Services Agreement between Nimble Group, Inc. and Pure Vanilla eXchange, Inc. SERVICES AGREEMENT
Exhibit
1.10
Services
Agreement between Nimble Group, Inc. and Pure Vanilla eXchange,
Inc.
This
Services Agreement (the “Agreement”) made as of November 1, 2005 (the “Effective
Date”) by and between:
| · |
Pure
Vanilla eXchange, Inc., with main offices at 000 Xxxx 00xx
Xxxxxx 0xx
Xxxxx Xxx Xxxx, Xxx Xxxx 00000 (“PV”) and,
|
| · |
Nimble
Group, Inc., with main offices at 000 Xxxx 00xx
Xxxxxx 0xx
Xxxxx Xxx Xxxx, Xxx Xxxx 00000 (“NIMBLE”)
and
|
WHEREAS
NIMBLE is a corporation that provides payment processing services and technology
and has licensed its technology to PV for a specific field of use. To support
the start-up of PV and a successful deployment of NIMBLE’s technology by PV,
NIMBLE has agreed to provide PV with management resources (including personnel)
and space,
WHEREAS
PV is a corporation engaged in the business of providing payment processing
products and services for the adult entertainment industry,
NOW,
THEREFORE, NIMBLE and PV, for the mutual promises made herein, hereby agree
to
the following terms and conditions relating to the services that Nimble will
provide to PV and the payments that PV will make for such services.
| 1. |
Scope
of Services to be provided:
|
| NIMBLE will provide to PV the services set forth in Exhibit (1) attached hereto (the “Services”). |
| 2. |
Fees
and Payment Terms:
|
| a. |
The
rates (the “Rates”)
that PV will pay NIMBLE for the Services are attached as Exhibit (1).
The
Rates are effective as of November 1, 2005 and can be amended from
time to
time by agreement of the parties as set forth herein.
|
| b. |
NIMBLE
will invoice PV on a monthly basis for Services provided. Payment is
due
upon receipt, but not later than fifteen (15) days after invoice date.
|
| c. |
PV
will issue such shares of its common stock to employees of PV who render
services to PV on behalf of NIMBLE, in such amounts and on such terms
as
NIMBLE and PV may agree.
|
| 3. |
Territory:
|
| The Services shall be rendered at PV’s principal place of business, or at such other location as the parties may agree. PV’s principal place of business as of the date of this Agreement is located at 000 X 00xx Xx.,0xx Xxxxx, Xxx Xxxx, XX 00000 |
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| 4. |
Term:
|
|
This
Agreement shall commence on the Effective Date stated above and continue
through March 31, 2006 (the “Term”). This Agreement shall automatically
renew for successive 3 months terms unless (a) either party, by written
notice to the other party, gives notice to the other party that it
does
not intend to renew this Agreement
at
least 30 days prior to the expiration of the initial or any renewal
terms
or (b) it is terminated pursuant to Section 5
below.
|
| 5. |
Termination:
|
This
Agreement may be terminated based upon the following:
(a)
) In
the event there is a breach of any material term of this Agreement by either
party, the non-breaching party shall notify the breaching party of such breach
in writing and the breaching party shall have fifteen (15) days to cure such
breach. In the event the breaching party has not cured the default within
such time, the non-breaching party shall have the right to terminate this
Agreement on thirty (30) days notice to the breaching party.
(b)
Either party may terminate
this
Agreement immediately upon the insolvency or bankruptcy of the other party,
or
if the other party has a receiver or trustee appointed for any of its assets;
provided, that such a proceeding if commenced against a party shall not be
a
basis for termination if dismissed within thirty (30) days.
| 6. |
Notices:
|
Any
notice, advice or other written information, documentation or statement required
or permitted to be given hereunder shall be sent via USPS or Courier to the
addresses set forth in Exhibit 2. Party receiving the notice shall be deemed
notified only upon conformation of receipt, which can be done via facsimile
or
electronically.
| 7. |
Compliance
with Laws:
|
Each
party shall fully comply with or timely obtain all federal, state and local
laws, rules, regulations and ordinances applicable to its operations.
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| 8. |
Confidentiality:
|
Both
parties will treat all confidential information received from the other party
as
confidential and proprietary and shall not disclose to any third party, unless
required by operation of law. The provisions of this Agreement regarding
nondisclosure and confidentiality shall continue in effect for three (3) years
following the termination of the parties’ relationship. Each party acknowledges
that the other party owns its confidential information, and that use of the
confidential information other than as permitted under this Agreement, would
cause the other party irreparable harm for which there is no adequate remedy
at
law and would entitle the other party to injunctive relief as well as any other
remedies available including monetary damages. In the event that a dispute
arises under this Agreement and a suit is initiated, the party found to have
breached the Agreement shall be responsible for the non-breaching party’s legal
fees, including reasonable attorneys’ fees, court costs and expenses incurred in
connection with the suit.
For
purposes of this Agreement, "Confidential Information" means any trade secrets
and all technical, research, operational, manufacturing, marketing, sales and
financial policies, plans or information of the Parties. Confidential
Information does not include information, knowledge or data which the a party
can prove was in its possession prior to the commencement of this Agreement
or
information, knowledge or data which was or is in the public domain or is
independently developed by such party.
| 9. |
Relationship
of the Parties:
|
NIMBLE
and PV acknowledge that nothing contained in this Agreement shall have the
effect of creating a joint venture or an employer-employee relationship between
them, nor shall it have the effect of making any employee of NIMBLE an employee
of PV. Instead, NIMBLE will render (and will cause it employees to render)
the
Services as defined in Exhibit (1) as an independent service provider and PV
will pay for those services to NIMBLE. Neither party will be entitled
to:
| · |
enter
into any contracts or make any representations or warranties in the
name
of or on behalf of the other party;
|
| · |
pledge
the credit of the other party in any way or hold itself out as having
authority to do so; or
|
| · |
make
commitments or incur any indebtedness, costs, charges or expenses,
or sign
any agreement or other document for or in the name of the other party.
