Advertising Services Agreement
Exhibit
10.26
This
Services Agreement (“Agreement”) is entered as of June 13, 2006, (“Effective
Date”) by and between
Xxxx
Xxxxxxxxx
(“Consultant”),
an International Advertising Consulting Company, and
Trimax
Corporation
(“Client”),
a Nevada corporation (ticker symbol: TMXO.OB) with reference to the
following:
RECITALS
A. Client
desires to be assured of the services of Consultant in order to avail itself
of
Consultant’s experience, skills, knowledge, abilities and background in the
fields of corporate advertising, .
B. Client
is
therefore willing to engage Consultant upon the terms and conditions set
forth
herein, and Consultant agrees to be engaged and retained by Client upon the
terms and conditions set forth herein.
NOW
THEREFORE, in consideration of the foregoing, of the mutual promises herein
set
forth and for other good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, the parties agree as follows:
1. Engagement.
Client
hereby engages Consultant on a non-exclusive basis, and Consultant hereby
accepts the engagement to become a strategic and promotional advertising
consultant to Client and to render such advice, consultation, information
and
services to Client regarding general corporate advertising
services,:
Consultant
intends to (a) advise Client with respect to its plans and strategies for
the
company to be hosted and interviewed on various multi cultural shows; (b)
aid
Client in developing a marketing plan directed at informing the investing
public
as to the business of Client; (c) advise and assist Client with public relations
and promotion matters; At no time will Consultant provide services which
would
require Consultant to be registered and licensed with any federal or state
regulatory body or self-regulating agency; (h) include additional marketing
and
market awareness services.
2. Term.
The
term
of this Agreement (“Term”) shall commence on the date hereof and continue for a
period of five (5) months as follows: Corporate finance services will begin
immediately upon receipt of the Listing Fee and Engagement Fee, and will
continue for a period of five (5) months.
3. Compensation.
In
connection with the appointment of Consultant hereunder and as consideration
for
Consultant entering into this Agreement, Client and Consultant agree to the
following (for transfer and wiring instructions see Appendix
1):
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4. Engagement
Fee: For
the
performance of its consulting services hereunder Consultant shall receive
$30,000 US$ (“Engagement Fee”) payable by the issuance of 150,000 shares of
Client’s registered common stock.
5. Registration
Rights. For
any
restricted shares of Client’s common stock Consultant holds or will hold in the
future which have not been registered under the Securities Act of 1933, as
amended, Client hereby grants to Consultant contractual rights to register
the
shares by including the aforementioned shares if and when Client files a
registration statement (“Piggy-Back Registration”).
6. Non-Circumvention.
Client
and Consultant expressly agree that this Agreement constitutes a binding
contract. Client, intending to be legally bound, hereby irrevocably agrees
not
to circumvent, avoid, bypass, or obviate Consultant, directly or indirectly,
to
avoid payments or fees, commissions, or any other form of compensations to
Consultant in any transaction with any corporation, partnership, or individual,
revealed by either party to the other, in connection with any projects, or
currency exchanges, or any loans or collaterals, or any findings, or any
financings, or any other transactions involving products, commodities, services,
additions, renewals, extensions, rollovers, amendments, new contracts,
re-negotiations, parallel contracts or agreements or third party assignments
hereof. Therefore Client shall not contact any investors or lenders or other
individuals or entities introduced by Consultant during the term of this
Agreement without prior written consent from Consultant. If a transaction
of any
kind is consummated within twenty four (24) months of the termination of
this
Agreement whether debt or equity financing or any other transaction with
an
investor or lender or other individual or entity introduced directly or
indirectly by Consultant to Client and/or Client enters into an agreement
to
acquire or be acquired by an entity or individual introduced directly or
indirectly by Consultant to Client during the term of this Agreement, then
that
transaction shall be deemed to have been arranged by Consultant under this
Agreement and Client shall remunerate Consultant as specified in Paragraph
3.
This article survives the expiration or termination of this Agreement for
any
reason.
