EXHIBIT 10.22
CONSULTING AGREEMENT
THIS CONSULTING AGREEMENT ("Agreement") is entered into as of January __,
2004 by and between Xxxxxxxx Xxxxxx, an individual whose address is: 38 Xxxxxxx
Xxxxxx, Xxxx Xxxx, Xxx Xxxx 00000 (the "Consultant") and FoneFriend, Inc., a
Delaware corporation with offices at: 0000 Xxxxx Xxxxxx Xxxx, Xxxxx X, Xxxxxxxx,
Xxxxxxxxxx 00000 (the "Company")
WITNESSTH:
WHEREAS, the Company has entered into a Technology License agreement with
FoneFriend Systems, Inc. ("Patent Holder") licensing a certain technology
related to an internet telephony device commonly referred to as the "FoneFriend"
and desires to develop the necessary infrastructure to manufacture, market,
operate and service the "FoneFriend"; and
WHEREAS, due to the fact that Xxxxxxxx Xxxxxx is the inventor of said
technology and that Consultant is the Patent Holder's designated engineering
support provider and duly licensed and/or authorized to act in the capacity
required of it hereunder in relation to the "FoneFriend" device, the Company
desires to retain Consultant to render consulting services, including assistance
and services relating to developing and implementing the Company's
infrastructure, technology analysis, planning and development, and internet and
technology solutions; and
WHEREAS, Consultant is willing to perform such consulting services on the
terms and conditions herein contained;.
NOW, THEREFORE, in consideration of the premises herein and other good and
valuable considerations, the parties agree as follows:
1. ENGAGEMENT
The Company hereby engages Consultant and Consultant hereby accepts such
engagement as a consultant to render the consulting services set forth below, as
requested by the Company, and in furtherance of the business goals of the
Company. The Consultant agrees to hire engineering support staff as required to
assist him in the performance of his duties hereunder.
2. CONSULTANT DUTIES
Consultant shall, at the direction and request of the Company, provide
technological assistance, expertise, consultation, reports and other services on
a timely basis in accordance with the Company's requests, including, but not
limited to:
2.1. Infrastructure - Consultant shall immediately assist in the
--------------
development, establishment, implementation and operation of the Company's
infrastructure necessary to support the Company's efforts in marketing and
operating the "FoneFriend" devices for its customers, generally accomplished in
accordance with the Commercialization Plan, attached hereto as Exhibit A and
made a part of this Agreement. Such services of Consultant shall also include
the analysis of various third party vendors for internet services, call
completion carriers and software providers for total management and control of
customer accounting and services. Additionally, Consultant will assist the
Company's designated technology officer or consultant, in setting up the
H-Server and Connection Server to operate on commercial grade servers.
2.2. Manufacturing- Consultant shall immediately commence supervision
-------------
of all aspects of the manufacturing and procurement of "FoneFriend" devices and
all related network elements to ensure their operability with the "FoneFriend"
technology, as well as provide to Company all manufacturing information,
functional testing, programming, software codes, technology tools and support
necessary for the Company to manufacture and operate the "FoneFriend" devices
and the service they were designed to provide. Further, the Company shall be
responsible for any fees required to be paid to third parties for software
licenses (e.g., Gao) or fees related to circuit board design and molds for box
design.
2.3. Technology Planning and Implementation - Consultant 1) will assist
--------------------------------------
the Company in determining the Company's customer servicing requirements in
order to support efficient operation of the FoneFriend and attendant systems,
including the integration of software for complete customer management, billing
and accounting; 2) will assist the Company in working with professionals to meet
such requirements, and provide Consultant's most recent and functioning copy of
the "FoneFriend" Help Desk software for the Company's use in servicing its
customers as same may be updated from time to time; and 3) will provide
training, technical assistance and support in use of same to Company's technical
support personnel.
2.4. Strategic Planning and Development - Consultant will assist
-------------------------------------
the Company in understanding its operational objectives and assist Company in
setting up and maintaining its own global network and related computer
equipment, necessary for the Company to service and manage its customer base.
3. TERM
The term of this Agreement shall commence upon execution by the parties
hereto and shall continue for an initial term of six (6) months. Thereafter,
this Agreement will continue on a month-to-month basis unless cancelled by
either party at will upon thirty (30) days advance written notice. In the event
that Consultant is in default by not performing its duties hereunder to the
satisfaction of the Company, the Company shall have the right to terminate this
Agreement after first giving notice of such default to Consultant and affording
Consultant a ten (10) day period in which to cure any noticed default. Upon
termination for any reason, the Consultant shall not be entitled to any further
compensation hereunder.
