Exhibit 10.4
CONSULTING AGREEMENT
This CONSULTING AGREEMENT is effective as of June 30, 2001 by and between
DataWorld Solutions, Inc. ("DataWorld") and Xxxxxxxx Xxxxxxx ("Consultant") with
reference to the following facts:
WHEREAS, DataWorld is a Delaware corporation located in Farmingdale, New York;
and,
WHEREAS, Consultant is a New York business consultant with extensive experience
in working with both start up and small companies; and,
WHEREAS, DATAWORLD and consultant desire to enter into an Agreement providing
for the services of Consultant for the benefit of DATAWORLD;
NOW THEREFORE, in consideration of the promises and mutual covenants contained
herein, and intending to be legally bound, it is mutually covenanted and agreed
by and between the parties to the terms and conditions hereinafter set forth.
1. DUTIES. Consultant shall serve as independent contractor of DATAWORLD and
shall be responsible for rendering services and advise to DATAWORLD on the
following terms and conditions:
A. Consultant shall use his best efforts to render the accounting related
services described in this paragraph and advice to DATAWORLD as reasonably
needed, and, to do and perform all necessary or advisable services or acts to
fulfill the duties and obligations required by the terms of this Agreement,
subject at all times to the policies set by DATAWORLD's Board of Directors and
to the consent of the Board when required by the terms of this Agreement. Such
services will include, but will not necessarily be limited to:
(i) start-up and ongoing business advice;
(ii) Advice re various non manufacturing disciplines, including but
not limited to operational issues, human resources, office
administration and risk management.
(iii) Business plan writing
B. Consultant shall, during the term of this Agreement, devote such time,
attention, skill, and efforts to the performance of duties on behalf of
DATAWORLD, provide such identified services for DATAWORLD to the extent the
parties mutually agree is necessary under the circumstances. At no time will
Consultant be asked to make policy for DataWorld or in any way be asked to act
as an Officer of the Corporation in fact or otherwise.
C. To the best of his ability and experience Consultant shall loyally and
conscientiously perform all of the duties and obligations required of it either
expressly or implicitly by the terms of this Agreement.
D. Consultant's performance of its duties hereunder shall at times be rendered
to DATAWORLD's satisfaction and may be rendered at the offices maintained by
Consultant or at any other location deemed suitable by Consultant and DATAWORLD.
2. TERM OF AGREEMENT. The term of this Agreement shall be for a period of one
year beginning on the date of this Agreement is executed by the parties.
This Agreement may be terminated earlier as herein provided. The parties
agree that termination of the performance of duties by Consultant under
this Agreement does not, under any circumstance, terminate any of the
obligations of either party under this Agreement except the obligation of
DATAWORLD to use the services of Consultant and the obligation of
Consultant to provide such services. All other obligations under this
Agreement shall be terminated and/or satisfied only as otherwise indicated
herein.
3. RENEWAL. This Agreement shall be renewed for one succeeding term(s) unless
either party gives written notice to the other prior to the expiration of
the term of its intention not to renew this Agreement.
4. COMPENSATION.
A. As compensation for the services to be performed hereunder, Consultant shall
receive compensation, subject to the limitations and contingencies set forth in
sub-paragraphs (vii) and (viii), as follows:
(i) For the duties described in this Agreement at a rate of $65.00
per hour. Consultant agrees to defer any monthly fees in excess
of $7,300 until DATAWORLD is either sold, obtains new financing
of at least $500,000, or maintains a book bank balance of
$100,000 for 30 consecutive days,
(ii) For Consultant's attendance at meetings, Consultant will be paid
a three hour minimum, or $195.00, unless the meeting time exceeds
three hours, in which case, Consultant will be compensated for
the total time spent in the meeting at a rate of $65 per hour,
(iii) Consultant shall be reimbursed for travel and out of pocket
expenses by DATAWORLD. Any expense that exceeds $25.00 must be
pre-approved by DATAWORLD;
B. The aforesaid compensation shall begin on the deemed effective date of this
Agreement.
