with the terms of this Agreement if such failure arises
out of causes wholly or substantially beyond the reasonable control
of the defaulting party. Such causes may include, but shall not be
limited to, unavailability of communications facilities, acts of
God or the public enemy, acts of the other party, acts of civil or
military authority, fires, strikes, power surges or the
unavailability of energy sources delay in transportation, riots or
war.


 



10. GENERAL

 


a) Each
party represents and warrants that it has full power and authority
to enter into, execute, deliver, and perform its obligations under
this Agreement and the person signing this Agreement on behalf of
each party has been properly authorized and empowered to enter into
this Agreement.

 


b) This
Agreement, including its schedules, constitutes the entire
Agreement between the parties. Except as specifically provided in
this Agreement, no change, amendment or waiver hereof shall be
valid unless it is in writing and is executed by both
parties.

 


c) Each
provision of this Agreement is intended to be severable. If any one
or more provisions, or part thereof, in the Agreement should be
ruled wholly or partly invalid or unenforceable by a court having
competent jurisdiction, then the remaining provisions of the
Agreement shall be unaffected and shall continue in full force and
effect.

 


d)
Waiver of a breach of this Agreement or any power arising upon
default under this Agreement must be in writing and signed by the
party granting the waiver. A waiver shall not be or be construed to
be a general waiver and will relate only to the particular breach
in respect of which it is made. A breach of this Agreement is not
waived by a failure to exercise, a delay in exercising, or the
partial exercise of any power.



 

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e) This
Agreement is binding on and shall enure to the benefit of the
parties, their successors and assigns.

 



f) 

The Laws of the
State of Delaware shall govern this Agreement and the parties
hereto irrevocably attorn to the exclusive jurisdiction of the
Courts of the State of Michigan and the courts of appeal
therefrom.





 


g) By
executing this Agreement, the parties acknowledge and agree that
they have reviewed these terms and conditions, have had the
opportunity to consult with legal counsel, and agree to be legally
bound hereby.

 


h) This
Agreement may be executed in one or more counterparts, each of
which shall be deemed an original, but all of which taken together
shall constitute one and the same instrument.


 

 


 


	

/s/
John Walmsley

	
 

	


/s/ Francois Michelon


	


Signed

	
 

	


Signed


	
 

	
 

	
 


	

John
Walmsley, COO

	
 

	

Francois
Michelon, CEO


	


Name, Title

	
 

	


Name, Title


	
 

	
 

	
 


	

StarFish
Product Engineering Inc.

	
 

	

ENDRA
Life Sciences, Canada, Inc.


	


Company

	
 

	


Company


	
 

	
 

	
 


	
 

	
 

	


/s/ Scott Belanger


	


Witness

	
 

	


Witness


	
 

	
 

	
 


	

1
November 2017

	
 

	

10 31
2017


	


Date (MMM DD, YYYY)

	
 

	


Date (MMM DD, YYYY)


	
 

	
 

	
 







 

 





	

 










	

 









 

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