4. COMPENSATION
As full compensation for all services to be rendered by Consultant
hereunder, Consultant shall be paid, and the Consultant agrees to accept a fee
of $15,000 per month, which shall be due and owing bi-monthly in advance with
one-half of said fee being payable on the first and one-half being payable on
the fifteenth day of each month. Consultant understands that, although the
Company has a firm commitment in writing for financing, it has not yet received
such financing and, therefore, may not be able to remit payments hereunder for
an estimated period of thirty (30) days from the date hereof. Consequently, as
bonus compensation in lieu of any default by Company in the payment of
compensation, and to accommodate Consultant until the Company receives its
financing, the Company has agreed to issue Consultant a total of 50,000 shares
of freely tradable stock, released periodically over the term of this Agreement,
of which the Consultant acknowledges previous receipt of 5,000 shares. Upon the
execution of this Agreement, the Company shall remit 5,000 shares to Consultant.
Commencing thirty (30) days thereafter, the Company shall release an additional
10,000 shares to Consultant for each thirty (30) day period in which this
Agreement is in effect. The compensation referred to under this Section 4 shall
include all personnel hired by Consultant to assist him in the performance of
his services described herein above.
5. ACTIVITIES
Throughout the term of this Agreement, Consultant shall provide the
officers, directors, employees or designees of the Company with verbal and /or
written reports concerning its activities as are reasonably requested by the
Company.
6. THIRD PARTIES
The Company acknowledges that, in connection with its engagement hereunder,
Consultant may introduce the Company to third parties who may transact business
with the Company and/or assist Consultant in providing consulting services to
the Company hereunder.
7. CONFIDENTIAL INFORMATION
Consultant acknowledges that any and all knowledge or information
concerning the Company, its affairs and business activity obtained by
Consultant, its principals, employees and/or contractors in the course of its
engagement hereunder is strictly confidential, and Consultant solemnly promises
not to reveal same to any other persons and/or entities, including, but not
limited to, competitors of the Company and that it will not impart any such
knowledge to anyone whosoever during the term hereof or anytime thereafter. Any
technology enhancements, improvements or revisions paid for by the Company shall
become, and remain at all times, the intellectual property of the Company and
shall not be disclosed to or utilized by third parties without the Company's
prior written consent and approval allowing such usage. Further, all information
pertaining to the Company which is forwarded to, or otherwise obtained by
Consultant hereunder, is to be received in strict confidence and used only for
the purposes of this Agreement and not in circumvention of any economic
opportunity or business relationship of the Company. The provision of this
Section 7 shall survive the termination of this Agreement.
8. CONSULTANT STATUS
Consultant acknowledges that it is providing services hereunder as an
independent contractor. Accordingly, Consultant agrees that all expenses
associated with its operations, including but not limited to general overhead
and salaries, plus any taxes associated with the performance of its services
hereunder, shall be its sole responsibility. Consultant further agrees that
nothing herein shall create a relationship of partners or joint ventures between
Consultant and the Company and, except as otherwise set forth herein, nothing
herein shall be deemed to authorize Consultant to obligate or bind the Company
to any commitment without the prior written consent of the Company in each
instance.
9. INDEMNIFICATION
The Consultant shall hold harmless and indemnify Company from and against
any and all damages, losses, liabilities, obligations, fees, costs and expenses,
including but not limited to, the payment and advancement of reasonable
attorney's fees, resulting from, or incurred in connection with claims made
against Company relating to the performance of Consultant's duties hereunder.
Further, the Consultant will assure that any charges, liabilities, obligations
or assessments, whether existing now or arising in the future during the term of
this Agreement, that arise or result from Section 5.2 of that certain Technology
License agreement between the Company and FoneFriend Systems, Inc., dated as of
April 30, 2002, are discharged or otherwise forever released and rendered null
and void. The provision of this Section 9 shall survive the termination of this
Agreement.
10. GENERAL
10.1 This Agreement constitutes the entire agreement between the
parties with respect to the subject matter hereof. No promises, guarantees,
inducements or agreement, whether oral or written, express or implied have been
made or shall be of any force or effect other than as contained in this
Agreement. This Agreement can only be modified or changed in writing signed by
both parties.
10.2 It is agreed and acknowledged that Consultant is an independent
contractor and shall only hold itself out as such with respect to the Company.
