Exhibit 10.1
CONSULTING AGREEMENT
THIS AGREEMENT is entered into as of August 24, 2005 by Linkwell Corp.,
organized and existing under the laws of Florida State ("Linkwell or Company")
and China Direct Investments, Inc. existing under the laws of Florida State
("CDI or Consultant"),
WITNESSETH:
In consideration of the premises and mutual covenants hereinafter contained, the
parties hereto agree as follows:
1. THE SERVICES
Consultant will provide Company consulting services in capital markets
including, but not limited to,
a. Screening candidates for merger and acquisition
b. Providing due diligence on candidates for merger and acquisition
c. Providing translation for both English and Chinese documents
d. Providing all necessary assistance in accounting, auditing and legal services
e. Providing general business consulting services
f. Providing marketing plan
2. WORK FOR HIRE
It is the intention of the parties hereto that all rights, including without
limitation copyright in any reports, surveys, marketing promotional and
collateral materials prepared by the Consultant pursuant to the terms of this
Agreement, or otherwise for Company (hereinafter "the Work") vest in Company.
The parties expressly acknowledge that the Work was specially ordered or
commissioned by Company, and further agree that it shall be considered a "Work
Made for Hire" within the meaning of the copyright laws of the United States and
that Company is entitled as author to the copyright and all other rights
therein, throughout the world, including, but not limited to, the right to make
such changes therein and such uses thereof, as it may determine in its sole and
absolute discretion.
3. PROPRIETARY INFORMATION
a. For purposes of this Agreement, "proprietary information" shall mean any
information relating to the business of Company or any entity in which Company
has a controlling interest and shall include (but shall not be limited to)
information encompassed in all drawings, designs, programs, plans, formulas,
proposals, marketing and sales plans, financial information, costs, pricing
information, customer information, and all methods, concepts or ideas in or
reasonably related to the business of Company.
b. Consultant agrees to regard and preserve as confidential, all proprietary
information, whether Consultant has such information in memory or in writing or
other physical form. Consultant shall not, without written authority from
Company to do so, directly or indirectly, use for the benefit or purposes, nor
disclose to others, either during the term of its engagement hereunder or
thereafter, except as required by the conditions of Consultant's engagement
hereunder, any proprietary information.
c. Consultant shall not disclose any reports, recommendations, conclusions or
other results of the Services or the existence or the subject matter of this
contract without the prior written consent of Company. In Consultant's
performance hereunder, Consultant shall comply with all legal obligations it may
now or hereafter have respecting the information or other property of any other
person, firm or corporation.
d. The Consultant expressly agrees that the covenants set forth in this
Paragraph are being given to Company in connection with the engagement of the
Consultant by Company and that such covenants are intended to protect Company
against the competition by the Consultant, within the terms stated, to the
fullest extent deemed reasonable and permitted in law and equity. In the event
that the foregoing limitations upon the conduct of the Consultant are beyond
those permitted by law, such limitations, both as to time and geographical area,
shall be, and be deemed to be, reduced in scope and effect to the maximum extent
permitted by law.
e. The foregoing obligations of this Paragraph shall not apply to any part of
the information that (i) has been disclosed in publicly available sources of
information, (ii) is, through no fault of the Consultant, hereafter disclosed in
publicly available sources of information, (iii) is now in the possession of
Consultant without any obligation or confidentiality, or (iv) has been or is
hereafter lawfully disclosed to Consultant by any third party, but only to the
extent that the use or disclosure there of has been or is rightfully authorized
by that third party.
4. FEES AND REIMBURSEMENT OF CERTAIN EXPENSES
Linkwell Corporation shall pay the following compensation to China Direct
Investments, Inc. and/or its designees in consideration for the services to be
rendered hereunder:
There shall be issued to China Direct Investments, Inc. and/or its designees
2,000,000 shares of Common Stock, $.0005 par value (the "Shares"), of Linkwell
Corporation at the inception of the agreement in consideration for the agreement
to provide services to be performed hereunder.
Award Fees. This agreement provides for the payment of cash fees to be paid to
China Direct Investments, Inc. and/or its designees. At the mutual agreement of
Linkwell Corporation and China Direct Investments, Inc. and/or its designees,
Linkwell Corporation can pay to Consultant fees in readily available funds.
