Exhibit 10.4


 


AGREEMENT


 


AGREEMENT (the “Agreement”),
dated this __ day of ________, 2017, between JWIZ, INC., a New York corporation (the “Company”), having
its principal place of business at 125-10 Queens Boulevard, Queens, New York 11415, and ASSAF RAN, an individual, with an
address at 37 Hawthorne Lane, Great Neck, New York 11023 (“Ran”).


WITNESSETH


 


WHEREAS, Ran is
the founder, sole shareholder, sole officer and sole director of the Company; and


 


WHEREAS, the Company
and Jewish Marketing Solutions, LLC (“JMS”) have executed an Agreement and Plan of Merger, dated _____ __, 2016,
pursuant to which JMS will merge with and into the Company with the Company being the surviving entity (the “Merger”);
and


 


WHEREAS, recognizing
the unique skills and abilities of Ran, the principals of JMS and the Company, respectively, the Company has agreed to pay Ran
consulting fees on the terms and conditions set forth herein.


 


NOW, THEREFORE,
in consideration of the foregoing and the mutual covenants in this Agreement, the Company and Ran agree as follows:


 


1.           Duties.


 


(a)          Immediately
upon consummation of the Merger, Ran shall become a member of the Company’s board of directors (the “Board”).
In such capacity, Ran shall advise and assist the Company’s senior executive officers with respect to their duties of managing
and operating the Company’s Business (as defined in Section 8 of this Agreement) and attend substantially all the
meetings of the Board, either in person or telephonically, and perform such other duties and responsibilities as may be assigned
to him by the Board from time to time that are consistent with his position as a member of the Board. In no event, shall Ran be
deemed an employee of the Company or be expected or required to perform any duties typically performed by employees of a company.


 


(b)          Ran
shall only be required to devote such time and attention to the Business and affairs of the Company as he, in his good faith discretion
determines is reasonably necessary to faithfully and efficiently perform his duties and responsibilities as set forth herein. The
Company acknowledges and agrees that Ran has other business interests and that he may devote such time and effort to such other
activities and businesses as he shall determine in his sole and absolute discretion; provided, however, Ran may not engage
in any activities or provide services to any other person, firm, business or endeavor that would (i) result in the violation of
any of the Restrictive Covenants (as defined in Section 8(e) of this Agreement) or (ii) violate any conduct and ethics policy
applicable to employees of the Company.


 


2.            Term.
The term of this Agreement shall commence on the date the Merger is consummated (the “Effective Date”), and
shall terminate on the fifth anniversary of the date Effective Date, unless extended or earlier terminated in accordance with the
terms of this Agreement. The date on which this Agreement terminates, would terminate or is terminated by either party is herein
referred to as the “Termination Date.” The period beginning on the Effective Date and ending on the Termination
Date is herein sometimes referred to as the “Term.”


 


3.            Compensation.
Ran shall invoice the Company monthly for the services performed and the expenses incurred in the prior month. The fee for services
will be based on the amount of time devoted to Company matters; the value of the such services (as determined by Ran in his reasonable
and sole discretion) and the performance of the Company. In no event, shall the fee for services for any calendar month exceed
$20,000. The Company shall pay the amount make of the invoice within ten (10) days of its receipt of that invoice. Ran shall be
deemed an independent contractor for income tax purposes and all payments made by the Company to Ran will be made without deduction
whether for federal, provincial, state or local income taxes, social insurance premiums, employment insurance premiums, pension
contributions, health tax, workers compensation or related or similar deductions.


 




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4.            Benefits.
Ran shall be eligible to receive awards under any incentive compensation plan adopted by the Company for the benefit of its employees,
directors and/or consultants (such as the Company’s 2016 Stock Compensation Plan), as determined in the sole and absolute
discretion of the administrator of such plan, but shall not be entitled to participate in any other retirement plans (qualified
and non-qualified), pension, insurance, health, disability or other benefit plan or program that has been or is hereafter adopted
by the Company (or in which the Company participates) for the benefit of its employees.


 


5.            Expenses.
Ran shall be promptly reimbursed against presentation of vouchers or receipts for all reasonable and necessary expenses incurred
by him in performing his duties hereunder including, but not limited to the following:


 


		·	cellular/smartphone services; and



		·	work related travel, including air fare to and from Israel and hotel accommodations.