5. ASSIGNMENT OF ALL BUSINESS OR INCOME. Services performed by Consultant for
DATAWORLD and any revenues derived from same (as related specifically to
DATWORLD) shall be considered the business and the income of DATAWORLD.
6. OBLIGATIONS OF DATAWORLD. DATAWORLD shall provide Consultant with the
compensation indicated herein on a monthly basis, due and payable by no
later than the 30th of the month following the month in which services have
been provided. Remuneration can be made in a single payment or multiple
payments as agreed to between the parties.
7. INDEPENDENT CONTRACTOR. The parties agree that:
A. No relationship of employer and employee is intended or created by this
Agreement. Consultant shall act as an independent contractor and shall have no
claim under this Agreement or otherwise against DATAWORLD.
X. Xxxxxxx, as an independent contractor, is responsible for the payment of all
federal, state, local and employment taxes that may arise because of monies or
other benefits that it receives from DATAWORLD under this Agreement.
8. TRADE SECRETS. The parties acknowledge and agree that, during the term of
this Agreement, and, in the course of the discharge of its duties
hereunder, Consultant shall have access to and become acquainted with
information concerning the operation of DATAWORLD including, without
limitation, financial, personnel, credit reports, customer names and
addresses, economic data, sales and other information that is owned by
DATAWORLD and regularly used in the operation of DATAWORLD's business, and,
that such information shall be the exclusive property of DATAWORLD and
constitutes DATAWORLDs trade secrets.
A. Consultant specifically agrees that it shall not misuse, misappropriate, or
disclose any such trade secrets, directly or indirectly, to any person or use
them in anyway, either during the term of this Agreement or at any time
thereafter, except as is required in the course of its duties hereunder.
B. Consultant acknowledges and agrees that the sale or unauthorized use or
disclosure of any of DATAWORLD's trade secrets, including information concerning
DATAWORLD's current or any future and proposed work, services, or products, the
facts that any such work, services, or products are planned, under
consideration, or in production, as well as any descriptions thereof, constitute
unfair competition.
C. Consultant further agrees that all files, records, documents, drawings,
specifications, equipment, and similar items relating to DATAWORLD's business,
whether prepared by DATAWORLD, Consultant or others, are and shall remain
exclusively the property of DATAWORLD and that they shall be removed from the
premises of DATAWORLD only with the express prior written consent of DATAWORLD's
Board of Directors.
D. On termination of this Agreement, Consultant shall not be entitled to keep or
reproduce DATAWORLD's records, files, documents, drawings, specifications,
equipment, and similar items related to any customer.
9. TERMINATION OF CONTRACT. This Agreement may be terminated as follows:
A. On any specified agreed date, if DATAWORLD and Consultant shall mutually
agree in writing to terminate this Agreement.
B. Upon expiration of the term of this Agreement, provided either party gives
prior written notice to the other party of that party's decision not to renew
this Agreement.
C. With the exception of Paragraph 1A(iv) which shall survive Consultant and
become part of his estate, immediately after Consultant has been unable or
unwilling to perform his obligations as described in Paragraph 1A (i) and (ii);
D. Immediately on the filing of a petition in bankruptcy by DATAWORLD.
E. Unless otherwise indicated by DATAWORLD, immediately upon the adoption by
DATAWORLD of a plan to sell or change management of the business or terminate
its business and liquidate its assets, or, if DATAWORLD is ordered to be
liquidated pursuant to a judicial proceeding.
F. Unless otherwise indicated by DATAWORLD, immediately in the event of any
merger or consolidation or transfer of assets. DATAWORLD's rights, benefits, and
obligations hereunder may not be assigned to the surviving or resulting
corporation.
G. Immediately if Consultant fails, refuses or neglects to perform faithfully
the duties of the Agreement, or for any reason that is deemed to be for cause
under New York law.
H. Immediately if DATAWORLD or Consultant commits an act of dishonesty, fraud,
material misrepresentation, or serious moral turpitude.