|
Without
limiting the foregoing, NIMBLE shall withhold all amounts required by law to
be
withheld from amounts paid to the persons rendering services on its behalf
pursuant to this Agreement and will pay all FICA taxes that it is required
to
pay with respect to amounts paid to such persons. NIMBLE agrees to indemnify
PV
and to hold PV harmless against any and all claims, losses, demands, actions,
lawsuits, liabilities, costs and expenses (including reasonable attorney fees)
that PV incurs by reason of NIMBLE’s failure to satisfy the foregoing
obligations.
| 10. |
Indemnification:
|
| i. |
NIMBLE
agrees to indemnify, hold harmless, and defend PV, its employees, agents,
officers, directors from and against any and all claims, losses, demands,
actions, lawsuits, liabilities, costs and expenses (including reasonable
attorney fees) for personal injuries and tangible property damage to
the
extent arising out of NIMBLE’s direct actions, including negligence and/or
intentional tortious conduct; and
|
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| ii. |
PV
agrees to indemnify, hold harmless, and defend NIMBLE, its employees,
agents, officers, directors from and against any and all claims, losses,
demands, actions, lawsuits, liabilities, costs and expenses (including
reasonable attorney fees) for personal injuries and tangible property
damage to the extent arising out of PV’s direct actions, including
negligence and/or intentional tortious
conduct.
|
| 11. |
Arbitration:
|
In
the
event of any dispute arising from any of the matters related to this Agreement,
the parties shall first elevate the matter in controversy to the senior
management representative of each party prior to submitting the matter to
arbitration. Any disputes shall be finally settled under the Rules of
Arbitration of the American Arbitration Association (“AAA) by one arbitrator
appointed in accordance with said rules. The seat, or legal place of the
arbitration shall be the County of Xxx Xxxx, Xxxxx xx Xxx Xxxx, Xxxxxx Xxxxxx
of
America.
| 12. |
Governing
Law:
|
This
Agreement shall be governed by, and interpreted and construed in accordance
with, the laws of the State of New York, without regard to its provisions
governing conflicts of law.
| 13. |
Severability:
|
Wherever
possible, each provision of the Agreement shall be interpreted in such manner
as
to be effective and valid under applicable law. However, if any provision of
this Agreement shall be determined to be prohibited by or invalid under any
applicable law, such provision shall be ineffective to the extent of such
prohibition or invalidity, without invalidating the remainder of such provision
or the remaining provisions of this Agreement
| 14. |
Assignment:
|
Save
expressly provided herein, neither party shall assign any of its benefits or
obligations under this Agreement, or delegate any of its rights and powers
hereunder to any person, company or firm (other, than in the case of Nimble,
those of its employee who render services to PV pursuant to the terms hereof)
without the previous written consent of the other party.
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| 15. |
Entire
Agreement:
|
This
Agreement supersedes any prior written or oral agreements between the parties
pertaining to the subject matter hereof.
[Signatures
on the following page]
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IN
WITNESS WHEREOF,
each of
NIMBLE and PV has caused this Agreement to be signed and delivered as of the
date first above written.
|
Pure
Vanilla eXchange, Inc.
|
Nimble
Group, Inc.
|
|
By:
/s/ Xxxxxx
Xxxxxx
|
By:
/s/ Xxxx X.
Xxxx
|
|
Name:
Xxxxxx Xxxxxx
|
Name:
Xxxx X. Xxxx
|
|
Title:
Chairman
|
Title:
Controller
|
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Exhibit
1
Services
and rates
NIMBLE
shall provide management resources and space to ensure a successful launch
of
PV’s product and to get a first external reference customer for the licensing
of
NIMBLE’s technology.
The
management resources and space will be provided at
000
x
00xx
Xx.
0xx
Xxxxx
Xxx
Xxxx,
XX 00000
NIMBLE
shall provide personnel who will provide the same services as would be provided
by an individual who held the following positions with PV, at the following
rates:
|
w
CEO
|
$28,750
a month
|
|
w
COO
|
$22,500
a month
|
|
w
CFO
|
$17,000
a month
|
|
w
VP
Business
Development
|
$13,100
a month
|
The
persons to provide those services shall be selected by Nimble and shall be
subject to the prior consent of PV, which consent shall not be unreasonably
withheld. PV may request that other services be provided by NIMBLE, and NIMBLE
may, if it so elects, provide such services; provided, that if NIMBLE elects
not
to provide those services it shall be deemed to have breached a material
provision of this Agreement for the purposes of Section 5(a). If PV wishes
additional services , PV shall notify NIMBLE on forty five (45) days notice.
The
rates
set forth above shall remain in effect until otherwise agreed by the parties
in
writing.
The
office space will be invoiced at $1,750 per office and $600 per
desk.
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Exhibit
2
Notices
Any
notice, advice or other written information, documentation or statement required
or permitted to be given under the Agreement shall be sent via courier to the
following addresses:
If
to
PV
Name:
Xxxxxx Xxxxxx
Address:
000 Xxxx 00xx
Xxxxxx,
0xx
Xxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Phone:
(000) 000 0000
Fax
(000)
000 0000
E-mail:
xxxxxxx@xxxxxxxxxxx.xxx
If
to
NIMBLE
Name:
Xxxx Xxxx
Address:
000 Xxxx 00xx
Xxxxxx,
0xx
Xxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Phone:
(000) 000 0000
Fax
(000)
000 0000
E-mail:
xxxxx@xxxxxxxxxxx.xxx
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