EXHIBIT 10.9
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TRADESERV 94, INC.
CONSULTANTCY AGREEMENT
This Consultantcy Agreement ("Agreement") is entered into this 24th day of
August, 1998, by and between Tradeserv 94, Inc. ("TRADESERV"), Xxxxxx Xxxxxx
("Consultant") and SkyNet Holdings Inc. ("SKYNET") with offices at 000 Xxxxxxx
Xxxxxx, Xxxxxxxxx, XX 00000 ("SkyNet Holdings").
WITNESSETH
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WHEREAS, TRADESERV, is a Georgia corporation located at 000 Xxxxxx Xxxx Xxxxx,
Xxxxx, XX 00000, providing consulting services.
WHEREAS TRADESERV employs Consultant on a full-time basis
WHEREAS, Consultant has substantial skills and experience in the courier package
industry; and
WHEREAS, SKYNET desires to hire Consultant and Consultant desires to provide
services to SKYNET.
NOW THEREFORE, for good and valuable consideration, the receipt and sufficiency
of which is hereby acknowledged, the parties agree to the terms and conditions
set forth herein.
ARTICLE 1. STATEMENT OF WORK
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Consultant shall provide management services of approximately 40 hours per week,
in accordance with specifications agreed upon in writing by the parties.
ARTICLE 2. COMPENSATION
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For the complete, satisfactory, and timely performance, of services hereunder,
Consultant will be paid a professional fee and will be reimbursed for reasonable
out-of-pocket expenses incurred in performance hereof. Consultant's
professional fee will be $14,000 per month.
ARTICLE 3. EQUIPMENT
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SKYNET will provide to Consultant, laptop computer including general business
software and proprietary software, and any other items or equipment as deemed
necessary for the performance of assignment.
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ARTICLE 4. INVOICES
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Consultant shall submit invoices to SKYNET on a monthly basis for services
rendered to the date thereof. Such invoices shall be supported by appropriate
documentation, the hours worked and receipts for the expenses for which
reimbursement is sought. Upon receipt of a satisfactory invoice and
documentation, SKYNET, within a reasonable period of time, shall pay such
invoice. Payment will be made upon receipt of payment for Consultant's work
from SKYNET's client.
ARTICLE 5. TERM AND TERMINATION
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The term of this Agreement will commence on August 24th, 1998, and terminate on
approximately August 31st, 1999, or, alternatively, when agreed upon by both
parties. Notwithstanding the foregoing, either party may terminate this
Agreement for any reason, and at any time, with not less than ninety (90) days
prior written notice. The Agreement may also be terminated by immediate written
notice by the non-breaching party for breach of the Agreement by the other
party. The provisions of Articles 6, 7, 9 and 10 shall survive the termination
or expiration of the Agreement.
ARTICLE 6. PLACE OF PERFORMANCE
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Place of performance to be determined by Consultant and SKYNET in conjunction
with SKYNET'S requirements.
ARTICLE 7. CONFIDENTIAL INFORMATION
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Consultant acknowledges and agrees that in the course of the performance of the
services pursuant to this Agreement, Consultant may be given access to, or come
into possession of, confidential information of SKYNET and its clients, which
information contains trade secrets, proprietary data or other confidential
information. Consultant acknowledges and agrees that he will not use,
duplicate, or divulge to others any confidential information, including without
limitation, trade secrets belonging to or disclosed to Consultant by SKYNET or a
SKYNET client, without first obtaining written permission from SKYNET.
Confidential information as used herein, includes information, materials,
products and deliverables developed during, and discoveries and contributions
made by Consultant in the performance of this Agreement. All tangible
embodiments of such information shall be delivered to SKYNET by Consultant upon
termination hereof, or upon request by SKYNET, whichever first occurs.
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ARTICLE 8. INTELLECTUAL PROPERTY
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Consultant hereby assigns any and all rights, title and interest, including, but
not limited to, copyrights, trade secrets and proprietary rights to the
information, materials, products and deliverables developed during the
performance of the Agreement, to SKYNET. All work performed under this
Agreement and all information, materials, products and deliverables developed
pursuant to this Agreement shall be the exclusive property of SKYNET and all
title and interest therein shall vest in SKYNET. All such information,
materials, products and deliverables shall be deemed to be "works made for hire"
under the Federal Copyright Laws. Pursuant to its exclusive proprietary rights,
SKYNET shall have the sole and exclusive rights, inter alia, to use, modify or
adapt the information, materials, products or deliverables that Consultant has
developed during the performance of this Agreement. Consultant agrees to give
SKYNET all necessary assistance required to perfect such assignment of rights
defined in this Article 7.
