EXHIBIT 10.1 - BUSINESS CONSULTANT AGREEMENT
BUSINESS CONSULTANT AGREEMENT
THIS BUSINESS CONSULTANT AGREEMENT (Agreement) is made and entered into in
duplicate this 5th day of April, 2002, by and between Technology Connections,
Inc., a North Carolina corporation, its subsidiaries and its affiliates
("Corporation"), on the one hand, and The Corporate Solution, Inc., a Nevada
corporation and its affiliates ("Consultant"), on the other hand.
RECITALS
A. The Corporation continues to experience substantial growth and plans to
expand its customer base, products and services offered to its clients and its
capability to finance sustained growth in the future.
B. The Corporation is desirous of preparing itself to commence expansion of the
Corporation in order to successfully implement its plans to expand its customer
base, products and services offered to its clients and its capability to finance
sustained growth in the future.
C. The Consultant provides Business Consulting and Financial Public Relation
Services, which the Corporation needs.
D. As a result, the Board of Directors of the Corporation have determined that
it is in the best interests of the Corporation and its shareholders that the
Corporation retain the services of a consultant to consult with the (i) Board of
Directors of the Corporation ("Board"), (ii) officers of the Corporation, and
(iii) administrative staff of the Corporation concerning issues which may occur
relating to the business of the Corporation, including providing business
consulting and financial public relations services and assisting the Corporation
in preparing to expand its business operations.
E. It is the desire of the Corporation to engage the services of the
Consultant, on an independent contractor basis, to consult with the (i) Board
(ii) officers of the Corporation, and (iii) administrative staff of the
Corporation concerning issues which may occur relating to the business of the
Corporation, including providing business consulting and financial public
relations services and assisting the Corporation in preparing to expand its
business operations.
F. It is the desire of the Consultant to consult, on an independent contractor
basis, with the (i) Board, (ii) the officers of the Corporation, and (iii)
administrative staff of the Corporation regarding the business of the
Corporation, including providing business consulting and financial public
relations services and assisting the Corporation in preparing to expand its
business operations.
NOW, THEREFORE, IN CONSIDERATION OF THE MUTUAL PROMISES, COVENANTS AND
UNDERTAKINGS SPECIFIED HEREIN AND FOR OTHER GOOD AND VALUABLE CONSIDERATION, THE
RECEIPT AND SUFFICIENCY OF WHICH ARE HEREBY ACKNOWLEDGED, WITH THE INTENT TO BE
OBLIGATED LEGALLY AND EQUITABLY, THE PARTIES AGREE WITH EACH OTHER AS FOLLOWS:
1. TERM OF AGREEMENT. This Agreement shall be in full force and effect
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commencing upon the date hereof and concluding at the close of business on the
same date in 2003. The respective duties and obligations of the parties shall
commence on the date specified in the Preamble of this Agreement and shall
continue until the close of business on the same date in 2003.
2. CONSULTATIONS. The Consultant shall make appropriate personnel
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available to consult with the Board, the officers of the Corporation, and the
department heads of the administrative staff of the Corporation, at reasonable
times, concerning matters relating to any issue of importance regarding the
business affairs of the Corporation.
3. MANAGEMENT AUTHORITY OF CONSULTANT. The Consultant shall have no
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management authority of or for the Corporation.
4. MANAGEMENT POWER OF CONSULTANT. The business affairs of the Corporation,
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which affect, directly or indirectly, the operation of business of the
Corporation and which arise in the ordinary course of business, shall be
conducted by the administrative staff and officers of the Corporation. All the
members of the administrative staff shall be employees of the Corporation. The
Consultant shall have no control or charge of the administrative staff and no
control or authority to employ, discharge, direct, supervise, or control any
member of the administrative staff or other employee of the Corporation. It is
the intention of the Corporation not to confer on the Consultant any power of
direction, management, supervision, or control of the administrative staff or
other employee of the Corporation.