10. OBLIGATIONS AFTER TERMINATION. In the event of termination of this
Agreement, DATAWORLD shall be obligated only to pay for the compensation
earned by Consultant prior to termination, specifically DATAWORLD must
honor paragraph 4A(iv) even in the event of early termination. Consultant
shall remain obligated to DATAWORLD to fulfill its remaining obligations
under this Agreement notwithstanding the termination of this Agreement.
11. CORPORATION'S AUTHORITY. Consultant agrees to observe and comply with the
rules and regulations of the Corporation, as adopted by the Board of
Directors, respecting performance of duties and to carry out and perform
orders, directions and policies stated by DATAWORLD from time to time
either orally or in writing. Consultant understands that DATAWORLD shall
have final authority over acceptance or refusal of any customer, over the
prices to be charged any customer for goods or services sold and over all
other matters relating to the business of DATAWORLD.
12. GOVERNMENTAL AUTHORITIES. The parties agree that, in connection with the
services performed hereunder, they shall each comply with all laws, rules
and regulations of all governmental authorities having jurisdiction over
the matters relating to this Agreement.
13. HOLD HARMLESS. Each party shall conduct themselves at all times in
accordance with the highest standards of professional conduct and
responsibility and each hereby indemnifies and saves harmless the other
from each and every and all losses, claims, demands, obligations,
liabilities, indebtedness and causes of action of every kind, type, nature
or description whatsoever, whether known or unknown, as if expressly set
forth and described herein, which either party may incur, suffer, become
liable for, or which may be asserted or claimed against the other party as
a result of the acts, errors or omissions of the other party.
14. MISCELLANEOUS PROVISIONS. The parties agree that the following general
provisions shall apply to this Agreement.
15. AGREEMENT TO PERFORM NECESSARY ACTS. Each party to this Agreement agrees to
perform any further acts reasonably required under the terms of this
Agreement and to execute and deliver any documents that may be reasonably
necessary to carry out the provisions of this Agreement.
16. DURATION OF THIS AGREEMENT. Except as otherwise provided herein, the
duration of this agreement shall be one year.
17. AUTHORITY AND EXECUTION. The execution and delivery of this Agreement by
each party and performance of the transactions contemplated hereby by such
party have been duly authorized on the part of such party, and the
person(s) executing this Agreement on behalf of such party have full power
and authority to execute the same.
18. ASSIGNMENT. No right or interest in this Agreement shall be assigned by
either party without the written permission of the other party and no
delegation of any obligation owed or of the performance of any obligation
shall be made without the written permission of the parties. Any attempted
assignment or delegation shall be wholly void and completely ineffective
for all purposes unless made in conformity with this Agreement.
19. SUCCESSORS AND ASSIGNS. Except as provided in the preceding paragraph, this
Agreement shall inure to the benefit of and be binding upon the parties
hereof, and each of their successors and assigns.
20. ENTIRE AGREEMENT. This writing is intended by the parties as a final
statement of their Agreement, is intended also as a complete and exclusive
statement of the terms of this, the sole and only, Agreement between them,
correctly sets forth their obligations to each other as of this date and
contains all of the covenants and agreements between the parties with
respect to those services. No course of prior dealings between the parties
and no usage of the trade shall be relevant to supplement or explain any
term used in this Agreement. Acceptance or acquiescence in a course of
performance rendered under this Agreement shall not be relevant to
determine the meaning of this Agreement even though the accepting or
acquiescing party has knowledge of the nature of the performance and
opportunity for objection. Each party to this Agreement acknowledges that
no representations, inducements, promises, or agreements, oral or
otherwise, have been made by any party, or anyone acting on behalf of any
party, that are not embodied herein, and that no other agreement,
statement, or promise not contained in this Agreement shall be valid or
binding.
21. MODIFICATION. This Agreement or any of its terms cannot be modified,
changed, altered, appealed, discharged or terminated except by an
instrument in writing (referring specifically to this Agreement) executed
by the party against whom enforcement of any such modification is sought.
22. AMENDMENTS. The provisions of this Agreement may be waived, altered,
amended, repealed, or otherwise changed, in whole or in part, only on the
written consent of all the parties to this agreement.