ARTICLE 9. INDEPENDENT CONTRACTOR STATUS
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It is understood and agreed, that Consultant will provide the service under this
Agreement, on a professional basis, and as an independent contractor, and that
during the performance of the services under this Agreement, Consultant will not
be considered an employee of SKYNET within the meaning or the applications of
any federal, state or local laws or regulations including, but not limited to,
laws or regulations covering unemployment insurance, old age benefits, worker's
compensation, industrial accident, labor or taxes of any kind. Consultant shall
be fully responsible for any such withholding or paying of taxes and social
security, if SKYNET declines the aforementioned option.
ARTICLE 10. WARRANTIES AND RESPONSIBILITIES
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A. Consultant warrants and represents that neither the execution, delivery nor
performance of this Agreement constitutes a breach or violation of any
contract or agreement to which he is a party or by which he is in any
manner bound. Consultant further warrants and represents that he has no
interests or obligations, nor during the term of this Agreement will he
acquire any interests or obligations, which conflict with or hamper his
ability to perform as required hereby.
B. Consultant warrants and represents that he will perform any and all
services hereunder in a professional and workmanlike manner and that all
such work, within reason, shall be free of errors and defects. Consultant
shall immediately correct any error or defect at no additional cost to
SKYNET. This remedy is in addition to any and all other remedies which
SKYNET may have pursuant to this Agreement or otherwise. This warranty is
in addition to any warranty, which may be implied or imposed by operation
of law.
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C. Consultant also warrants and represents that all services provided
hereunder are original and will not infringe any third party's proprietary
property rights or interests.
ARTICLE 11. RESTRICTIVE COVENANTS
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A. Consultant agrees that during the term of this Agreement, and for a period
of one (1) year thereafter, Consultant will not provide consulting services
of any kind to clients of SKYNET for whom Consultant provided services to,
under, or as a result of this Agreement.
B. Consultant agrees that without SKYNET's prior written approval, Consultant
shall not publish or use any advertising, sales promotion or publicity
matter relating to services, materials, information, products and reports
furnished by Consultant wherein the name "SKYNET " and/or any of SKYNET's
client's names are mentioned or their identity implied. Consultant
acknowledges and agrees that it acquires no rights to use or refer to, or
interest in, such name or names.
ARTICLE 12. HOLD HARMLESS
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Consultant agrees to indemnify, defend and hold SKYNET harmless from and against
any suits, claims, damages, expenses, costs and liabilities arising out of
Consultant's negligent acts, omissions or wrongful conduct in the course of
performance of this Agreement, including, without limitation, the breach or
failure of any warranties and representations set forth herein. Should any
program, service and/or other materials developed by the Consultant under this
Agreement become, or in the Consultant's opinion be likely to become, the
subject of a claim of infringement of a copyright or patent, Consultant shall,
at his option, use his best efforts to either procure for SKYNET the right to
continue using the program, service and/or other materials developed by the
Consultant under this Agreement, or shall replace or modify the program, service
and/or other materials developed by the Consultant under this Agreement to make
it non-infringing.
ARTICLE 13. APPLICABLE LAW
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This Agreement will be governed by, and construed in accordance with, the laws
of the State of California, excluding its conflict of law provisions.
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ARTICLE 14. ENTIRE AGREEMENT
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This agreement represents the entire agreement between the parties with respect
to the subject matter hereof, and supersedes all prior negotiations or
representations or independent contract agreements, whether written or oral.
This Agreement may be amended only by written instrument signed by the parties.
IN WITNESS WHEREOF, the parties have executed this Agreement by their duly
authorized representatives.
TRADESERV 94 INC. SKYNET HOLDINGS INC.
/s/ Xxxxxx Xxxxxx /s/ Xxxxxxxxx Xxxxx
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(Signature) (Signature)
President President
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(Title) (Title)
August 24, 1998 August 24, 1998
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(Date) (Date)
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