7. Remedy.
If
Client
breaches any term of this Agreement or violates any of his obligations under
this Agreement, e.g. any compensation or fee payments or the Non-Circumvention
clause or the Confidentiality clause or any other term, Consultant may seek
all
remedies and appropriate equitable relief allowed by law, and Consultant
shall
be entitled to a legal monetary penalty and equitable remedies equal to the
maximum fees allowed by a competent court, at law or in equity, including
all
legal and other expenses, and Consultant may also, at its option, terminate
or
suspend all performances or services remaining to be rendered by Consultant
under this Agreement without being obligated to pay back or reimburse any
compensation or fee payments previously received by Consultant under this
Agreement. Client agrees that a breach of any of the covenants contained
in this
Agreement will cause irreparable injury to Consultant, that Consultant might
not
have adequate remedy at law in respect of such breach and, as a consequence,
that each and every covenant contained in this Agreement shall be specifically
enforceable against Client, and Client hereby waives and agrees not to assert
any defenses against an action for specific performance of such covenants
except
for a defense that no event of default has occurred. Client acknowledges
that it
will be impossible to measure in money the damage to Consultant caused by
any
failure to comply with the covenants set forth in this Agreement, that each
such
covenant is material, and that in the event of any such failure, Consultant
will
not have an adequate remedy at law or in damages. Therefore, the parties
consent
to the issuance of an injunction or the enforcement of other equitable remedies
against Client at the suit of Consultant, without bond or other security,
to
compel performance of all of the terms of this Agreement, and waive the defense
of the availability of relief in damages. This article survives the expiration
or termination of this Agreement for any reason.
8. Standard
of Care. Consultant
warrants that it services shall be performed by personnel possessing competency
consistent with applicable industry standards. No other representation, express
or implied, and no warranty or guarantee are included or intended in this
Agreement, or in any report, opinion, deliverable, work product, document
or
otherwise. Furthermore, no guarantee is made as to the efficacy or value
of any
services performed or software developed. This section sets forth the only
warranties provided by Consultant concerning the services and related work
product. This warranty is made expressly in lieu of all other warranties,
express or implied, including without limitation any implied warranties of
fitness for a particular purpose, merchantability, non-infringement, title
or
otherwise. This article survives the expiration or termination of this Agreement
for any reason.
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9. Limitation
of Liability. Consultant’s
liability, including but not limited to Client’s claims of contributions and
indemnification related to third party claims arising out of services rendered
by Consultant, and for any losses, injury or damages to persons or properties
or
capitals or belongings or goods or assets or work performed arising out of
or in
connection with this Agreement and for any other claim, shall be limited
to the
lesser of (i) Twenty Five Thousand Dollars (US$25,000) or (ii) payment received
by Consultant from Client for the particular service provided giving rise
to the
claim. Notwithstanding anything to the contrary in this Agreement, Consultant
shall not be liable for any special, indirect, consequential, lost profits,
or
punitive damages. Client agrees to limit Consultant’s liability to Client and
any other third party for any damage on account of any error, omission or
negligence to a sum not to exceed the lesser of (i) Twenty Five Thousand
Dollars
(US$25,000) or (ii) the payment received by the Company for the particular
service provided giving rise to the claim. The limitation of liability set
forth
herein is for any and all matters for which Consultant may otherwise have
liability arising out of or in connection with this Agreement, whether the
claim
arises in contract, tort, statute, or otherwise. Client shall give Consultant
written notice within thirty (30) days of obtaining knowledge of the occurrence
of any claim or cause of action which Client believes that it has, or may
seek
to assert or allege, against Consultant, whether such claim is based in law
or
equity, arising under or related to this Agreement or to the transactions
contemplated hereby, or any act or omission to act by Consultant with respect
hereto. If Client fails to give such notice Consultant with regard to any
such
claim or cause of action and shall not have brought legal action for such
claim
or cause of action within said time period, Client shall be deemed to have
waived, and shall be forever barred from bringing or asserting such claim
or
cause of action in any suit, action or proceeding in any court or before
any
governmental agency or authority or any arbitrator. All notices or other
communications hereunder shall be in writing, sent by courier or the fastest
possible means, provided that recipient receives a manually signed copy and
the
transmission method is scheduled to deliver within 48 hours, and shall be
deemed
given when delivered to the principal office address or such other address
as
may be specified in a written notice in accordance with this section. Any
party
may, by notice given in accordance with this Section to the other parties,
designate another address or person or entity for receipt of notices hereunder.
This article survives the expiration or termination of this Agreement for
any
reason.
10. Indemnification.
Client
agrees to save harmless, indemnify and defend Consultant, its agents and
employees from and against any cost, loss, damage, liability, judgment and
expense whatsoever, including attorney’s fees, suffered or incurred by it by
reason of, or on account of, any misrepresentation made to it or its status
or
activities as Consultant under this Agreement. In the event any litigation
or
controversy arises out of or in connection with this Agreement between the
parties hereto, Consultant shall be entitled to recover from Client all
reasonable attorney's fees, expenses and suit costs, including those associated
within the appellate or post-judgment collections proceedings. Client further
agrees to indemnify Consultant’s officers, directors, agents, and
representatives against all losses, claims, damages, liabilities, and expenses
arising out of or based upon any untrue or alleged untrue statement of material
fact contained in any registration statement, prospectus, or preliminary
prospectus or any amendment thereof or supplement thereto or any omission
or
alleged omission of a material fact required to be stated therein or necessary
to make the statements therein not misleading, and shall reimburse Consultant
and such officers, directors, agents, and representatives for any legal or
other
expenses reasonably incurred by Consultant and such officers, directors,
agents,
and representatives in connection with the investigation or defense of such
loss, claim, damage, liability or expense. This article survives the expiration
or termination of this Agreement for any reason.