23. EFFECT OF WAIVER. Failure to insist on strict compliance with any of the
terms, covenants, or conditions of this Agreement shall not be deemed a
waiver of that term, covenant, or condition, nor shall any waiver or
relinquishment of any right or power at any one time or times be deemed a
waiver or relinquishment of the right or power for all or any other times.
Except as otherwise provided herein, no claim of waiver, consent or
acquiescence with respect to any provision of this Agreement shall be made
against either party except on the basis of a written instrument executed
by or on behalf of such party. Any party shall have the unilateral right by
written instrument to waive any condition or extend the time for
performance of any condition or act to be performed for its benefit or
approval, and a waiver of any condition, right or remedy shall not be
deemed a waiver of any other condition, right or remedy. The waiver by any
party of the performance of any covenant, condition or promise shall not
invalidate this Agreement nor shall it be considered a waiver by it of any
other covenant, condition or promise. The exercise of any remedy provided
in this Agreement shall not be a waiver of any consistent remedy provided
by law, and the provision of this Agreement for any remedy shall not
exclude other consistent remedies unless they are expressly executed. The
waiver of any breach of this Agreement by either party shall not constitute
a continuing waiver or a waiver of any subsequent breach either of the same
provision or any other provision of this Agreement.
24. CONSTRUCTION This Agreement shall be constructed as a whole and in
accordance with its plain meaning. The organization of this Agreement is
for convenience only and shall not be used in construing the meaning of the
provisions of this Agreement.
25. SEVERABLITY AND INVALIDITY. It is intended that each provision of this
Agreement shall be viewed as separate and divisible. If any provision in
this Agreement is held by a court of competent jurisdiction to be invalid,
void, or unenforceable, the remaining provisions shall nevertheless
continue in full force without being impaired or invalidated in any way.
26. HEADINGS AND TITLES. The title headings of the respective sections and
paragraphs of this Agreement are inserted for the convenience and ease of
reference only and shall not be deemed to be part of this Agreement or do
not define, limit, augment or describe the scope, content or intent of this
Agreement or any part or parts of this Agreement.
27. DRAFTING PARTIES. Each party executing this Agreement aggress that it has
fully participated in the drafting of this Agreement and that no party
shall be deemed to be the drafting party of this Agreement.
28. GENDER. When the context in which the words are used in this Agreement
indicates that such is the intent, the singular and plural number shall be
deemed to include the other, and, the masculine, feminine and neuter
genders shall be deemed to include the other.
29. GOVERNING LAW. This Agreement has been executed in the place indicated
below and shall be construed in accordance with, and governed by, the laws
of the New York.
30. ARBITRATION OF DISPUTES. Any controversy or claim between the parties
arising out of or relating to this Agreement, or the breach thereof, or any
claim hereunder, shall be settled by arbitration in the County of Nassau,
State of New York, in accordance with the Rules of the American Arbitration
Association, and judgment upon the award rendered in any state or federal
court having jurisdiction with the Rules of the American Arbitration
Association and, insofar as may be feasible, the parties shall designate an
experienced arbitrator (or arbitrators) who is knowledgeable of the type
contemplated by this Agreement. The parties agree that as between them,
this arbitration provision shall not preclude either party from seeking
provisional judicial remedies to preserve the status quo.
31. REMEDY FOR BREACH. If either party breaches any provision of this
Agreement, the other party shall be entitled, if it so elects, to institute
and prosecute proceedings to obtain damages for breach of this Agreement or
for any other legal or equitable relief to which it may be entitled at law.
It is further agreed that any breach or evasion of any of the terms of this
contract be either party hereto will result in immediate and irreparable
performance, if appropriate, as well as to all other legal or equitable
remedies to which such injured party may be entitled hereunder.
