CONSULTING
AGREEMENT


 


EFFECTIVE
DATE: January 1, 2010


 


This
Consulting Agreement (this “Agreement”) is made by and between CNS
Response, Inc., a Delaware corporation (“Company”), and Henry T. Harbin, an individual (“Consultant”).


 


Recitals


 


Company
and Consultant desire that Consultant, in accordance with the terms and conditions set forth in this Agreement, provide Company
with consulting services to help Company commercialize its products.


 


Agreement


 


In
consideration of the mutual covenants and agreements contained herein, the receipt and sufficiency of which are hereby expressly
acknowledged, the parties, intending to be legally bound, hereby agree as follows:


 





1.             Engagement
of Services.   Company may periodically issue project assignments to Consultant in the form attached to this Agreement
as Exhibit A (each, a “Project Assignment”). Subject to the terms of this Agreement, Consultant will,
to the best of its ability, render the services set forth in each Project Assignment accepted by Consultant (each, a “Project”).
Consultant will perform the services necessary to complete the Projects in a timely and professional manner. Company will make
its facilities and equipment available to Consultant when necessary.


 


2.             Compensation
and Expenses. Company will compensate Consultant as set forth in each Project Assignment for services rendered pursuant to
this Agreement. Company will be responsible for all expenses incurred in performing services pursuant to this Agreement. Notwithstanding
the foregoing, the Company agrees to grant the Consultant a non-qualified stock option to purchase 400,000 shares of the Company’s
common stock upon the approval by the Company’s Board of Directors of an amendment to the Company’s 2006 Stock Incentive
Plan to increase the authorized number of shares available for award thereunder. The options shall vest in equal monthly installments
over a thirty six month period commencing March 3, 2010.


 


3.             Independent Contractor Relationship.
Consultant’s relationship with Company is that of an independent contractor, and nothing in this Agreement is intended
to, or should be construed to create a partnership, agency, joint venture or employment relationship. Consultant is not
authorized to make any representation, contract or commitment on behalf of Company unless specifically requested or
authorized in writing to do so by a Company officer.


 


4.             
Indemnification. Consultant agrees to indemnify, defend and hold harmless Company from and against any and all damages, costs,
claims, expenses or other liability (including reasonable attorneys’ fees) arising from or relating to the breach or alleged
breach by Consultant of the terms and conditions of this Agreement.


 


5.            
Confidential Information. Consultant agrees to hold Company’s Confidential Information in strict confidence and not to
disclose such Confidential Information to any third parties unless authorized to do so by the Company. For purposes of this Agreement,
“Confidential Information” means any and all Work Product created as a result of Consultant’s services to the
Company as well as all technical and non-technical information, know-how and data related to the current, future and proposed business,
technology, products and services of Company, and its licensors, suppliers and customers, which is disclosed to Consultant or to
which Consultant otherwise gains access as a result of performing under this Agreement.


  






    	 



    	 



    



 


Consultant’s
obligations set forth in this Section will not apply with respect to any portion of the Confidential Information that Consultant
can document by competent proof: (a) was in the public domain at the time it was communicated to Consultant by Company; (b) entered
the public domain through no fault of Consultant, subsequent to the time it was communicated to Consultant by Company; (c) was
in Consultant’s possession free of any obligation of confidentiality at the time it was communicated to Consultant by Company;
or (d) was rightfully communicated to Consultant free of any obligation of confidentiality subsequent to the time it was communicated
to Consultant by the Company. Consultant may disclose Company’s Confidential Information in response to a valid order by
a court or other governmental body, and as otherwise required by law; provided, that, if legally permitted to do so, Consultant
provides Company with advance notice of such disclosure.


 


All
Confidential Information furnished to Consultant by Company is the sole and exclusive property of Company or its licensors, suppliers
or customers. Upon the earlier of Company’s request or the termination of this Agreement, all Confidential Information furnished
to Consultant in tangible form, and all copies thereof will be, at Company’s option, either promptly returned to Company
or destroyed by Consultant (with Consultant providing written certification of such destruction).