5. NO POWER OF CONSULTANT TO ACT AS AGENT. The Consultant shall have no
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right, power or authority to be, or act, as an agent of the Corporation for any
purpose whatsoever. In that regard, the Consultant shall not attempt or purport
to obligate the Corporation to any obligation or agreement.
6. LIMITED LIABILITY. With regard to the services to be performed by the
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Consultant pursuant to the provisions of this Agreement, the Consultant shall
not be liable to the Corporation, or to any person who may claim any right
because of that person's relationship with the Corporation, for any acts or
omissions in the performance of said services on the part of the Consultant or
on the part of the agents or employees of the Consultant, except when said acts
or omissions of the Consultant are due to the Consultant's gross negligence. The
Consultant makes no warranties, representations or guarantees regarding any
financing attempted by the Corporation or the eventual effectiveness of the
services provided by Consultant. The Corporation shall hold the Consultant and
the agents and employees of the Consultant free and harmless from any and all
obligations, costs, claims, judgements, attorneys fees, and attachments arising
from or growing out of the services rendered to the Corporation pursuant to the
provisions of this Agreement or in any way connected with or relating to the
rendering of said services, except when the same shall arise because of the
gross negligence of the Consultant, and the Consultant is adjudged to be guilty
of the gross negligence by a court of competent jurisdiction.
7. CASH COMPENSATION.
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a. The Consultant shall not receive from the Corporation any cash
consideration.
8. STOCK.
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a. The Consultant shall receive a total of One Million Two Hundred Fifty
Thousand Shares of the Corporation's common stock to be registered in the
Corporation's initial SB-2 registration or other similar type registration
statement. The stock will be duly authorized, fully paid and non-assessable and
will also contain other customary terms and conditions, and as a result of the
SB-2 or similar registration the Shares shall be freely tradeable.
9. WARRANTS.
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a. The Consultant shall not be entitled to any warrants.
10. OPTIONS.
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a. The Consultant shall not be entitled to any options.
11. EXPENSES. In addition to the fees as set forth above, the Corporation
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will reimburse Consultant, promptly upon request from time to time, for its
reasonable out-of-pocket expenses incurred in connection with this Agreement,
including fees and expenses of its legal counsel. Consultant cannot guarantee
the total amount of fees and expenses of both Consultant and the Corporation for
legal, accounting, printing, travel, entertainment and other similar costs
connected with this Agreement nor does Consultant agree to limit its expenses;
provided, however, that (1) reasonable and justifiable expenditures for legal,
accounting, travel, sales meetings, entertainment and the like will be discussed
with and agreed upon by the Corporation in advance; (2) no expenses incurred by
any person other than Consultant, its employees and counsel will be reimbursable
by the Corporation without its prior approval; and (3) no part of Consultant's
general and administrative expenses will be allocated to the services provided
under this Agreement nor will a request for reimbursement of such expenses be
forwarded to the Corporation.
12. PAYMENT OF FEES AND ADDITIONAL COMPENSATION. Notwithstanding anything
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to the contrary contained herein, the provisions concerning the Corporation's
obligations to pay fees, issue warrants, options, stock and pay or reimburse
expenses contained herein will survive any such expiration or termination of
this Agreement.
13. MINIMUM AMOUNT OF SERVICE. Any provision of this Agreement to the
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contrary notwithstanding, the Consultant shall devote only so much time to the
affairs of the Corporation as the Consultant, with the approval of Corporation,
determines to be necessary or appropriate; and the Consultant may represent,
perform services for, and be employed by, any additional persons as the
Consultant, in the Consultant's sole discretion, determines to be necessary or
appropriate.
14. CHANGE OF CONTROL. Any provision of this Agreement to the contrary
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notwithstanding, in the event the Corporation experiences either a "change in
control" transaction, including, but not limited to, a merger, acquisition or
sale of a controlling interest in the Corporation, the terms and conditions of
this Agreement shall remain in effect and in full force, and such action by the
Corporation shall not in any way diminish, affect or compromise the Consultant's
rights, including but not limited to, all compensation as described in Sections
7,8,9,10 and 11 herein, as specified in this Agreement.