 


6.            Indemnification.


 


(a)          General.
The Company agrees that if Ran is made a party or is threatened to be made a party to any action, suit or proceeding, whether civil,
criminal, administrative or investigative (a “Proceeding”), by reason of the fact that he is or was providing
services to the Company, is or was a director of the Company or was serving at the request of the Company as a director, officer,
member, employee or agent of another corporation or of a partnership, joint venture, trust or other enterprise, whether or not
the basis of such Proceeding is alleged action in an official capacity as a director or agent of the Company or while serving as
a director, officer, member, employee or agent, he shall be indemnified and held harmless by the Company to the fullest extent
authorized by applicable law (in accordance with the certificate of incorporation and/or bylaws of the Company), as the same exists
or may hereafter be amended, against all Expenses (as defined below) incurred or suffered in connection therewith, and such indemnification
shall continue as even if he is no longer a director or agent of the Company and shall inure to the benefit of his heirs, executors
and administrators.


 


(b)          Expenses.
As used in Section 6(a) above, the term “Expenses” shall include, without limitation, damages, losses,
judgments, liabilities, fines, penalties, excise taxes, settlements and costs, reasonable attorneys’ fees, accountants’
fees, and disbursements and costs of attachment or similar bonds, investigations, and any expenses of establishing a right to indemnification
under this Agreement.


 


(c)          Enforcement.
If a claim or request under this Agreement is not paid by the Company, or on their behalf, within thirty (30) days after a written
claim or request therefor has been received by the Company, Ran may at any time thereafter bring a legal action against the Company
to recover the unpaid amount of the claim or request and if successful in whole or in part, Ran shall be entitled to be paid also
the expenses of prosecuting such suit. The burden of proving that Ran is not entitled to indemnification for any reason shall be
upon the Company.


 


(d)          Subrogation.
In the event of payment under this Agreement, the Company shall be subrogated to the extent of such payment to all the rights of
recovery of Ran.


 


(e)          Partial
Indemnification. If Ran is entitled under any provision of this Agreement to indemnification by the Company for some or
a portion of any Expenses, but not, however, for the total amount thereof, the Company shall nevertheless indemnify Ran for the
portion of such Expenses to which Ran is entitled.


 


(f)          Advances
of Expenses. Expenses incurred by Ran in connection with any Proceeding shall be paid by the Company in advance upon request
of Ran that the Company pay such Expenses; provided, however, if it is determined that Ran was not entitled to indemnification
hereunder he shall promptly reimburse the Company for any expenses advanced to or on his behalf.


 


(g)          Notice
of Claim. Ran shall immediately upon becoming aware of same give to the Company notice of any claim made against him for
which indemnity will or could be sought under this Agreement. In addition, Ran shall give the Company such information and cooperation
as it may reasonably require and as shall be within Ran’s power and at such times and places as are convenient for Ran.


 




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(h)          Defense
of Claim. With respect to any Proceeding as to which Ran notifies the Company of the commencement thereof: (i) the Company
will be entitled to participate therein at its own expense; and (ii) except as otherwise provided below, to the extent that it
may wish, the Company jointly with any other indemnifying party similarly notified will be entitled to assume the defense thereof,
with counsel reasonably satisfactory to Ran. The Company shall not be entitled to assume the defense of any action, suit or proceeding
brought by or on behalf of the Company or as to which Ran shall have reasonably concluded that there may be a conflict of interest
between the Company and Ran in the conduct of the defense of such action. The Company shall not be liable to indemnify Ran under
this Agreement for any amounts paid in settlement of any action or claim effected without its written consent. The Company shall
not settle any action or claim in any manner which would impose any penalty or limitation on Ran without Ran’s written consent.
Neither the Company nor Ran shall unreasonably withhold or delay their consent to any proposed settlement.


 


(i)          Non-exclusivity.
The right to indemnification and the payment of expenses incurred in defending a Proceeding in advance of its final disposition
conferred in this Section 6 shall not be exclusive of any other right which Ran may have or hereafter may acquire under
any statute, provision of the certificate of incorporation, by laws, or other governing documents of the Company, agreement, vote
of stockholders, members or disinterested directors or otherwise.


 


(j)          Directors
and Officers Liability Policy. The Company agrees to use commercially reasonable efforts to obtain and maintain directors
and officers liability insurance covering Ran in such amount and subject to such allowances, deductions, exclusions, reserves and
other limitations as the Company, in its sole and absolute discretion, determines.