 


6.
             No Conflict of Interest. During the term of this
Agreement, Consultant will not accept work, enter into a contract, or accept an obligation from any third party, that is inconsistent
or incompatible with Consultant’s obligations, or the scope of services rendered for Company, under this Agreement. Consultant
warrants that he is not party to any existing contract or duty that is inconsistent with the terms of this Agreement. 







 


7.
             Term and Termination.


  


7.1
        Term. The term of this Agreement will commence on January 1, 2010 and continue
until December 31, 2010, unless earlier terminated as provided in this Agreement. This Agreement will automatically renew for
two one-year terms on each of January 1, 2011 and 2012 unless a party gives the other party written notice of its intent to terminate
the agreement on or before December 1, 2010 or 2011, as applicable.


 


7.2
        Termination. Either party may terminate this Agreement and/or any Project
Assignment at any time, with or without cause, by providing the other party with thirty (30) days written notice of its intent
to terminate. Company may also terminate this Agreement or any Project Assignment immediately with notice for Consultant’s
breach of Sections 5 (Confidential Information) or 8 (Noninterference with Business), which breach remains uncured ten (10) business
days after Company notifies Consultant of such breach.


 


7.3
        Survival. Upon expiration or termination of this Agreement for any reason,
the terms contained in the following Sections will survive: Sections 3 (Independent Contractor Relationship), 4 (Indemnification),
5 (Confidential Information), 7.3 (Survival), 8 (Noninterference with Business), 10 (Work for Hire) and 11 (General).


 






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8.            
Noninterference with Business. During the term of this Agreement, and for a period of one (1) year thereafter (the “Noninterference
Period”), Consultant agrees not to interfere with the business of Company in any manner. By way of example and not of limitation,
Consultant agrees, during the Noninterference Period, not to solicit or induce any employee or independent contractor to terminate
or breach an employment, contractual or other relationship with Company. Consultant shall give Company prior notice before engaging
in any potential employment discussions with any competitor of Company.


 


9.             Limited
License. To the extent Company makes any of its proprietary materials or products available to Consultant in connection with
any Project Assignment, Company grants to Consultant, during the term of such Project, a limited, non-transferable license to use
such materials or products solely as necessary to enable Consultant to perform its obligations under this Agreement and any applicable
Project Assignment.


 


10.          Work
for Hire. Consultant agrees that any and all software, designs, processes, improvements, techniques, formulas, procedures,
ideas, innovations, inventions (whether patentable or not), programs, programming code, systems, work notes, drafts, specifications,
know-how, data, documentation, illustrations, databases, reports, literary properties, original works of authorship, derivative
works and other work product conceived, reduced to practice, developed, written, or contributed by Consultant, either individually
or in collaboration with others, in connection with performing the services (collectively “Work Product”) are the sole
property of Company. The Work Product shall be deemed a “work-made-for-hire” for Company as that term is defined in
Section 101 of the U.S. Copyright Code. To the extent that the Work Product cannot be deemed a “work-made-for-hire”
Consultant hereby makes all assignments necessary to accomplish the foregoing ownership. Consultant shall execute such documents
and do such other acts and deeds as may be reasonably required by Company or its assignees or licensees to further evidence or
effectuate Company’s rights hereunder. If Consultant fails to take such action, Company may execute such documents as Consultant’s
attorney in fact, which appointment will be irrevocable and coupled with an interest.


 


11.          General.
Consultant may not assign this Agreement, or assign any rights or delegate any obligations under this Agreement, without obtaining
Company’s prior written consent. Any attempted or purported assignment or delegation by Consultant in violation of this paragraph
will be null and void. Subject to the foregoing, this Agreement will be binding upon, and will inure to the benefit of, the parties
and their respective successors and permitted assigns. Any notice required or permitted by this Agreement will be in writing and
will be delivered as follows with notice deemed given as indicated: (i) by personal delivery when delivered personally; (ii) by
overnight courier upon written verification of receipt; (iii) by telecopy or facsimile transmission upon acknowledgment of receipt
of electronic transmission; or (iv) by certified or registered mail, return receipt requested, upon verification of receipt. Notice
will be sent to the addresses set forth below or such other address as either party may specify to the other party in writing in
accordance with the foregoing.