15. HOLD HARMLESS. The Corporation and the Consultant also mutually
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agree to indemnify and hold harmless each party and each of its affiliates,
counsel, stockholders, directors, officers, employees and controlling persons,
within the meaning of Section 15 of the Securities Act of 1933, as amended, or
Section 20 of the Securities Exchange Act of 1934, for any violations of state
or federal securities laws by either party or any of its officers, other
employees, agents, affiliates, counsel, stockholders, directors, and controlling
persons.
16. CORPORATE DOCUMENTS. The Corporation will provide and deliver to
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Consultant, at the Corporation's expense, all documents, appraisals,
projections, financial data, and other information, collectively referred to
herein as "Information", reasonably requested by Consultant for the purpose of
rendering merchant banking, consultant and financial services hereunder. All
Information provided by the Corporation shall be accurate and complete, in all
material respects, and the Corporation recognizes and confirms that (a)
Consultant will use and rely on the Information without having independently
verified all of the same and (b) Consultant does not assume responsibility for
the accuracy or completeness of the Information.
17. CONFIDENTIALITY. Consultant agrees to keep confidential all
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material, non-public information provided to it by the Corporation, except as
required by law or as contemplated by the terms of this Agreement.
Notwithstanding anything to the contrary herein, Consultant may disclose
non-public information to its agents and advisors whenever Consultant determines
that such disclosure is necessary or advisable to provide the services
contemplated hereunder. Consultant shall inform all parties who receive
disclosure of non-public information or who have access to such information of
the obligation of confidentiality, and shall inform the Corporation of any
disclosure of non-public information to any party other than Consultant's
independent public accountants or attorneys.
18. FAILURE TO ACT BY ONE PERSON. Any direction or consultation given
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or service performed by one of the persons acting on behalf of the Consultant,
pursuant to the provisions of this Agreement, shall constitute the direction or
consultation or the performance of service of the Consultant. If, for any
reason, any person acting on behalf of the Consultant is unable or unwilling to
act or perform pursuant to the provisions of this Agreement, that event shall
not void this Agreement or diminish its effect; and the performance by any
person acting on behalf of the Consultant shall constitute full and complete
performance of this Agreement on the part of the Consultant.
19. INDEMNIFICATION. In addition to the limitation of liability
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contemplated by the provisions of Paragraph 6 and Paragraph 15 of this
Agreement, the Corporation shall save the Consultant harmless from and against
and shall indemnify the other for any and all liabilities, losses, costs,
expenses, or damages howsoever caused by reason of any injury (whether to body,
property, or personal or business character or reputation) sustained by any
person or to any person or to property by reason of any act, neglect, default,
or omission of the Consultant or any of the Consultant's agents, employees, or
other representatives in Consultant's carrying out its duties as defined in this
Agreement as a result of any misrepresentation or misconduct by the Corporation.
In the event the Consultant is sued in any court for damages by reason of the
Consultant's relationship with the Corporation and as a result of any
misrepresentation or misconduct by the Corporation, the Corporation shall defend
that court action (or cause that court action to be defended), at the
Corporation's sole expense and the Corporation shall pay and discharge any
judgment that may be rendered in any such court action. In the event the
Corporation fails or neglects to defend the Consultant in any such court action,
the Consultant may defend such court action and any expenses, including
attorney's fees, which the Consultant may pay or incur in defending any such
court action and the amount of any judgment which the Consultant may be required
to pay shall be reimbursed promptly by the Corporation to the Consultant upon
demand therefor by the Consultant.
20. EQUITABLE REMEDIES. As a result of the uniqueness of the services
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to be performed by the Consultant for the Corporation, and because the
Consultant's reputation in the community may be affected by the financial
success or failure of the Corporation, in addition to the other rights and
remedies that the Consultant may have for a breach of this Agreement, the
Consultant shall have the right to enforce this Agreement, in all of its
provisions, specific performance, or other relief in a court or equity.