 


7.             Company
Property. All confidential and proprietary information furnished to Ran by the Company or developed by Ran for or on behalf
of the Company or at the Company’s direction or for the Company’s use or otherwise in connection with Ran’s obligations
to the Company hereunder, are and shall remain the sole and confidential property of the Company; if the Company requests the return
of such materials at any time during or at or after the termination of this Agreement, Ran shall immediately deliver the same to
the Company.


 


8.            Covenant
Not to Compete.


 


(a) Covenants Against
Competition. Ran acknowledges that, as of the execution of this Agreement (i) the Company is engaged in providing
online and digital marketing solutions (the “Business”); (ii) the Company’s Business is primarily
conducted currently in New York City, Nassau, Suffolk and Westchester counties in New York State, northern New Jersey, Miami and
Boca Raton, Florida, Los Angeles, California, Minneapolis Minnesota and Rochester, New York and has definite plans to expand to
other markets throughout the United States, as well as to Europe, Latin America and Asia Pacific; (iii) his relationship
with the Company will give him access to confidential information concerning the Company; and (iv) the agreements and covenants
contained in this Agreement are essential to protect the Business and goodwill of the Company. Accordingly, Ran covenants and agrees
as follows:


 


(i)   Without
the prior written consent of the Board, Ran shall not, except in his capacity as a member of the Board, during the Restricted Period
(as defined below) within the Restricted Area (as defined below) (A) engage or participate in and venture, whether or not
for profit, that conducts activities similar to the Business; (B) enter the employ of, or render any services (whether or
not for a fee or other compensation) to, any person engaged in activities similar to the Business; or (C) acquire an equity
interest in any such person; provided, that the foregoing restrictions shall not apply if this Agreement is terminated by the Company
prior to the Termination Date; provided, however, that during the Restricted Period Ran may own, directly or indirectly,
solely as a passive investment, up to five percent (5%) of the issued and outstanding securities of any company traded on any national
securities exchange or on the National Association of Securities Dealers Automated Quotation System.


 


(ii)  As
used herein: (A) “Restricted Period” shall mean the period commencing on the Effective Date and ending
on the second anniversary of the Termination Date; and (B) “Restricted Area” shall mean any place within
a 75-mile radius of any office maintained by the Company or any other location in which the Company is then actively considering
conducting Business, at the time.


 




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(b)          Confidential
Information; Personal Relationships. Ran acknowledges that the Company has a legitimate and continuing proprietary interest
in the protection of its confidential information and has invested substantial sums and will continue to invest substantial sums
to develop, maintain and protect confidential information. Ran agrees that, during and after the Restricted Period, without the
prior written consent of the Board, he shall keep secret and retain in strictest confidence, and shall not knowingly use for the
benefit of himself or others all confidential matters relating to the Company’s Business including, without limitation, operational
methods, marketing or development plans or strategies, business acquisition plans, joint venture proposals or plans, and new personnel
acquisition plans, learned by him heretofore or hereafter (such information shall be referred to herein collectively as “Confidential
Information”); provided, that nothing in this Agreement shall prohibit Ran from disclosing or using any Confidential
Information (i) in the performance of his duties hereunder, (ii) as required by applicable law, (iii) in connection
with the enforcement of his rights under this Agreement or any other agreement with the Company, or (iv) in connection with
the defense or settlement of any claim, suit or action brought or threatened against Ran by or in the right of the Company. Notwithstanding
any provision contained herein to the contrary, the term Confidential Information shall not be deemed to include any general knowledge,
skills or experience acquired by Ran or any knowledge or information known or available to the public in general. Moreover, Ran
shall be permitted to retain copies of, or have access to, all such Confidential Information relating to any disagreement, dispute
or litigation (pending or threatened) involving Ran.


 


(c)          Employees
of the Company and its Affiliates. During the Restricted Period, without the prior written consent of the Board, Ran shall
not, directly or indirectly, hire or solicit, or cause others to hire or solicit, for employment by any person other than the Company
or any affiliate or successor thereof, any employee of, or person employed within the two years preceding his hiring or solicitation
of such person by, the Company and its affiliates or successors or encourage any such employee to leave his employment. For this
purpose, any person whose employment has been terminated involuntarily by the Company shall be excluded from those persons protected
by this Section for the benefit of the Company.