  


This
Agreement will be governed by and construed in accordance with the laws of the United States and the State of California, without
giving effect to any choice of law principles that would require the application of the laws of a different state. Should any
provisions of this Agreement be held by a court of law to be illegal, invalid or unenforceable, the legality, validity and enforceability
of the remaining provisions of this Agreement will not be affected or impaired thereby. The waiver by Company of a breach of any
provision of this Agreement by Consultant will not operate or be construed as a waiver of any other or subsequent breach by Consultant.
A breach of any of the promises or agreements contained in this Agreement may result in irreparable and continuing damage to Company
for which there may be no adequate remedy at law, and Company is therefore entitled to seek injunctive relief as well as such
other and further relief as may be appropriate.


 






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This
Agreement, together with any applicable Project Assignments, constitutes the complete and exclusive agreement between the parties
relating to this subject matter and supersedes all prior or contemporaneous oral or written agreements concerning such subject
matter. The terms of this Agreement will govern all services undertaken by Consultant for Company; provided, however,
that in the event of any conflict between the terms of this Agreement and any Project Assignment, the terms of the applicable
Project Assignment will control. This Agreement may only be changed by mutual agreement of authorized representatives of the parties
in writing.


 


The
parties hereto have caused this Agreement to be executed by their duly authorized representatives as of the Effective Date set
forth above.


 


	Company	 	Consultant
	CNS Response, Inc.	 	 
	 	 	 
	Signature:
    ____________________________	 	Signature:
    _____________________________
	 	 	 
	 	 	Printed
    Name: __________________________
	 	 	 
	Date:
    ________________________________	 	Date:
    _________________________________
	 	 	 
	Address: 
    85 Enterprise, suite 410	 	 
	  Aliso
    Viejo, CA 92656	 	Address:
    ______________________________
	 	 	 
	 	 	_____________________________________


 



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Exhibit
A


 


PROJECT ASSIGNMENT*


 


Dated:
January 1, 2010




 





Description of Project
Requirements:







 


Services:
Consulting projects requested by the Company.


 


Compensation:
In consideration for services rendered hereunder,


 


		1.	The
                                                                                                                        Company
                                                                                                                        will pay
                                                                                                                        Consultant
                                                                                                                        on aggregate
                                                                                                                        of $36,000
                                                                                                                        for the
                                                                                                                        period
                                                                                                                        between
                                                                                                                        January
                                                                                                                        1, 2010
                                                                                                                        and December
                                                                                                                        31, 2010
                                                                                                                        as follows:
                                                                                                                        $3,000
                                                                                                                        will be
                                                                                                                        accrued
                                                                                                                        each month
                                                                                                                        for payment
                                                                                                                        to Consultant
                                                                                                                        until
                                                                                                                        the completion
                                                                                                                        of the
                                                                                                                        Company’s
                                                                                                                        planned
                                                                                                                        private
                                                                                                                        placement
                                                                                                                        financing.
                                                                                                                        Within
                                                                                                                        one month
                                                                                                                        of the
                                                                                                                        completion
                                                                                                                        of the
                                                                                                                        Company’s
                                                                                                                        financing,
                                                                                                                        the accrued
                                                                                                                        balance
                                                                                                                        will be
                                                                                                                        paid to
                                                                                                                        Consultant
                                                                                                                        and thereafter,
                                                                                                                        $3,000
                                                                                                                        will be
                                                                                                                        paid each
                                                                                                                        month
                                                                                                                        to Consultant
                                                                                                                        through
                                                                                                                        December
                                                                                                                        31, 2010.



 


The
parties have executed this Project Assignment as of the dale first written above. 


 





	Company:	 	Consultant:
	CNS Response, Inc.	 	 
	 	 	 
	Signature:
    ____________________________	 	Signature:
    _____________________________
	 	 	 
	 	 	Printed
    Name: __________________________
	 	 	 
	Date:
    ________________________________	 	Date:
    _________________________________






 





 






*
This Project Assignment is governed by the terms of a Consulting Agreement in effect between Company and Consultant. In
the event that any term continued in this Project Assignment is inconsistent with any term set forth in such Consulting Agreement,
the terms of this Project Assignment shall govern, but only with respect to the services set forth in this Project Assignment.
All capitalized terms used but not defined in this Project Assignment will have the meanings given to such terms in the Consulting
Agreement.


 






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