Nothing in this Agreement shall be construed to constitute Consultant, nor any
of Consultant's representatives, as the partner, employee, joint venturer,
franchisee, legal representative, or agent of the Company and neither Consultant
nor any of its representatives shall represent itself, himself, or herself as
any of the foregoing. In furtherance of the foregoing, in no event shall
Consultant or its representatives have any authority to assume or create any
liability or obligation, express or implied, on behalf of the Company and any
representation to the contrary will constitute a material breach of this
Agreement. Consultant acknowledges that it is solely responsible for any and
all claims, liabilities, damages, wages and debts of any type whatsoever that
may arise as a result of Consultant's activities, or those of its
representatives or its employees, in the performance of this Agreement or in the
marketing, distribution, or Sale of the Licensed Product, as defined in the
Technology License referenced in paragraph 9 above.
10.3 Any notice required by this Agreement must be given by facsimile
transmission confirmed by personal delivery (including delivery by reputable
messenger services such as Federal Express) or by prepaid, first class,
certified mail, return receipt requested, addressed in the case of Company to:
FoneFriend, Inc.
0000 Xxxxx Xxxxxx Xxxx, Xxxxx X
Xxxxxxxx, XX 00000
Fax: (000) 000-0000
or in the case of Consultant to:
Xx. Xxxxxxxx Xxxxxx
00 Xxxxxxx Xxxxxx
Xxxx Xxxx, Xxx Xxxx 00000
Fax: (845) ___ - _____
or other addresses as may be given from time to time under the terms of
this notice provision.
10.4 Any disputes or disagreement arising out of or relating to this
Agreement, which cannot be settled by the parties in a mutually satisfactory
basis, shall be resolved by binding arbitration in accordance with the Rules of
the American Arbitration Association and applicable law, by three arbitrators
appointed in accord with such Rules. The Judgment of a majority of the
arbitrators shall be final and binding upon the parties, and an award upon the
Judgment of the arbitrators may be entered in any court of competent
jurisdiction. The party against, whom arbitration is sought shall select the
situs for the arbitration, provided that such situs shall be within the United
States and shall be not more than 50 miles from the principal place of business
of such party. Any counter-claims shall be made in such situs. Any award in
arbitration may be entered in any domestic or foreign court having jurisdiction
over the enforcement of such awards.
10.5 This Agreement shall be construed and enforced in accordance with
the laws of the State of Delaware, regardless of the state or district where any
arbitration may be held, determined without regard to its provisions which would
otherwise apply to a question of conflict of laws. The language used in this
Agreement shall be deemed to be language chosen by both parties hereto to
express their mutual intent, and no rule of strict construction against either
party shall apply to any terms or conditions hereof.
10.6 If any of the terms or provisions of this Agreement are held to be
unenforceable by a court of competent jurisdiction or arbitrator, the remaining
portions of the Agreement will remain in full force and effect.
10.7 This Agreement shall inure to the benefit and be binding upon the
parties hereto and their respective legal representatives, administrators,
executors, successors subsidiaries and affiliates.
10.8 Failure of either party to enforce any right under this Agreement
will not act as a waiver of that right or the ability to later assert that right
relative to the particular situation involved.
10.9 Neither party shall be held liable or responsible to the other
party nor be deemed to have defaulted under or breached this Agreement for
failure or delay in fulfilling or performing any term of this Agreement when
such failure or delay is caused by or results from causes beyond the reasonable
control of the affected party, including, without limitation, fire, floods,
earthquakes, natural disasters, embargoes, war, acts of war (whether war be
declared or not), insurrections, riots, civil commotions, strikes, lockouts or
other labor disturbances, acts of God or acts, omissions or delays in acting by
any governmental authority or the other party.
10.10 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. This Agreement may be effective upon the execution
and delivery by any party of facsimile copies of signature pages hereto duly
executed by such party; provided, however, that any party delivering a facsimile
signature page, covenants and agrees to deliver promptly thereafter at least two
(2) original copies to the other party hereto.
10.11 Those individuals signing this Agreement on behalf of their
respective entities hereby warrant that they have the authority to bind said
entity to this Agreement.
10.12 In the event of breach of this Agreement, the prevailing party
shall receive all its attorneys' fees, court costs and other attendant expenses,
unless otherwise agreed to the contrary.
IN WITNESS WHEREOF, parties hereto have caused their duly authorized
representatives to execute this Agreement.
"COMPANY" "CONSULTANT"
FONEFRIEND, INC.