 


(d)          Business
Relationships. During the Restricted Period, Ran shall not, directly or indirectly, request or advise a person that has
a business relationship with the Company to curtail, alter or cancel such person’s business relationship with the Company.


 


(e)          Rights
and Remedies Upon Breach. If Ran breaches, threatens to commit a breach of, any of the provisions contained in this Section
8 (the “Restrictive Covenants”), the Company shall have the following rights and remedies, each of which
rights and remedies shall be independent of the others and severally enforceable, and each of which is in addition to, and not
in lieu of, any other rights and remedies available to the Company under law or in equity:


 


(i)   Specific
Performance. The right and remedy to have the Restrictive Covenants specifically enforced by any court of competent jurisdiction,
it being agreed that any breach or threatened breach of the Restrictive Covenants would cause irreparable injury to the Company
and that money damages would not provide an adequate remedy to the Company.


 


(i)   Accounting.
The right and remedy to require Ran to account for and pay over to the Company all compensation, profits, monies, accruals, increments
or other benefits derived or received by him as the result of any action constituting a breach of Restrictive Covenants.


 


(f)          Severability
of Covenants. Ran acknowledges and agrees that the Restrictive Covenants are reasonable and valid in duration and geographical
scope and in all other respects. If any court determines that any of the Restrictive Covenants, or any part thereof, is invalid
or unenforceable, the remainder of the Restrictive Covenants shall not thereby be affected and shall be given full effect without
regard to the invalid portions. The provisions set forth in this Section 8 above shall be in addition to any other provisions
of the business conduct and ethics policy applicable to employees of the Company and its subsidiaries during the Term.


 




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(g)          Saving
Clause. If the period or the area specified in Section 8(a) above should be adjudged unreasonable in any proceeding,
then the period shall be reduced by such number of months or the area shall be reduced by the elimination of such portion thereof
or both so that such restrictions may be enforced in such area and for such time as is adjudged to be reasonable. If Ran violates
any of the restrictions contained in the Section 8(a) above, the restrictive period shall not run in favor of Ran from the
time of the commencement of any such violation until such time as such violation shall be cured by Ran to the satisfaction of Company.


 


9.            Ran’s
Representation and Warranties. Ran represents and warrants that he has the full right and authority to enter into this
Agreement and fully perform his obligations hereunder, including, but not limited to, the Restrictive Covenants, that he is not
subject to any non-competition agreement other than with the Company, and that his past, present and anticipated future activities
have not and will not infringe on the proprietary rights of others. Ran further represents and warrants that he is not obligated
under any contract (including, but not limited to, licenses, covenants or commitments of any nature) or other agreement or subject
to any judgment, decree or order of any court or administrative agency which would conflict with his obligation to use his best
efforts to perform his duties hereunder or which would conflict with the Company’s Business and operations as presently conducted
or proposed to be conducted. Neither the execution nor delivery of this Agreement, nor the carrying on of the Company’s Business
as officer and employee by Ran will conflict with or result in a breach of the terms, conditions or provisions of or constitute
a default under any contract, covenant or instrument to which he is currently a party.


 


10.          Miscellaneous.


 


(a)          Integration;
Amendment. This Agreement constitutes the entire agreement between the parties hereto with respect to the matters set forth
herein and supersedes and renders of no force and effect all prior understandings and agreements between the parties with respect
to the matters set forth herein. No amendments or additions to this Agreement shall be binding unless in writing and signed by
both parties.


 


(b)          Severability.
If any part of this Agreement is contrary to, prohibited by, or deemed invalid under applicable law or regulations, such provision
shall be inapplicable and deemed omitted to the extent so contrary, prohibited, or invalid, but the remainder of this Agreement
shall not be invalid and shall be given full force and effect so far as possible.


 


(c)          Waivers.
The failure or delay of any party at any time to require performance by the other party of any provision of this Agreement, even
if known, shall not affect the right of such party to require performance of that provision or to exercise any right, power, or
remedy hereunder, and any waiver by any party of any breach of any provision of this Agreement shall not be construed as a waiver
of any continuing or succeeding breach of such provision, a waiver of the provision itself, or a waiver of any right, power, or
remedy under this Agreement. No notice to or demand on any party in any case shall, of itself, entitle such party to other or further
notice or demand in similar or other circumstances.