21. RELATIONSHIP CREATED. The Consultant is not an employee of the
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Corporation for any purpose whatsoever, but is an independent contractor. The
Consultant is not an affiliate of the Corporation as defined in the Securities
Act of 1933, as amended, or the Securities Act of 1934, as amended. The
Corporation is interested only in the results obtained by the Consultant, who
shall have the sole control of the manner and means of performing pursuant to
this Agreement. The Corporation shall not have the right to require the
Consultant to collect accounts, investigate customer complaints, attend
meetings, periodically report to the Corporation, follow prescribed itineraries,
keep records of business transacted, make adjustments, conform to particular
policies of the Corporation, or do anything else which would jeopardize the
relationship of independent contractor between the Corporation and the
Consultant, nor shall the Corporation do anything that would in any way cause
the Consultant to be classified as an affiliate as defined in the Securities Act
of 1933, as amended, or the Securities Act of 1934, as amended.
22. CONSULTANT'S REPRESENTATIVES. The Consultant shall have the right to
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appoint or otherwise designate suitable and desirable employees, agents and
representatives ("Consultant's Representatives"). The Consultant shall be
solely responsible for the Consultant's Representatives and their acts. The
Consultant's Representatives shall be at the Consultant's own risk, expense and
supervision, and the Consultant's Representatives shall not have any claim
against the Corporation for salaries, commissions, items of cost, or other form
of compensation or reimbursement. The Consultant represents, warrants, and
covenants that the Consultant's Representatives shall be subordinate to the
Consultant and subject to each and all of the terms, provisions and conditions
applying to the Consultant specified in this Agreement.
23. RECOVERY OF LITIGATION COSTS. If any legal or equitable action or
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other proceeding is commenced for the enforcement or interpretation of this
Agreement, or because of an alleged dispute, breach, default or
misrepresentation regarding any of the provisions of this Agreement, the
successful or prevailing party in such action or proceeding shall be entitled to
recover reasonable attorneys' fees and all costs incurred in such action or
proceeding, in addition to any other relief to which such party may be entitled.
24. GOVERNMENTAL RULES AND REGULATIONS. The provisions of this Agreement are
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subject to any and all present and future orders, rules and regulations of any
duly constituted authority having jurisdiction of the relationship contemplated
by the provisions of this Agreement.
25. NOTICES. All notices, requests, demands or other communications
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pursuant to this Agreement shall be in writing or by telex or facsimile
transmission and shall be deemed to have been duly given (i) on the date of
service, if delivered in person or by telex or facsimile transmission (with the
telex or facsimile confirmation of transmission receipt acting as confirmation
of service when sent and provided telexed or telecopied notices are also mailed
by first class, certified or registered mail, postage prepaid); or (ii) 48 hours
after mailing by first class, registered or certified mail, postage prepaid, and
properly addressed as follows:
If to the Corporation:
Technology Connections, Inc.
13777 Ballantyne Xxxxxxxxx Xxxx, Xxxxx 000
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Telecopier: 704.944.3201
If to the Consultant:
The Corporate Solution, Inc.
000 Xxxxx Xxxxxx Xxxxxx, Xxxxx 000
Xxxxxx Xxxx, Xxxxxx 00000
Telecopier: 909.471.0829
or at such other address as the party affected my designate in a written notice
to such other party in compliance with this paragraph.
26. ENTIRE AGREEMENT. This Agreement supersedes any and all other
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agreements, either oral or in writing, between the parties regarding the subject
matter of this Agreement and specifies all the covenants and agreements between
the parties with respect to that subject matter, and each party acknowledges
that no representations, inducements, promises, or agreements, orally or
otherwise, have been made by any party, or anyone acting on behalf of any party,
which are not specified in this Agreement; and any other agreement, statement or
promise concerning the subject matter specified in this Agreement shall be of no
force or effect in a subsequent modification in writing signed by the party to
be charged.