5. BENEFITS
The Consultant, as an independent contractor, shall not be entitled to any other
benefits.
6. DUTY TO REPORT INCOME
The Consultant acknowledges and agrees that it is an independent contractor and
not an employee of the Company and that it is Consultant's sole obligation to
report as income all compensation received from Company pursuant to this
Agreement. The Consultant further agrees that the Company shall not be obligated
to pay withholding taxes, social security, unemployment taxes, disability
insurance premiums, or similar items, in connection with any payments made to
the Consultant pursuant to the terms of this Agreement.
7. TERM
This Agreement shall be effective beginning as of first day of September 1,
2005, and shall end on August 31, 2006.
8. NOTICES
All notices and xxxxxxxx shall be in writing and sent via first class mail to
the respective addresses of the parties set forth at the beginning of this
Agreement or to such other address as any party may designate by notice
delivered hereunder to the other party.
9. GENERAL
a. The terms and conditions of Paragraphs 3, 4 and 5 hereof shall survive the
termination of this Agreement or completion of the Services as the case may be.
b. Neither the Company nor Consultant shall assign this Agreement or delegate
its duties hereunder and shall not subcontract any of the Services to be
performed hereunder without the prior written consent of the other party hereto.
c. Consultant shall perform the Services as an independent contractor and shall
not be considered an employee of Company or Partner, joint venture or otherwise
related to Company for any purpose.
d. This Agreement shall be governed by the laws of the State of Florida.
e. This Agreement constitutes the entire understanding between Consultant and
Company respecting the Services described herein. The terms and conditions of
any purchase order shall have no effect upon this Agreement and shall be used
for accounting purposes only.
f. The failure of either party to exercise its rights under this Agreement shall
not be deemed to be a waiver of such rights or a waiver of any subsequent
breach.
g. Any delay or nonperformance of any provision of this Agreement caused by
conditions beyond the reasonable control of the performing party shall not
constitute a breach of this Agreement, provided that the delayed party has taken
reasonable measures to notify the other of the delay in writing. The delayed
party's time for performance shall be deemed to be extended for a period equal
to the duration of the conditions beyond its control. "Conditions beyond a
party's reasonable control" include, but are not limited to, natural disasters,
acts of government after the date of the Agreement, power failure, fire, flood,
acts of God, labor disputes, riots, acts of war and epidemics. Failure of
subcontractors and inability to obtain materials shall not be considered a
condition beyond a party's reasonable control.
h. Non-Solicitation of Consultant's Employees: Company agrees not to knowingly
hire or solicit Consultant's employees during performance of this Agreement and
for a period of two years after termination of this Agreement without
Consultant's written consent.
i. Mediation and Arbitration: If a dispute arises under this Agreement, the
parties agree to first try to resolve the dispute with the help of a mutually
agreed-upon mediator in Palm Beach County, FL. Any costs and fees other than
attorney fees associated with the mediation shall be shared equally by the
parties. If the dispute is not resolved through mediation, the parties agree to
submit the dispute to binding arbitration in Florida under the rules of the
American Arbitration Association. Judgment upon the award rendered by the
arbitrator may be entered in any court with jurisdiction to do so.
j. Attorney Fees: If any legal action is necessary to enforce this Agreement,
the prevailing party shall be entitled to reasonable attorney fees, costs and
expenses.
k. Complete Agreement: This Agreement together with all exhibits, appendices or
other attachments, which are incorporated herein by reference, is the sole and
entire Agreement between the parties. This Agreement supersedes all prior
understandings, agreements and documentation relating to such subject matter. In
the event of a conflict between the provisions of the main body of the Agreement
and any attached exhibits, appendices or other materials, the Agreement shall
take precedence. Modifications and amendments to this Agreement, including any
exhibit or appendix hereto, shall be enforceable only if they are in writing and
are signed by authorized representatives of both parties.
IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement as of
the date first above written.
Linkwell Corporation China Direct Investments, Inc.
/s/ Xxxxxxx Xxxx 8/24/05 /s/ Xxxxx Xxxx 8/24/05
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Sign Date Sign Date
Xxxxxxx Xxxx, President Dr. Xxxxx Xxxx, CEO
