CONSULTING AGREEMENT
This consulting agreement (this "Agreement") is made this 17th day of June,
2005, between CIMBIX CORPORATION, a bulletin board public company ("CBXC"),
and XXXXX XXXXXX ("XXXXXX") a Consultant (collectively the "Parties" and
each individually a "Party").
RECITALS:
XXXXXX is a consultant who desire to provide consulting services to CBXC;
and
CBXC desires to retain XXXXXX as a business development and product
marketing consultant.
NOW THEREFORE, in consideration of their mutual promises made herein, and
for other good and valuable consideration, receipt of which is hereby
acknowledged by each Party, the Parties, intending to be legally bound,
hereby agree as follows:
I. Recitals. The Parties agree that the foregoing recitals are true and
correct and are incorporated herein by reference.
II. Engagement. CBXC hereby engages XXXXXX and CBXC hereby accepts such
engagement upon the terms and conditions set forth in this Agreement.
A. Duties: XXXXXX is engaged by CBXC as a business development and
product marketing consultant, to represent CBXC and its business in
Canada; to assist CBXC in expanding its business operations in
"business consulting" services and trade. XXXXXX will report directly
to the board of directors of CBXC. The term of this Agreement begins
immediately.
B. Terms: Subject to the terms of this Agreement relating to
termination, this Agreement shall continue in full force and effect
for a term of twelve (12) months from the date thereof, and may be
renewed for successive periods of twelve (12) months thereafter by
the mutual written agreement of the Parties hereto made at least one
(1) month prior to the expiration of such term.
C. Fee Structure:
1. Time is of the Essence: Time is of the essence with respect
to the Parties' respective obligations under this Agreement.
2. Amount of Fee: CBXC hereby agrees to issue to XXXXXX, and
XXXXXX agrees to accept from CBXC, three hundred thousand
(300,000) shares of common stock of CBXC, which will be
registered by CBXC on a Registration Statement Form S-8 with
the Securities and Exchange Commission.
3. Timing of Payment of Fee: CBXC shall pay and release Shares
to XXXXXX upon satisfaction of performance from time to time in
stages commencing within thirty (30) days from filing of the
Registration Statement. Failure of CBXC to finally pay any
Shares within thirty (30) days after the applicable due date
shall be deemed a material breach of this Agreement, justifying
suspension of the performance of the Services provided by XXXXXX
and will be sufficient cause for immediate termination of this
Agreement by XXXXXX, and such breach will cause this Agreement
to be null and void.
D. Independent Contractors: In all matters relating to this Agreement
and otherwise, the Parties hereto shall be and act as independent
contractors, neither shall be the employee or agent of the other, and
each shall assume any and all liabilities for its own acts. As a result
of his independent contractor status, XXXXXX, and not CBXC, shall be
responsible for any and all income taxes and any and all other
employment related taxes or assessments which may be required of XXXXXX
in his jurisdiction. Neither Party shall have any authority to create
any obligations, express or implied, on behalf of the other Party and
neither Party shall have any authority to represent the other Party
as an employee or in any capacity other than as herein provided.
III. Termination: This Agreement may be terminated by written notice of
either Party hereto forwarded to the other Party hereto. This Agreement
shall be binding on the Parties hereto for the Term provided herein, unless
terminated as provided herein.
IV. Arbitration: Any controversy or claim arising out of or relating to
this Agreement, or the breach thereof, or its interpretation or effectiveness,
and which is not settled between the Parties themselves, shall be settled by
binding arbitration in Washington and judgment upon the award may be entered
in any court having jurisdiction thereof. Nothing, however, contained
herein shall limit CBXC's rights to injunctive relief as set out in Paragraph
V of this Agreement. The prevailing Party in any litigation, arbitration or
mediation relating to collection of fees, or any other matter under this
Agreement, shall be entitled to recover all its costs, if any, including
without limitation, reasonable attorney's fees, from the other Party for all
matters, including, but no limited to, appeals.
V. Injunctive Relief: XXXXXX agrees that his violation or threatened
violation of any of the provisions of this Agreement shall cause immediate
and irreparable harm to CBXC and, in such event, an injunction restraining
XXXXXX from such violation may be entered against XXXXXX in addition to any
other relief available to CBXC.
VI. Representations and Warranties: XXXXXX represents, warrants,
covenants and agrees that XXXXXX has a right to enter into this Agreement;
that XXXXXX is not a Party to any agreement or understanding, whether written
or oral, which would prohibit XXXXXX'x performance of his obligations here-
under; and XXXXXX is not in possession of any proprietary information
belonging to another Party which XXXXXX is legally prohibited from using.
A breach of this Paragraph VI shall be ground for immediate termination of
this Agreement.
VII. Indemnification and Hold Harmless Clause: XXXXXX agrees to indemnify
and hold CBXC and its affiliates, control persons, directors, officers,
employees and agents (each an "Indemnified Person") harmless from and
against all losses, claims, damages, liabilities, costs or expenses,
including those resulting from any threatened or pending investigation,
action, proceeding or dispute whether or not CBXC or any such other
Indemnified Person is a party to such investigation, action, proceeding or
dispute, arising out of CBXC's entering into or performing services under
this Agreement, or arising out of any matter referred to in this Agreement.