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11. Representation.
Client
hereby represents and warrants to Consultant that it is duly organized and
in
good standing under Nevada law, is current in its filings and disclosures
with
the appropriate regulatory bodies and has all requisite power and authority
to
carry on business as now conducted and as contemplated herein. Client represents
and warrants that each person signing this Agreement on behalf of Client
is duly
authorized and has legal capacity to execute and deliver this Agreement.
Client
further represents and warrants to Consultant that the execution and delivery
of
the Agreement and the performance of obligations hereunder have been duly
authorized and that the Agreement is a valid and legal agreement binding
on such
party and enforceable in accordance with its terms. Client further represents
to
Consultant that to the best knowledge of the Officers and Directors of Client,
all statements, either written or oral, made by Client to Consultant are
true
and accurate, and contain no material misstatements, or omission fact. Client
acknowledges that estimates of performance made by Client are based upon
the
best information available to Client officers at the time of said estimates
of
performance. Client further acknowledges that the information it delivers
to
Consultant will be used by Consultant in preparing materials regarding Client’s
business, including but not necessarily limited to, its financial condition,
for
dissemination to the public. Therefore, in accordance with other paragraphs
of
this Agreement, Client shall hold the Consultant harmless from any and all
errors, omissions, misstatements in connection with all information furnished
by
Client to Consultant. This article survives the expiration or termination
of
this Agreement for any reason.
12. Termination.
Either
party upon the giving of not less than ninety (90) days written notice may
terminate this Agreement, delivered to the parties at their principal business
address or addresses. Any such notice shall be deemed to be properly given
when
transmitted by way of registered mail. The ninety (90) days termination
period shall not begin until the other party has received or is deemed to
have
received the notice of termination. Anything herein to the contrary
notwithstanding, in the event that Consultant determines in good faith that
its
relationship with Client subjects Consultant or any of its employees or agents
to potential violations of any applicable law, regulation, or order, then
this
Agreement, and all obligations of Consultant hereunder, shall expire immediately
upon Consultant giving notice to Client of such determination. This Agreement
may be terminated at any time without notice by Consultant (i) for illegal
acts
or willful neglect on the part of Client or Client’s management, agents or
employees or (ii) in the event any representation, warranty, covenant, or
agreement of Client contained in this Agreement shall prove to be inaccurate
in
whole or in part. Upon termination, regardless of the reason of such
termination, Consultant shall have no obligation to pay back to Client or
reimburse Client any compensation or fee payments previously received under
this
Agreement.
13. Exclusivity
and Performance. The
services of Consultant hereunder shall not be exclusive, and Consultant and
its
agents may perform similar or different services for other persons or entities
whether or not they are competitors of Client. Consultant shall be required
to
expend only such time as is necessary to service Client in a commercially
reasonable manner. Consultant will determine the method, details, and means
of
performing the above-described services. Consultant may, at Consultant’s own
expense, use any employees or subcontractors as Consultant deems necessary
to
perform the services required of Consultant by this Agreement. Client may
not
control, direct, or supervise Consultant’s employees or subcontractors in the
performance of those services.
14. Confidentiality.
Client
and Consultant acknowledge and agree that confidential and valuable information
proprietary to either one party and obtained during its business relationship
with either one party, shall not be, directly or indirectly, disclosed without
the prior express written consent of the other party, unless and until such
information is otherwise known to the public generally or is not otherwise
secret and confidential. All such confidential information provided to either
one party by the other shall be clearly and conspicuously marked with the
word
“Confidential”. Consultant may disclose Client’s confidential information
pursuant to applicable laws or regulations, provided that Consultant may
disclose only information required for services and performances hereunder.
Furthermore Client acknowledges and agrees that the existence of this Agreement
and the Agreement itself, including single paragraphs, terms, provisions,
conditions and/or any other section of the Agreement, shall not be, directly
or
indirectly, in total or in parts, disclosed to any third party without the
prior
express written consent of Consultant.
