CONSULTING AGREEMENT
THIS AGREEMENT made effective this 18th day of August 2003, by and between Xxxxx
Xxxxxxx ("Consultant") and NeWave, Inc. (F.K.A Utah Clay Technology) ("Client")
(collectively, the "Parties" and separately, the "Party").
WITNESSETH:
WHEREAS, Client is an alternative distribution network providing wholesale
products along with a full suite of business solutions; and WHEREAS, Consultant
has experience providing certain advisory services to companies; and
WHEREAS, Client and Consultant wish to enter into a relationship whereby
Consultant will provide certain services to Client on the terms and conditions
hereinafter set forth.
NOW THEREFORE, in consideration of, and for the mutual promises and covenants
contained herein, and for good and valuable consideration, the receipt of which
is hereby acknowledged, the parties agree as follows:
1. STATEMENT OF SERVICES-SCOPE OF WORK Client agrees to engage Consultant to
perform the services and undertake the duties and responsibilities as set forth
below and incorporated herein (the "Services") and Consultant agrees to render
the Services under the terms and conditions set forth in this Agreement.
Consultant shall perform the Services without a fixed schedule or a commitment
of a minimum number of hours provided; however, Consultant will provide a
reasonable number of hours to perform the Services.
2. NO EMPLOYMENT Consultant will be engaged solely as a consultant and not as an
employee. The relationship between Consultant and Client shall at all times be a
contractor/principal relationship, and Consultant shall not be deemed to be an
employee of Client.
3. COMPENSATION AND PAYMENT Client shall pay Consultant $3,625 per month.
4. TERM OF AGREEMENT The term of this Agreement (the "Term") shall commence as
of the date of this Agreement and shall remain in full force and effect for five
months unless terminated pursuant to Section 5.
5. TERMINATION OF AGREEMENT Either Party may terminate this Agreement due to a
material breach by the other party and failure by that party to cure within 30
days of written notice of said breach (the "Notice of Termination"). Upon
receiving Notice of Termination from Client, Consultant shall discontinue
performance of the Services on the date specified in the Notice of Termination
(the "Termination Date").
6. CONFIDENTIALITY OF INFORMATION Consultant acknowledges that he has executed
the Confidentiality Agreement attached hereto. The Parties further agree that
Client retains sole and exclusive right, title and ownership of any and all
proprietary technology and any new products, improvements, enhancements or the
like that result from Consultants services (the "Developments") and that
Consultant shall not have any right to or claim for any interest in the
technology and/or the Developments.
7. RESPONSIBILITY OF THE CLIENT Client shall:
(a) Provide reasonable assistance to Consultant by making available to
Consultant pertinent information relating to the Services.
(b) Provide prompt written notice to Consultant whenever Client becomes aware of
any development that affects the scope or timing of the Services.
(c) Pay Consultant for the Services in a timely manner.
8. RESPONSIBILITIES OF THE CONSULTANT Consultant shall:
(a) Use best efforts to perform the Services in a professional and xxxxxxx like
manner consistent with the professional standards of the industry.
(b) Inform and update Client regarding matters pertinent to the performance of
the Services.
(c) Although Consultant may perform services for other customers/clients,
Consultant has agreed that shall devote such time as is reasonable and necessary
to complete the Services in a timely manner consistent with the time frame
established by Client.
9. COMPLIANCE WITH LAW Consultant agrees to comply with all applicable local,
state and federal laws, regulations and orders relating to the Services,
including but not limited to, fair and equal opportunity practices and policies.
10. NOTICES Any notice to be given under and pursuant to the terms of this
Agreement shall be in writing and shall be made by personal delivery, by a
nationally recognized overnight carrier or by registered or certified mail,
postage prepaid, return receipt requested and such notice shall be deemed given
upon receipt if delivered personally or by overnight carrier, or forty-eight
(48) hours after deposit in the United States mails as set forth herein. Any
notice to the parties shall be sent to the following addresses or to such other
address, as either party to this Agreement shall specify by notice to the other:
11. GOVERNING LAW The laws of the State of California shall govern this
Agreement.
12. BINDING ARBITRATION Any controversy or claim arising out of or relating to
this Agreement, or any alleged breach thereof, will be settled by binding
arbitration in accordance with the Commercial Rules of the American Arbitration
Association. Such action shall be brought in Orange County, California and
judgment upon the award rendered by the Arbitrator(s) may be entered in any
court having jurisdiction thereof. The prevailing party in such action shall be
entitled to recover reasonable attorney's fees.
13. ENTIRE AGREEMENT This Agreement constitutes the entire agreement between the
Parties and the terms and conditions may be waived, modified or amended only by
written agreement signed by both Parties.
14. WAIVER No covenant, term or condition of this Agreement or breach thereof
shall be deemed waived unless the waiver is in writing and signed by the party
against whom enforcement is sought. Any waiver shall not be deemed to be a
waiver of any proceeding or succeeding breach of the same or any other covenant,
term or condition.
15. MUTUAL REPRESENTATION AND WARRANTIES Each Party represents to the other
that:
(a) They are not restricted or prohibited, contractually or otherwise, from
entering into and performing each of the terms and conditions of this Agreement.
(b) The person executing this Agreement on behalf of the respective party has
the requisite power and authority to execute this Agreement and to cause the
respective party to be legally bound.
(c) No suits, actions or proceedings are threatened or pending that will
adversely affect its ability to perform its obligations under this Agreement.
16. ASSIGNMENT This Agreement and the rights hereunder may not be assigned by
either Party without the prior written consent of the other and shall be binding
upon and inure to the benefit of the Parties, their respective successors and
assigns.
17. SEVERABILITY The provisions of this Agreement are meant to be enforced
severally so that the determination that one or more provisions are enforceable
or invalid shall not affect or render invalid any other provisions of this
Agreement and such provisions shall continue to be in full force in accordance
with their terms.
18. COUNTERPARTS This Agreement may be executed simultaneously in any number of
counterparts, each of which shall be deemed to be an original and such
counterparts shall constitute but one and the same instrument. IN WITNESS
WHEREOF, the Parties have caused this Agreement to be executed effective as of
the date set forth above.
CONSULTANT: CLIENT:
Xxxxx Xxxxxxx NeWave, Inc.
/s/ Xxxxx Xxxxxxx By: /s/ Xxxxxxx Xxxx
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Xxxxx Xxxxxxx Xxxxxxx Xxxx
Chief Executive Officer
