Exhibit 4.9
CONSULTING SERVICES AGREEMENT
This Consulting Services Agreement ("Agreement"), dated July 11, is made by and
between Xxx Xxxxxx, an individual ("Consultant"), whose address is 000 X. 0000
X., Xxxxxxxxx, Xxxx 00000, and eConnect, a Nevada corporation ("Client"), having
its principal place of business at 2500 Xxx Xxxxxxxx Xxxxxx, Xxxxx 000, Xxx
Xxxxx, Xxxxxxxxxx 00000.
WHEREAS, Consultant has background experience, resources and contacts in the
smartcard industry; and will engage in the pursuit of a developing such industry
for usage of the eCashpad
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transactions. Consultant, at his own expense, may engage other parties in the
securities industry or related fields to assist Consultant to provide the most
efficient and expeditious service to Client;
WHEREAS, Consultant desires to be engaged by Client to provide information,
evaluation and consulting services to the Client in his areas of knowledge and
expertise on the terms and subject to the conditions set forth herein; WHEREAS,
Client is a publicly held corporation with its common stock shares trading on
the Over the Counter Bulletin Board under the ticker symbol "ECNC," and desires
to further develop its business of the Client and its image;
and WHEREAS, Client desires to engage Consultant to provide information,
evaluation and consulting services to the Client in his areas of knowledge and
expertise on the terms and subject to the conditions set forth herein.
NOW, THEREFORE, in consideration for those services Consultant provides to
Client, the parties agree as follows:
1. Services of Consultant.
Consultant agrees to perform for Client all necessary services required to
identify and develop eCashPad ATM card with PIN instant cash payments to
smartcard, and various resort oriented firms with the target of payments of
PERFECT industry specialty ATM card with PIN instant cash payments. Consultant
will further provide offers, by all parties, to Client to initiate Client's
development of the PERFECT industry. As such, Consultant will be providing bona
fide services to Client. The services to be provided by Consultant will not be
in connection with the offer or sale of securities in a capital- raising
transaction, and will not directly or indirectly promote or maintain a market
for Client's securities.
2. Consideration.
Client agrees to pay Consultant, as his fee and as consideration for
services provided six hundred thousand (600,000) shares of S-8 free
trading common stock in Client. Shares are due and payable immediately
upon the effectiveness of the Form S-8 Registration Statement with the
U.S. Securities and Exchange Commission and with any appropriate states
securities administrator.
3. Confidentiality.
Each party agrees that during the course of this Agreement, information
that is confidential or of a proprietary nature may be disclosed to the
other party, including, but not limited to, product and business plans,
software, technical processes and formulas, source codes, product
designs, sales, costs and other unpublished financial information,
advertising revenues, usage rates, advertising relationships,
projections, and marketing data ("Confidential Information").
Confidential Information shall not include information that the
receiving party can demonstrate (a) is, as of the time of its
disclosure, or thereafter becomes part of the public domain through a
source other than the receiving party, (b) was known to the receiving
party as of the time of its disclosure, (c) is independently developed
by the receiving party, or (d) is subsequently learned from a third
party not under a confidentiality obligation to the providing party.
4. Late Payment.
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Client shall pay to Consultant all fees within fifteen (15) days of the
due date. Failure of Client to finally pay any fees within fifteen (15)
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 Consultant, will be sufficient cause for
immediate termination of this Agreement by Consultant. Any such
suspension will in no way relieve Client from payment of fees, and, in
the event of collection enforcement, Client shall be liable for any
costs associated with such collection, including, but not limited to,
legal costs, attorneys' fees, courts costs, and collection agency fees.
5. Indemnification.
(a) Client. Client agrees to indemnify, defend, and shall hold harmless
Consultant and /or his agents, and to defend any action brought against
said parties with respect to any claim, demand, cause of action, debt
or liability, including reasonable attorneys' fees to the extent that
such action is based upon a claim that: (i) is true, (ii) would
constitute a breach of any of Client's representations, warranties, or
agreements hereunder, or (iii) arises out of the negligence or willful
misconduct of Client, or any Client Content to be provided by Client
and does not violate any rights of third parties, including, without
limitation, rights of publicity, privacy, patents, copyrights,
trademarks, trade secrets, and/or licenses.
(b) Consultant. Consultant agrees to indemnify, defend, and shall hold
harmless Client, its directors, employees and agents, and defend any
action brought against same with respect to any claim, demand, cause of
action, debt or liability, including reasonable attorneys' fees, to the
extent that such an action arises out of the gross negligence or
willful misconduct of Consultant.
(c) Notice. In claiming any indemnification hereunder, the indemnified
party shall promptly provide the indemnifying party with written notice
of any claim, which the indemnified party believes falls within the
scope of the foregoing paragraphs. The indemnified party may, at its
expense, assist in the defense if it so chooses, provided that the
indemnifying party shall control such defense, and all negotiations
relative to the settlement of any such claim. Any settlement intended
to bind the indemnified party shall not be final without the
indemnified party's written consent, which shall not be unreasonably
withheld.
6. Limitation of Liability.
Consultant shall have no liability with respect to Consultant's
obligations under this Agreement or otherwise for consequential,
exemplary, special, incidental, or punitive damages even if Consultant
has been advised of the possibility of such damages. In any event, the
liability of Consultant to Client for any reason and upon any cause of
action, regardless of the form in which the legal or equitable action
may be brought, including, without limitation, any action in tort or
contract, shall not exceed ten percent (10%) of the fee paid by Client
to Consultant for the specific service provided that is in question.
7. Termination and Renewal.
(a) Term. This Agreement shall become effective on the date appearing
next to the signatures below and terminate one (1) year thereafter.