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15. Independent
Contractor. In
its
performance hereunder, Consultant and its agents shall be an independent
contractor. Consultant shall complete the services required hereunder according
to its own means and methods of work, shall be in the exclusive charge and
control of Consultant and shall not be subject to the control or supervision
of
Client. Client acknowledges that nothing in this Agreement shall be construed
to
require Consultant to provide services to Client at any specific time, or
in any
specific place or manner, unless otherwise mutually agreed.
16. Jurisdiction,
Governing Law and Arbitration. This
Agreement shall be construed under and in accordance with the laws of the
State
of Nevada. Both parties hereby consent to the State of Nevada as the proper
jurisdiction for any such proceeding if applicable. In connection with any
Client claim against Consultant arising out of or relating to this Agreement,
Client agrees that such controversy or claim shall be submitted to arbitration,
in conformity with the Federal Arbitration Act (Section 9 U.S. Code Section
901
et seq), and shall be conducted in accordance with the Rules of the American
Arbitration Association. Any judgment rendered as a result of the arbitration
of
any Client claim or dispute shall upon being rendered by the arbitrators
be
submitted to a Court of competent jurisdiction in the State of Nevada. The
aforementioned choice of venue is intended by the parties to be mandatory
and
not permissive in nature, thereby precluding the possibility of litigation
between the parties with respect to or arising out of this Agreement in any
manner or jurisdiction other than that specified in this paragraph. Client
hereby waives any right it may have to assert the doctrine of forum non
conveniens or similar doctrine or to object to venue with respect to any
proceeding brought in accordance with this paragraph, and stipulates that
the
State and Federal courts located in the State of Delaware shall have in personam
jurisdiction and venue over Client for the purpose of litigating any dispute,
controversy, or proceeding arising out of or related to this Agreement. To
the
fullest extent permitted by law, and as separately bargained-for-consideration,
Client hereby waives any right to trial by jury in any action, suit, proceeding,
or counterclaim of any kind arising out of or relating to this
Agreement.
17. Miscellaneous.
No
waiver
of any of the provisions of this Agreement shall be deemed or shall constitute
a
waiver of any other provision and no waiver shall constitute a continuing
waiver. No waiver shall be binding unless executed in writing by the party
making the waiver. No supplement, modification, or amendment of this Agreement
shall be binding unless executed in writing by all parties. This Agreement
constitutes the entire agreement between the parties and supersedes any prior
agreements or negotiations. This Agreement may, if required, be signed in
counterparts, or by facsimile. Neither party assumes any responsibilities
or
obligation whatsoever, other than the responsibilities and obligations expressly
set forth in this Agreement or a separate written agreement between Client
and
Consultant. Neither party shall be liable under the provisions of this Agreement
for damages on account of accidents, fires, acts of God, government actions,
state of war, or any other causes beyond the control of the party whether
or not
similar to those enumerated. In the event of a conflict between this Agreement
and any future agreements executed in connection herewith, the provisions
of
this Agreement shall generally prevail. It is acknowledged and agreed by
Client
and Consultant that should any provision of this Agreement be declared or
be
determined to be illegal or invalid by final determination of any court of
competent jurisdiction, the validity of the remaining parts, terms or
provisions of this Agreement shall not be affected thereby, and the illegal
or
invalid part, term or provision shall be deemed not to be a part of this
Agreement. Time is of the essence in respect to all provisions of this Agreement
that specify a time for performance; provided, however, that the foregoing
shall
not be construed to limit or deprive a party of the benefits of any grace
or use
period allowed in this Agreement. Except as otherwise expressly provided
in this
Agreement, Client’s representations, Client’s warranties, Client’s
indemnification of Consultant, and covenants contained in this Agreement,
or in
any instrument, certificate, exhibit, or other writing intended by the parties
to be a part of this Agreement, shall survive for twenty five (25) years
after
the date of this Agreement. Each party and its counsel have participated
fully
in the review and revision of this Agreement. Any rule of construction to
the
effect that ambiguities are to be resolved against the drafting party shall
not
apply in interpreting this Agreement. The language in this Agreement shall
be
interpreted as to its fair meaning and not strictly for or against any party.
Headings used throughout this Agreement are for reference and convenience
and in
no way define by presentation, limit or describe the scope or intent of this
Agreement.
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IN
WITNESS WHEREOF, the parties hereto have entered into this Agreement on the
date
first written above.
Xxxx
Xxxxxxxxx
|
Signature:
|
/s/
Xxxx
Xxxxxxxxx
|
|
|
Name:
|
Xxxx
Xxxxxxxxx
|
Trimax
Corporation
|
Signature:
|
/s/
Xxxxx Xxxxxx
|
|
|
Per:
|
Xxxxx
Xxxxxx, / Pres / Dir
|
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