27. SEVERABILITY. In the event any part of this Agreement, for any reason,
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is determined to be invalid, such determination shall not affect the validity of
any remaining portion of this Agreement, which remaining portion shall remain in
complete force and effect as of this Agreement had been executed with the
invalid portion of this Agreement eliminated. It is hereby declared the
intention of the parties that the parties would have executed the remaining
portion of this Agreement without including any such part, parts or portion
which, for any reason, hereafter my be determined invalid.
28. CAPTIONS AND INTERPRETATION. Captions of the paragraphs of this
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Agreement are for convenience and reference only, and the words contained in
those captions shall in no way be held to explain, modify, amplify or aid in the
interpretation, construction or meaning of the provisions of this Agreement.
The language in all parts to this Agreement, in all cases, shall be construed in
accordance with the fair meaning of that language as if that language was
prepared by all parties and not strictly for or against any party.
29. FURTHER ASSURANCES. Each party shall take any and all action necessary,
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appropriate or advisable to execute and discharge such party's responsibilities
and obligations created by the provisions of this Agreement and to further
effectuate, perform and carry out the intents and purposes of this Agreement and
the relationship contemplated by the provision of this Agreement.
30. NUMBER AND GENDER. Whenever the singular number is used in this
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Agreement, and when required by the context, the same shall include the plural,
and vice versa; the masculine gender shall include the feminine and neuter
genders, and vice versa; and the word "person" shall include corporation, firm,
trust, association, governmental authority, municipality, association, sole
proprietorship, joint venture, association, organization, estate, joint stock
company, partnership, or other form of entity.
31. EXECUTION IN COUNTERPARTS. This Agreement may be prepared in
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multiple copies and forwarded to each of the parties for execution. This
Agreement shall become effective when the Consultant receives a copy or copies
of this Agreement executed by the parties in the names as those names appear at
the end of this Agreement. All of the signatures of the parties may be affixed
to one copy or to separate copies of this Agreement and when all such copies are
received and signed by all the parties, those copies shall constitute one
agreement, which is not otherwise separable or divisible. The Consultant shall
keep all of such signed copies and shall conform one copy to show all of those
signatures and the dates thereof and shall mail a copy of such conformed copy to
each of the parties within thirty (30) days after the receipt by such counsel of
the last signed copy, and shall cause one such conformed copy to be filed in the
principal office of the Consultant.
32. SUCCESSORS AND ASSIGNS. This Agreement and each of the provisions
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of this Agreement shall obligate and inure to the benefit the heirs, executors,
administrators, successors and assigns of each of the parties; provided,
however, nothing specified in this paragraph shall be a consent to the
assignment or delegation by any party of such party's respective rights and
obligations created by the provisions of this Agreement.
33. RESERVATION OF RIGHTS. The failure of any party at any time hereafter
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to require strict performance by any other party of any of the warranties,
representations, covenants, terms, conditions and provisions specified in this
Agreement shall not waive, affect or diminish any right of such failing party to
demand strict compliance and performance therewith and with respect to any other
provisions, warranties, terms and conditions specified in this Agreement. Any
waiver of any default not waive or affect any other default, whether prior or
subsequent thereto, and whether the same or of a different type. None of the
representations, warranties, covenants, conditions, provisions and terms
specified in this Agreement shall be deemed to have been waived by any act or
knowledge of either party or such party's agents, officers or employees, and any
such waiver shall be made only by an instrument in writing, signed by the
waiving party and directed to each non-waiving party specifying such waiver.
Each party reserves such party's rights to insist upon strict compliance with
the terms, conditions, warranties, obligations, representations, covenants and
provisions of this Agreement at all times.
34. CONCURRENT REMEDIES. No right or remedy specified in this
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Agreement conferred on or reserved to the parties is exclusive of any other
right or remedy specified in this Agreement or by law or equity provided or
permitted; but each such right and remedy shall be cumulative of, and in
addition to, every other right and remedy specified in this Agreement or now or
hereafter existing at law or in equity or by statute or otherwise, and may be
enforced concurrently therewith or from time to time. The termination of this
Agreement for any reason whatsoever shall not prejudice any right or remedy
which either party may have, either at law, in equity or pursuant to the
provisions of this Agreement.