This indemnity shall also include CBXC's and/or any such other Indemnified
Person's reasonable attorneys' and accountants' fees and out-of-pocket
expenses incurred in, and the cost of CBXC's personnel whose time is spent
in connection with, such investigations, actions, proceedings or disputes
which fees, expenses and costs shall be periodically reimbursed to CBXC
and/or to any such other Indemnified Person by XXXXXX as they are incurred;
provided however, that the indemnity herein set forth shall not apply to an
Indemnified Person where a court of competent jurisdiction has made a final
determination that such Indemnified Person acted in a grossly negligent manner
or engaged in willful misconduct in the performance of the services hereunder
which gave rise to the loss, claim, damage, liability, cost or expense sought
to be recovered hereunder (but pending any such final determination the
indemnification and reimbursement provisions hereinabove set forth shall apply
and XXXXXX shall perform its obligations hereunder to reimburse CBXC and/or
each such other Indemnified Person periodically for its, his or their fees,
expenses and costs as they are incurred). XXXXXX also agrees that no
Indemnified Person shall have any liability (whether direct or indirect, in
contract or tort or otherwise) to XXXXXX for or in connection with any act or
omission to act as a result of its engagement under this Agreement except for
any such liability for losses, claims, damages, liabilities or expenses
incurred by XXXXXX is found in a final determination by a court of competent
jurisdiction to have resulted from such Indemnified Person's gross negligence
or willful misconduct.
If for any reason, the foregoing indemnification is unavailable to CBXC
or any such other Indemnified Person or insufficient to hold it harmless, then
XXXXXX shall contribute to the amount paid or payable by CBXC or any such other
Indemnified Person as a result of such loss, claim, damage or liability in such
proportion as is appropriate to reflect not only the relative benefits received
by XXXXXX and its shareholders on the one hand and CBXC or any such other
Indemnified Person on the other hand, but also the relative fault of XXXXXX and
CBXC or any such other Indemnified Person, as well as any relevant equitable
considerations; provided that in no event will the aggregate contribution by
CBXC and any such other Indemnified Person hereunder exceed the amount of fees
actually received by CBXC pursuant to this Agreement. The reimbursement,
indemnity and contribution obligations of XXXXXX hereinabove set forth shall
be in addition to any liability which XXXXXX may otherwise have and these
obligations and the other provisions hereinabove set forth shall be binding
upon and inure to the benefit of any successors, assigns, heirs and personal
representatives of XXXXXX, CBXC and any other Indemnified Person.
The terms and conditions hereinabove set forth shall survive the
termination and expiration of this Agreement and shall continue indefinitely
thereafter.
VIII. Notice: Any notice given or required to be given under this Agreement
shall be in writing and service thereof shall be sufficient if sent be hand
or by telex or telegram, facsimile transmission or other similar means of
communication if confirmed by mail, or by certified mail, return-receipt
requested, with postage prepaid, directly to the Parties' respective addresses
herein above set forth. Each Party may, from time to time, by like written
notice, designate a different address to which notice should thereafter be sent.
IX. Survival: The covenants contained in this Agreement shall survive the
termination of this Agreement, for whatever reason, and shall be binding on the
Parties.
X. Binding Effect: The terms of the Agreement shall be binding upon the
respective Parties hereto, their heirs, their owners, co-owners, partners,
associates, employers, affiliates, subsidiaries, parent companies, nominees,
representatives, employees, agents, consultants and successors and assigns.
XI. Assignment: This Agreement and the rights and obligations hereunder may
not be assigned or delegated by either Party without the prior consent of the
other Party.
XII. Choice of Law: This Agreement is made in Washington, and all questions
related to the execution, construction, validity, interpretation and
performance of this Agreement and to all other issues or claims arising
hereunder, shall be governed and controlled by the laws of Washington.
XIII. Venue: The state of Washington shall be proper venue for any and all
litigation and other proceeds involving this Agreement.
XIV. Counterparts: This Agreement may be signed in more than one counterpart,
in which case each counterpart shall constitute an original of this Agreement.
XV. Severability: In the event that any term, covenant, or condition of
this Agreement or the application thereof to any Party or circumstances shall,
to any extent, be invalid or unenforceable, the remainder of this Agreement,
or the application of such term, covenant or condition to Parties or
circumstances other than those as to which it is held invalid or non
enforceable, shall not be affected thereby; and each term, covenant, or
condition of this Agreement shall be valid and shall be enforced to the fullest
extent permitted by law.
XVI. Modification: No amendment, modification, or waiver of this Agreement or
any provision hereof shall be valid unless in writing duly signed by the
Parties hereto, which writing specifically refers to this Agreement and states
that it is an amendment, modification, or waiver.
XVII. Entire Agreement: This Agreement represents the entire agreement
between the Parties to this Agreement concerning its subject matter, and any
and all prior representations and agreements with respect to such subject
matter, if any, are merged herein and are superseded by this Agreement.
XVII. Construction: Paragraph headings are for convenience only and are not
intended to expand or restrict the scope or substance of the provisions of this
Agreement. Whenever used herein, the singular shall include the plural, the
plural shall include the singular, and pronouns shall be read as masculine,
feminine, or neuter as the context requires.
ACCEPTED:
CONSULTANT CIMBIX CORPORATION
By: /s/ Xxxxx Xxxxxx By: /s/ Xxxxxx Xxxxxx
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Xxxxx Xxxxxx Xxxxxx Xxxxxx
Consultant President/Chief Executive Officer