 


(d)          Power
and Authority.  The Company represents and warrants to Ran that it has the requisite corporate power to enter into this
Agreement and perform the terms hereof; that the execution, delivery and performance of this Agreement by it has been duly authorized
by all appropriate corporate action; and that this Agreement represents the valid and legally binding obligation of the Company
and is enforceable against it in accordance with its terms.


 


(e)          Burden
and Benefit; Survival. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective
heirs, executors, personal and legal representatives, successors and assigns.


 


(f)          Governing
Law; Headings. This Agreement and its construction, performance, and enforceability shall be governed by, and construed
in accordance with, the laws of the State of New York. Headings and titles herein are included solely for convenience and shall
not affect, or be used in connection with, the interpretation of this Agreement.


 




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(g)          Arbitration;
Remedies. Any dispute or controversy arising under this Agreement (other than disputes arising under Section
8) shall be arbitrated and settled pursuant to the National Rules for the Resolution of Employment Disputes of the American
Arbitration Association which are then in effect in a proceeding held in New York, New York. This provision shall also apply to
any and all claims that may be brought under any federal or state anti-discrimination or employment statute, rule or regulation,
including, but not limited to, claims under: the National Labor Relations Act; Title VII of the Civil Rights Act; Sections 1981
through 1988 of Title 42 of the United States Code; the Employee Retirement Income Security Act; the Immigration Reform and Control
Act; the Americans With Disabilities Act; the Age Discrimination in Employment Act; the Fair Labor Standards Act; the Occupational
Safety and Health Act; the Family and Medical Leave Act; and the Equal Pay Act. The decision of the arbitrator and award, if any,
is final and binding on the parties and the judgment may be entered in any court having jurisdiction thereof. The parties will
agree upon an arbitrator from the list of labor arbitrators supplied by the American Arbitration Association. The parties understand
and agree, however, that disputes arising under Section 8 of this Agreement may only be brought in a court of law or equity
without submission to arbitration.


 


(h)          Jurisdiction.
Except as otherwise provided for herein, each of the parties (a) submits to the exclusive jurisdiction of any state court sitting
in New York, New York or federal court sitting in New York County in any action or proceeding arising out of or relating to this
Agreement, (b) agrees that all claims in respect of the action or proceeding may be heard and determined in any such court, (c)
agrees not to bring any action or proceeding arising out of or relating to this Agreement in any other court and (d) waives any
right such party may have to a trial by jury with respect to any action or proceeding arising out of or relating to this Agreement.
Each of the parties waives any defense of inconvenient forum to the maintenance of any action or proceeding so brought and waives
any bond, surety or other security that might be required of any other party with respect thereto. Any party may make service on
another party by sending or delivering a copy of the process to the party to be served at the address and in the manner provided
for giving of notices in Section 10(i). Nothing in this Section 10(h), however, shall affect the right of any party
to serve legal process in any other manner permitted by law.


 


(i)          Notices.
All notices called for under this Agreement shall be in writing and shall be deemed given upon receipt if delivered personally
or by confirmed facsimile transmission and followed promptly by mail, or mailed by registered or certified mail (return receipt
requested), postage prepaid, to the parties at their respective addresses (or at such other address for a party as shall be specified
by like notice; provided that notices of a change of address shall be effective only upon receipt thereof) as set forth in the
preamble to this Agreement or to any other address or addressee as any party entitled to receive notice under this Agreement shall
designate, from time to time, to others in the manner provided in this Section 1o(i) for the service of notices. Any notice
delivered to the party hereto to whom it is addressed shall be deemed to have been given and received on the day it was received;
provided, however, that if such day is not a business day then the notice shall be deemed to have been given and received on
the business day next following such day. Any notice sent by facsimile transmission shall be deemed to have been given and received
on the business day next following the day of transmission.


 


(j)          Number
of Days.  In computing the number of days for purposes of this Agreement, all days shall be counted, including Saturdays,
Sundays and holidays; provided, however, that if the final day of any period falls on a Saturday, Sunday or holiday on which
federal banks are or may elect to be closed, then the final day shall be deemed to be the next day which is not a Saturday, Sunday
or such holiday.


 




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IN WITNESS WHEREOF,
the parties have duly executed this Agreement as of the date first above written.


 


	 	JWIZ, INC.,
	 	 
	 	By:	
	 	 	AVI SHEFI,
	 	 	President
	 	 
	 	 
	 	ASSAF RAN


  




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