Unless otherwise agreed upon in writing by Consultant and Client, this
Agreement shall not
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automatically be renewed beyond its Term.
(b) Termination. Either party may terminate this Agreement on thirty
(30) calendar days written notice, or if prior to such action, the
other party materially breaches any of its representations, warranties
or obligations under this Agreement. Except as may be otherwise
provided in this Agreement, such breach by either party will result in
the other party being responsible to reimburse the non- defaulting
party for all costs incurred directly as a result of the breach of this
Agreement, and shall be subject to such damages as may be allowed by
law including all attorneys' fees and costs of enforcing this
Agreement.
(c) Termination and Payment. Upon any termination or expiration of this
Agreement, Client shall pay all unpaid and outstanding fees through the
effective date of termination or expiration of this Agreement. And upon
such termination, Consultant shall provide and deliver to Client any
and all outstanding services due through the effective date of this
Agreement.
8. Miscellaneous.
(a) Independent Contractor. This Agreement establishes an "independent
contractor" relationship between Consultant and Client.
(b) Rights Cumulative; Waivers. The rights of each of the parties under
this Agreement are cumulative. The rights of each of the parties
hereunder shall not be capable of being waived or varied other than by
an express waiver or variation in writing. Any failure to exercise or
any delay in exercising any of such rights shall not operate as a
waiver or variation of that or any other such right. Any defective or
partial exercise of any of such rights shall not preclude any other or
further exercise of that or any other such right. No act or course of
conduct or negotiation on the part of any party shall in any way
preclude such party from exercising any such right or constitute a
suspension or any variation of any such right.
(c) Benefit; Successors Bound. This Agreement and the terms, covenants,
conditions, provisions, obligations, undertakings, rights, and benefits
hereof, shall be binding upon, and shall inure to the benefit of, the
undersigned parties and their heirs, executors, administrators,
representatives, successors, and permitted assigns.
(d) Entire Agreement. This Agreement contains the entire agreement
between the parties with respect to the subject matter hereof. There
are no promises, agreements, conditions, undertakings, understandings,
warranties, covenants or representations, oral or written, express or
implied, between them with respect to this Agreement or the matters
described in this Agreement, except as set forth in this Agreement. Any
such negotiations, promises, or understandings shall not be used to
interpret or constitute this Agreement.
(e) Assignment. Neither this Agreement nor any other benefit to accrue
hereunder shall be assigned or transferred by either party, either in
whole or in part, without the written consent of the other party, and
any purported assignment in violation hereof shall be void.
(f) Amendment. This Agreement may be amended only by an instrument in
writing executed by all the parties hereto.
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(g) Severability. Each part of this Agreement is intended to be
severable. In the event that any provision of this Agreement is found
by any court or other authority of competent jurisdiction to be illegal
or unenforceable, such provision shall be severed or modified to the
extent necessary to render it enforceable and as so severed or
modified, this Agreement shall continue in full force and effect.
Additionally, until initial agreement with said consultant is
completed, twenty five thousand in cash, plus back house payments, and
seven hundred and fifty thousand shares of consultant stock are paid in
full, contract can not be changed or severed for any reason.
(h) Section Headings. The Section headings in this Agreement are for
reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement. (i) Construction. Unless the context
otherwise requires, when used herein, the singular shall be deemed to
include the plural, the plural shall be deemed to include each of the
singular, and pronouns of one or no gender shall be deemed to include
the equivalent pronoun of the other or no gender.
(j) Further Assurances. In addition to the instruments and documents to
be made, executed and delivered pursuant to this Agreement, the parties
hereto agree to make, execute and deliver or cause to be made, executed
and delivered, to the requesting party such other instruments and to
take such other actions as the requesting party may reasonably require
to carry out the terms of this Agreement and the transactions
contemplated hereby.
(k) Notices.
Any notice which is required or desired under this Agreement shall be
given in writing and may be sent by personal delivery or by mail
(either a. United States mail, postage prepaid, or b. Federal Express
or similar generally recognized overnight carrier), addressed as
follows (subject to the right to designate a different address by
notice similarly given):
To Client:
Xxxxxx X. Xxxxxx eConnect
2500 Xxx Xxxxxxxx Xxxxxx, Xxxxx 000 Xxx Xxxxx, Xxxxxxxxxx 00000
To Consultant:
Xxx Xxxxxx
000 X. 0000 X., Xxxxxxxxx, Xxxx 00000
(l) Governing Law.
This Agreement shall be governed by the interpreted in accordance with
the laws of the State of California without reference to its conflicts
of laws rules or principles. Each of the parties consents to the
exclusive jurisdiction of the federal courts of the State of California
in connection with any dispute arising under this Agreement and hereby
waives, to the maximum extent permitted by law, any objection,
including any objection based on forum non coveniens, to the bringing
of any such proceeding in such jurisdictions.
(m) Consents.
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The person signing this Agreement on behalf of each party hereby
represents and warrants that he has the necessary power, consent and
authority to execute and deliver this Agreement on behalf of such
party.
(n) Survival of Provisions.
The provisions contained in paragraphs 3, 5, 6, and 8 of this Agreement
shall survive the termination of this Agreement.
(o) Execution in Counterparts. This Agreement may be executed in any
number of counterparts, each of which shall be deemed an original and
all of which together shall constitute one and the same agreement.
IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed and have agreed to and accepted the terms herein on the date
written above. eConnect
By : /s/ Xxxxxx X. Xxxxxx
Xxxxxx X. Xxxxxx, President
/s/ Xxx Xxxxxx
Xxx Xxxxxx
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