CONSULTING AGREEMENT
CONSULTING
AGREEMENT made this ____ day of January, 2011, by and between Xxxxxxx Xxxxxxxx
(“Consultant”) and Energy Composites Corporation (“Company”).
Recitals
Company desires to obtain the advice
and assistance of Consultant in the areas of accounting and finance and other
related areas and Consultant desires to provide such services to Company, all
subject to the terms and conditions of this Agreement.
NOW,
THEREFORE, in consideration of the mutual promises of the parties and for other
good and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, Consultant and Company agree as follows:
1. Services. Consultant shall
during the term of this Agreement provide accounting, financial and business
services to Company (the “Services”). The Services shall be provided
as and when requested by the President of Company or his designee and Consultant
shall in the performance of the Services act in, and use its best efforts to
protect and promote, the interests of Company. Consultant shall
provide such reports and other information regarding the provision of the
Services as Company may request from time to time. Consultant shall
provide all labor, tools, equipment and materials necessary for the performance
and completion of the Services.
2. Payment
for Services. Company shall pay
Consultant for the Services at the rate of Sixty Dollars ($60.00) per hour for
each hour devoted to the performance of the Services (the
“Fees”). All Fees shall be paid within fifteen (15) days of receipt
by Company of Consultant’s invoice. Consultant shall submit invoices
for Services rendered on a biweekly basis and all invoices shall include a
narrative description of the specific Services performed by date and the time
spent on the task described.
3. Expenses. Company shall
reimburse Consultant for all reasonable and necessary out-of-pocket expenses
actually incurred by Consultant in performance of the
Services. Consultant shall be solely responsible for any and all
income, sales and other taxes related to Fees earned or the Services provided
hereunder.
4. Term of
Agreement. The term of this
Agreement shall commence on the date hereof and continue until terminated by
either party upon written notice to the other. The obligations
arising under Sections 5 and 6 shall survive the termination of this
Agreement.
5. Representation
and Warranties. Consultant hereby
represents and warrants that: (i) all Services shall be performed with due care,
skill and diligence and in accordance with all applicable laws, with the degree
of skill and judgment reasonably and customarily exercised by professionals
performing services of a similar nature; and (ii) this Agreement and the
performance by Consultant of Consultant’s obligations hereunder shall not
constitute a breach of or otherwise violate any law or any agreement,
arrangement or relationship between Consultant and any third
party. The representations and warranties set forth herein shall
survive the termination of this Agreement.
6. Confidentiality. Consultant
acknowledges and agrees that in connection with the performance of the services
hereunder Consultant may be exposed or have access to, become familiar with or
assist in the development of confidential information related to Company and
other information related to the business of Company or its customers or vendors
which is considered confidential by Company or its customers or vendors and not
otherwise available to the general public, including but not limited to trade
secrets, customer or vendor orders, designs, pricing, projects, lists and other
information, engineering, production and manufacturing designs, equipment,
techniques, methods, processes and specifications, and sales, marketing,
accounting, administrative, operational and financial plans, analysis, surveys,
forecasts, data, lists, systems, policies, records and other information
(“Confidential Information”). Consultant understands and acknowledges
that the misappropriation or disclosure of Confidential Information to any third
party during or after termination of this Agreement may cause irreparable harm
to Company and its customers. Consultant shall not, during or at any
time after the termination of this Agreement, disclose to any person any
Confidential Information. Consultant shall also use its best efforts
to prevent the unauthorized disclosure of Confidential
Information. Consultant will not misappropriate or threaten to
misappropriate any Confidential Information through disclosure or use, nor will
the Consultant utilize Confidential Information for direct or indirect personal
profit or gain. All files, records, documents, and other materials
comprising, containing or relating to Confidential Information, whether prepared
or created by Consultant or in or subject to Consultant’s control or possession,
are and shall remain the exclusive property of Company. Consultant
shall upon request and as directed by Company either destroy (and provide a
certification to Company of such destruction) or deliver to Company all
Confidential Information without retaining copies. Consultant, if and
when requested by Company, shall execute and deliver such documents and take
such other action as may be necessary to effectuate the intent of this
paragraph. Consultant acknowledges and agrees that this Agreement may
be enforced by Company through injunctive relief, damages and/or any other
remedy allowed by law.
7. Notices. Any notice
required or permitted by this Agreement shall be written and delivered
personally or by email, facsimile, commercial courier or mail, certified mail,
postage prepaid, to:
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Company:
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Energy
Composites Corporation
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Attn:
Xxxxx X. Xxxxx
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0000
Xxxxxxxx Xxxxx
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Xxxxxxxxx
Xxxxxx, XX 00000
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Facsimile: 000-000-0000
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Email:
xxxxx.xxxxx@xxxxxxxxxxxxxxxxxxxx.xxx
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Consultant:
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Xxxxxxx
Xxxxxxxx
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X00
X000 Xxxxxxxx Xxxxxx
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Xxxxxxxxx,
XX 00000
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Facsimile:
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Email:
x_xxxxxxxx@xxxxxxx.xxx
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8. Independent
Contractor. In connection
with this Agreement, each party is an independent contractor and shall not have
any authority to bind or otherwise obligate the other. Nothing herein
shall be deemed or construed to create an employment, joint venture, partnership
or agency relationship between the parties for any purpose. As an
independent contractor, the mode, manner, method and means used by Consultant in
the performance of Services shall be of Consultant’s selection and under the
sole control and direction of Consultant. Consultant’s daily schedule and hours
worked under this Agreement on any given day shall generally be subject to
Consultant’s discretion. Consultant agrees to treat all Fees as
payments received by an independent contractor for all tax purposes and to pay
any and all taxes payable in connection with Consultant’s engagement hereunder,
including, without limitation, all applicable income and self employment taxes.
Consultant shall indemnify and hold harmless Company from direct liability for
any and all federal, state and local taxes or assessments of any kind arising
out of any payment made by Company to Consultant hereunder. Consultant shall not
by reason of the Services provided hereunder be entitled to any benefits
provided by Company to any of its employees, including, without limitation, any
retirement plan, insurance program, medical benefits plan or any other fringe
benefit program sponsored and maintained by Company for its
employees.
9. Assignment. Consultant shall
not assign Consultant’s rights, duties or obligations under this Agreement, in
whole or in part, without the prior written consent of Company.
10. Entire
Agreement. This Agreement
contains all agreements, representations, and understandings of the parties with
respect to the subject matter hereof. This Agreement may be modified
only upon the written agreement of both parties.
11. Governing
Law. This
Agreement shall be governed by and construed in accordance with the applicable
internal rules and laws of the State of Wisconsin, notwithstanding any choice of
law rules which may direct the application of the laws of another
jurisdiction.
12. Counterparts. This Agreement
may be executed in one or more counterparts, each of which shall be deemed an
original, but all of which together shall constitute one and the same
instrument.
[SIGNATURE
PAGE FOLLOWS]
IN
WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed
and delivered as of the date first above written.
| XXXXXXX XXXXXXXX | |||
| ENERGY COMPOSITES CORPORATION | |||
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By:
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| Xxxxx X. Xxxxx | |||
| President | |||