32. ATTORNEY'S FEES. If either party files any action or brings any proceedings
against the other arising out of this Agreement, then the prevailing party
shall be entitled to recover as an element of its costs of suit, and not as
damages, reasonable attorney's fees to be fixed by court. The "prevailing
party" shall be the party who is entitled to recover its cost of suit,
whether or not suit proceeds to final judgment. A party not entitled to
recover its costs shall not recover attorneys' fees. No sum for attorneys'
fees shall be counted in calculating the amount of a judgment for purposes
of determining whether a party is entitled to its costs or attorneys' fees.
33. COUNTERPART EXECUTION. This Agreement may be executed in one or more
counterparts, each of which shall be deemed and fully effective as an
original and all of which together shall constitutes one and the same
instrument.
34. FACSIMILE TRANSMISSION. In the event that any person utilizes a "facsimile"
transmission, including but not limited to signed documents, the parties
agree to accept the same as if they bore original signatures. The parties
hereby agree to provide the other parties, within seventy-two (72) hours of
transmission, such facsimile transmitted documents bearing the original
signature, if any.
35. NOTICE. All notices, request, demands, options and other communications
under this Agreement shall be in writing and shall be deemed to have been
duly given on the date of service, if given personally, or by telephone,
telegram, or electronic transmission to the President of the party to whom
notice is being given, or, if served personally on the party to whom notice
is to be given, or within seventy-two (72) hours after mailing, if mailed
to the party to whom notice is to be given, by first class mail, registered
or certified, postage prepaid, and if properly addresses to the party, at
its address set forth on the signature page of this Agreement or any other
address that any party may designate by written notice to others.
Notices to Consultant shall be given as follows:
Xx. Xxxxxxxx Xxxxxxx, 0 Xxxxxx Xxxxx, Xxxxxxxxx, Xxx Xxxx 00000, or
such other address as may be furnished by Consultant to DATAWORLD from
time to time in writing.
Notices to DATAWORLD shall be given as follows:
Xxxxxx XxXxxx, CEO, DataWorld Solutions, 000 Xxxxxxx Xxxxxx,
Xxxxxxxxxxx, XX 00000 or other such addresses as may be furnished to
Consultant from time to time in writing.
36. TIME IS OF ESSENCE. Time is expressly declared to be the essence of this
Contract.
37. COMPUTATION OF TIME. All periods of time referred to herein shall include
all Saturdays and Sundays and State or National holidays, unless the period
of time specifies business days. A business day is any day other than
Sunday and State or National holidays. Notwithstanding the foregoing,
however, if the date for the last date to perform any act or giving any
notice with respect to this Agreement shall fall on a Saturday, Sunday or
State or National holiday, such act or notice may be timely performed or
given on the next succeeding day which is not a Saturday, Sunday, or State
or National holiday. The time to perform any act or give any notice shall
twenty-four hours within each day unless expressly provided otherwise.
38. COSTS OF PERFORMANCE. Any party breaching this agreement shall bear and
save the other party harmless from all costs and expenses required for
securing any court orders, court decrees, court approvals, inheritance tax
clearances, and estate tax clearances required to enable the non-breaching
party to secure the required performance of the breaching party.
39. REPRESENATIONS AND WARRANTIES. Each party to this Agreement hereby
represents and warrants to the other parties to this Agreement as follows:
A. Each party believes the matter set forth in the Recitals to be true and
correct;
B. Each party has received independent legal advice from its attorneys with
respect to the advisability of entering into this Agreement;
C. Each party has carefully read this Agreement and understands this Agreement;
D. No party has previously assigned, encumbered, or in any manner transferred
all or any portion of any claim or right that may be covered by this Agreement;
E. No representation, warranty, or promise not expressly set forth in this
Agreement has been made by any party to this Agreement or by its agents,
representatives, or attorneys with respect to the subject matter of this
Agreement and no party has entered into this Agreement on the basis of any such
representation, warranty, or promise; and
F. This agreement is not intended to be, and shall not be deemed or construed to
be, an admission of liability by any party for any purpose.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed, as of June 30,2001.
Xxxxxxxx Xxxxxxx, Consultant
By:
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DATAWORLD SOLUTIONS, Inc.
By:
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Xxxxxx XxXxxx, CEO