BY: /S/ XXXXXXXX XXXXXX BY: /S/ XXXXXXXX XXXXXX
--------------------- ---------------------
XXXXXXXX XXXXXX, PRESIDENT XXXXXXXX XXXXXX
EXHIBIT A
FONEFRIEND COMMERCIALIZATION
-----------------------------
1 - SERVERS:
A: CONNECTION SERVER:
Supervisor: Xxxxxxxx
Time to complete 8 Weeks
Hardware Platform: Winston
Network Redundancy and Security - Winston
Fonefriend Application: Herb
Radius Capability : Andy
Starting time: 12/12/2003
Completing Time: 2/28/2004
Dec Jan Feb March April May
--- --- --- ----- ----- ---
B: H-SERVER
Supervisor: Xxxxxxxx
Time to complete 8 Weeks
Hardware Platform: Winston
Fonefriend Application: Herb
Network Redundancy and Security - Winston
Radius Capability : Andy, Faramarz, Xxxxx
Starting time: 12/12/2003
Completing Time: 2/28/2004
Dec Jan Feb March April May
--- --- --- ----- ----- ---
C: UPGRADE SERVER
Supervisor: Xxxxxxxx
Time to complete 8 Weeks
Hardware Platform: Winston
Network Redundancy and Security - Winston
Fonefriend Application: Herb
Radius Capability : Andy, Faramarz, Xxxxx
Starting time: 1/1/2004
Completing Time: 3/30/2004
Jan Feb March April May June
--- --- ----- ----- --- ----
D: AUTO REGISTRATION SERVER
Supervisor: Xxxxxxxx
Specifications: Gary, Faramarz, Winston
Time to complete 16 Weeks
Hardware Platform: WinSonic Level 3
Fonefriend Application: Xxxx, Xxxx
Radius Capability , Database Application : Winston
Starting time: 1/2/2004
Completing Time: 4/30/2004
Jan Feb March April May June
--- --- ----- ----- --- ----
E: DATABASE, BILLING, AUTHORIZATION, BILLING INQUIRIES, STATISTICAL DATA, ETC.
Supervisor: Winston
Specifications: Gary, Winston
Time to complete 16 Weeks
Hardware Platform: Winston
Starting time: 12/12/2004
Completing Time: 4/30/2004
Dec Jan Feb March April May
--- --- --- ----- ----- ---
A: FONEFRIEND UNIT SOFTWARE:
Application: Xxxx
Network: Herb
Prompts: Xxxxxxxx
Test: Dylan
Starting time: 1/2/2004
Completing Time: 5/31/2004
Jan Feb March April May June
--- --- ----- ----- --- ----
B: FONEFRIEND HARDWARE:
1. PHASE A: INITIAL 300 UNITS WITH NEW CASE, 4-LAYER PCB (MALAYSIA)
--------
2. PHASE B: LOW COST MANUFACTURING IN CHINA, FCC CERTIFIED
--------
Manufacturing: Xxxxxxxx, Xxxxx
PCB: Xxxxxxxx
Casing: Xxxxxxxx
Certification: Xxxxxxxx, Dylan
Starting time: 1/2/2004
Completing Time: 2/28/2004 Phase A, 4/30/2004 Phase B
Jan Feb March April May June
--- --- ----- ----- --- ----
3 - HELP DESK:
Agent Terminal: Xxxx
Set Up: Xxxx & Winsonic
A: CONNECTION SERVER:
JAN FEB MARCH APRIL MAY JUNE
--- --- ----- ----- --- ----
B: H-SERVER
JAN FEB MARCH APRIL MAY JUNE
--- --- ----- ----- --- ----
C: UPGRADE SERVER
JAN FEB MARCH APRIL MAY JUNE
--- --- ----- ----- --- ----
D: AUTO REGISTRATION SERVER
JAN FEB MARCH APRIL MAY JUNE
--- --- ----- ----- --- ----
E: DATABASE, BILLING, AUTHORIZATION, BILLING INQUIRIES, STATISTICAL DATA, ETC.
JAN FEB MARCH APRIL MAY JUNE
--- --- ----- ----- --- ----
F: FONEFRIEND UNIT SOFTWARE:
JAN FEB MARCH APRIL MAY JUNE
--- --- ----- ----- --- ----
G: FONEFRIEND HARDWARE:
JAN FEB MARCH APRIL MAY JUNE
--- --- ----- ----- --- ----
H: HELP DESK:
JAN FEB MARCH APRIL MAY JUNE
--- --- ----- ----- --- ----
