EXHIBIT 10.4
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Consulting Agreement between Humana Trans Services Group, Ltd. and Xxxxx
& Associates
CONSULTING AGREEMENT
THIS AGREEMENT made as of April 22, 2002 between XXXXXX X. XXXXX, III, of Xxxxx
& Associates (the "Consultant") and Humana Trans Services Group, Ltd., (the
"Company").
IN CONSIDERATION OF the mutual covenants, terms and agreements herein contained,
and for other good and valuable consideration, the receipt and sufficiency of
which is hereby acknowledged, the parties hereto hereby agree as follows:
1. SERVICES. The Consultant shall, during the Term (as defined below)
provide the following services (the "Services") to the Company, at
such times as the Company may reasonably request:
Assistance in the preparation of Amendments to Form SB-2 to be
filed with the Security and Exchange Commission including related
regulatory, financial reporting and accounting, and other
business consulting.
2. COMPENSATION. The Company shall pay to the Consultant the sum of
50,000 shares of common stock. The Company shall reimburse the
Consultant for all reasonable expenses incurred in connection with
this Agreement.
The Consultant shall submit monthly invoices to the Principal for its
compensation and related expenses.
3. TERM. This Agreement shall commence on April 23, 2002 and shall remain
in effect until the effectiveness of form SB-2 with the SEC, which
ever comes first (the "Term"), provided that the parties may, in
writing, agree to extend the Term. Notwithstanding the foregoing, this
Agreement may be terminated at any time at the option of one party,
upon the failure of the other party to comply with the covenants,
terms and agreements of this Agreement and upon notice of such failure
to such other party.
Upon any termination of this Agreement, the Consultant shall deliver
to the Company any information which has been developed, maintained or
copied by the Consultant in furtherance of this Agreement, or which
may contain Confidential information, including, but not limited to
files, lists, plans, papers, documents, or any electronic media. The
Consultant shall secure all such written or descriptive matter in
files at all times to prevent their loss or unauthorized disclosure,
and to segregate Confidential Information at all times from the
material of others.
4. RIGHTS IN DATA.
a. All of the items prepared for or submitted to the Company under
this Agreement (the "Items") shall belong exclusively to the
Company. HOWEVER, IT IS UNDERSTOOD THAT ALL INFORMATION PROVIDED
BY THE COMPANY TO THE CONSULTANT IS THE RESPONSIBILITY OF
MANAGEMENT OF THE COMPANY AS TO THE ACCURACY AND RELIABILITY OF
THAT INFORMATION.
b. To the extent that any pre-existing materials are contained in
the Items, the Consultant grants to the Principal an irrevocable,
non-exclusive right to (i) use, execute, reproduce, display,
perform, distribute (internally or externally) copies of, and
prepare derivative works based upon the Items and (ii) authorize
others to do any, some or all of the foregoing. HOWEVER, PRIOR TO
DISTRIBUTION OF SUCH ITEMS, THE COMPANY AGREES TO NOTIFY THE
CONSULTANT AS TO THE INTENDED USE OF SUCH DISTRIBUTION AND THE
CONSULTANT SHALL HAVE THE RIGHT TO REVIEW ALL DRAFTS OF SUCH
INFORMATION PRIOR TO DISTRIBUTION.
c. The Consultant shall have the right to publish any information
resulting from its performance under this Agreement in a manner
which preserves the Company's right in the Items, after obtaining
the Company's prior written approval, which approval shall not be
unreasonably withheld; provided that any such approval may be
conditional upon reasonable alterations or deletions to ensure
that Confidential Information is not published.
d. No license or right is granted to the Consultant either expressly
or by implication, estoppels or otherwise, to publish, reproduce,
prepare derivative works based upon, distribute copies of,
publicly display, or perform, any of the Items, except
pre-existing materials of the Consultant or information available
through the public domain, either during the Term or after
termination of this Agreement.
5. NOTICES. All notices, requests, demands or other communications
required by this Agreement or desired to be given or made by either of
the parties to the other hereto shall be given or made by personal
delivery or by mailing the same in a sealed envelope, postage prepaid,
registered mail, return receipt requested, and addressed to the
parties at their respective addresses set forth above or to such other
address as may, from time to time, be designated by notice given in
the manner provided in this paragraph. Any notice or communication
mailed as aforesaid shall be deemed to have been given and received on
the third business day next following the date of its mailing. Any
notice or writing delivered to a party hereto shall be deemed to have
it been given and received on the day it is delivered, provided that
if such day is not a business day, then the notice or communication
shall be deemed to have been given and received on the business day
next following such date.
6. COMPLIANCE WITH LAWS. The Consultant agrees that it will comply with
all applicable laws, ordinances, regulations and codes in the
performance of its obligations under this Agreement, including the
procurement of permits and certificates where required.
7. ENTIRE AGREEMENT. This Agreement sets forth the entire Agreement
between the parties hereto in connection with the subject matter
hereof. No alteration, amendment or qualification of this Agreement
shall be valid unless it is in writing and is executed by both of the
parties hereto.
8. SEVERABILITY. If any paragraph of this Agreement or any portion
thereof is determined to be unenforceable or invalid by the decision
of any court by competent jurisdiction, which determination is not
appealed or appeal able, for any reason whatsoever, such
unenforceability or invalidity shall not invalidate the whole
Agreement, but the Agreement shall be construed as if it did not
contain the particular provision held to be invalid and the rights and
obligations of the parties shall be construed and enforced
accordingly.
9. FURTHER ASSURANCES. The parties hereto covenant and agree that each
shall and will, upon reasonable request of the other, make, do,
execute or cause to be made, done or executed, all such further and
other lawful acts, deeds, things, devices and assurances whatsoever
for the better or more perfect and absolute performance of the terms
and conditions of the this Agreement.
10. GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York.10.
11. RELATIONSHIP. The Consultant shall perform the Services as an
independent contractor. Nothing contained in this Agreement shall be
deemed to create any association, partnership, joint venture, or
relationship of principal and agent or employer and employee between
the parties hereto or to provide either party with the right, power or
authority, whether express or implied, to create any such duty or
obligation on behalf of the other party. The Consultant also agrees
that it will not hold itself out as an affiliate of or partner, joint
venturer, co-principal or co-employer with the Company, by reason of
the Agreement and that the Consultant will not knowingly permit any of
its employees, agents or representatives to hold themselves out as, or
claim to be, officers or employees of the Company by reason of the
Agreement.
12. CONSTRUCTION. In this Agreement, except as otherwise expressly
provided, all words and personal pronouns relating thereto shall be
read and construed as the number and gender of the party or parties
referred to in each case require and the verb shall be read and
construed as agreeing with the required word and pronoun.
13. HEADINGS. The division of this Agreement into paragraphs and the use
of headings are for convenience of reference only and shall not modify
or affect the interpretation or construction of this Agreement or any
of its provisions.
IN WITNESS WHEREOF the parties hereto have executed this Agreement as of the
date first above written.
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Witness Xxxxxx X. Xxxxx, III
Xxxxx & Associates LLC
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Xxxxx Xxxxxxx
President
Humana Trans Services Group Inc.