35. CHOICE OF LAW AND CONSENT TO JURISDICTION. This Agreement shall be
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deemed to have been entered into in the State of Nevada, and all questions
concerning the validity, interpretation or performance of any of the terms,
conditions and provisions of this Agreement or of any of the rights or
obligations of the parties shall be governed by, and resolved in accordance
with, the laws of the State of Nevada. Any and all actions or proceedings, at
law or in equity, to enforce or interpret the provisions of this Agreement shall
be litigated in courts having situs within the State of Nevada, and each party
hereby consents expressly to the jurisdiction of any local, state or federal
court located within the State of Nevada and consents that any service of
process in such action or proceeding may be made by personal service upon such
party wherever such party may be then located, or by certified or registered
mail directed to such party at such party's last known address.
36. ASSIGNABILITY. Neither party shall sell, assign, transfer, xxxxx
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or encumber this Agreement or any right or interest in this Agreement or
pursuant to this Agreement, or suffer or permit any such sale, assignment,
transfer or encumbrance to occur by operation of law without the prior written
consent of the other party. In the event of any sale, assignment, transfer or
encumbrance consented to by such other party, the transferee or such
transferee's legal representative shall agree with such other party in writing
to assume personally, perform and be obligated by the covenants, obligations,
warranties, representations, terms, conditions and provisions specified in this
Agreement.
37. CONTINUING PROVISIONS. Notwithstanding anything to the contrary
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contained herein, the provisions concerning confidentiality, indemnification,
contribution and the Corporation's obligations to pay fees and pay or reimburse
expenses contained herein and in the indemnification provisions hereof will
survive any such expiration or termination of this Agreement.
38. FORCE MAJEURE.
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a. If any party is rendered unable, completely or partially, by the
occurrence of any event of "force majeure" (hereinafter defined) to perform such
party's obligations created by the provisions of this Agreement, other that the
obligation to make payments of money, such party shall give to the other party
prompt written notice of the event of "force majeure" with reasonably complete
particulars concerning such event; thereupon, the obligations of the party
giving such notice, so far as those obligations are affected by the event of
"force majeure", shall be suspended during, but no longer than, the continuance
of the event of "force majeure" The party affected by such event of "force
majeure" shall use all reasonable diligence to resolve, eliminate and terminate
the event of "force majeure" as quickly as practicable.
b. The requirement that an event of "force majeure" shall be remedied with
all reasonable dispatch as herein above specified, shall not require the
settlement of strikes, lockouts or other labor difficulties by the party
involved, contrary to such party's wishes, and the resolution of any and all
such difficulties shall be handled entirely within the discretion of the party
concerned.
c. The term "force majeure" as used herein shall be defined as and mean
any act of God, strike, civil disturbance, lockout or other industrial
disturbance, act of the public enemy, war, blockage, public riot, earthquake,
tornado, hurricane, lightening, fire, public demonstration, storm, flood,
explosion, governmental action, governmental delay, restraint or inaction,
unavailability of equipment, and any other cause or event, whether of the kind
enumerated specifically herein, or otherwise, which is not reasonably within the
control of the party claiming such suspension.
39. CONSENT TO AGREEMENT. By executing this Agreement, each party, for
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itself, represents such party has read or caused to be read this Agreement in
all particulars, and consents to the rights, conditions, duties and
responsibilities imposed upon such party as specified in this Agreement.
Executed at Carson City, Nevada, effective as of the date specified in the
preamble of this Agreement.
TECHNOLOGY CONNECTIONS, INC., THE CORPORATE SOLUTION, INC.,
A North Carolina corporation a Nevada corporation
By: /s/ Xxxxx X. Xxxxx By: /s/ Xxxxxx X. Xxxxxx
Xxxxx X. Xxxxx Xxxxxx X. Xxxxxx
President President
