Exhibit 10.2
CONSULTING AGREEMENT
THIS CONSULTING AGREEMENT (this "Agreement") is made and entered
into as of this 1st day of May 1998, by and between X.X. XXXXXXXXX
CONSULTING, INC. ("Consultant") AND QCS CORPORATION (the "Company").
1. CONSULTING SERVICES. Consultant will provide to the Company
the consulting and advisory services (the "Consulting Services") more
particularly described in the Description of Consulting Activities attached
as Exhibit A to this Agreement.
2. CONSULTING FEES. In consideration of the Consulting Services,
the Company agrees to pay Consultant consulting fees at the rates and in
accordance with the terms specified in the Fee Schedule attached as Exhibit B
to this Agreement.
3. TERMS. The term of this Agreement shall commence as of the
date of this Agreement and shall terminate ninety (90) days receipt by a
party of the other party's written election to terminate this Agreement.
Either party may elect at any time and in its discretion to terminate this
Agreement, with or without cause.
4. EXPENSES. The Company shall reimburse Consultant for all
actual out-of-pocket expenses incurred by Consultant in the performance of
the Consulting Services. Travel by private automobile will be reimbursed at
the rate of Thirty-One Cents ($0.31) per mile. Expenses for out-of-town
travel must be approved in advance by the Company. Consultant shall prepare
and submit to the Company itemized expense reports (which shall include where
available receipts and comparable documentation) concurrent with Consultant's
monthly fee statements. The Company shall reimburse Consultant for such
expenses within ten (10) days after receipt of each expense report.
5. CONFIDENTIALITY. Consultant agrees to hold in confidence and
not disclose to any third party any of the Company's trade secrets or
proprietary information both during and after the term of this Agreement.
6. OWNERSHIP. The work product resulting from the Consulting
Services shall be and remain the property of the Company unless otherwise
agreed in writing by both parties.
7. INDEPENDENT CONTRACTOR. The parties intend that an
independent contractor relationship is created by this Agreement and that
Consultant is being retained by the Company only for the purposes and to the
extent set forth herein. Consultant shall not be considered an agent or
employee of the Company for any purpose and shall not be eligible to
participate or receive any type or form of insurance or benefits provided by
the Company to its employees. Consultant is free to provide consulting and
advisory services to others during the term of this Agreement.
8. RESPONSIBILITY FOR TAXES. As an independent contractor,
Consultant agrees that it is solely responsible for the payment of any taxes
and assessments imposed on account of the payment of compensation to
Consultant under this Agreement, including without limitation any
unemployment insurance tax, federal, state and foreign income taxes, federal
Social Security (FICA) payments, and state disability insurance taxes.
Consultant agrees to indemnify
and hold the Company and its employees harmless from any and all liability,
penalties and judgments arising out of Consultant's failure to make any
payment of taxes required to be paid by Consultant under this Paragraph 8.
9. NO AUTHORITY TO BIND. Consultant is not by this Agreement
granted any right or authority, express or implied, on behalf of or in the
name of the Company to bind the Company in any manner whatsoever unless
specifically requested by the Company. Similarly, Consultant shall not be
liable for or be deemed to have assumed any liability or obligation of the
Company, and the Company agrees to indemnify and hold Consultant and its
employees harmless from any and all liability, loss, damage, penalties and
judgments arising out of the Company's business and its operations.
10. MISCELLANEOUS.
(a) NO ASSIGNMENT. Neither party may assign this Agreement
without the prior written consent of the other.
(b) COMPLETE AGREEMENT. This Agreement contains the entire
agreement of the parties with respect to the subject matter hereof and
supersedes all previous oral and written agreements and all contemporaneous
oral negotiations, commitments, writings and understandings.
(c) GOVERNING LAW/JURISDICTION. This Agreement shall be governed
by, and construed in accordance with, the internal laws of the State of
California. Each party consents to the jurisdiction and proper venue of the
California State Courts and the Federal Court for the Central District of
California.
(d) NO WARRANTY/LIMITATIONS. No warranty is made by Consultant as
to the results of the Consulting Services to be provided hereunder and
Consultant and its employees shall have no liability as a result of such
Consulting Services or the Company's use thereof. In no event shall
Consultant, together with its employees, be liable for any amount under any
circumstances greater than the aggregate consulting fees actually paid to
Consultant by the Company during the term of this Agreement.
(e) MODIFICATIONS AND WAIVERS. No waiver or modification of this
Agreement shall be binding unless it is in a writing signed by both parties
hereto.
(f) SEVERABILITY. In the event any provision or provisions of
this Agreement is or are to be held invalid, the remaining provisions of this
Agreement shall not be affected thereby.
(g) LEGAL FEES. If any legal action, arbitration or other
proceeding is brought for the enforcement of this Agreement, or because of
any alleged dispute, breach or default in connection with this Agreement, the
successful or prevailing party shall be entitled to recover all of its costs
incurred in such action or proceeding, including without limitation its
attorneys' fees and disbursements, in addition to any other relief to which
it may be entitled.
(h) CONSTRUCTION. The language of this Agreement shall be
construed simply and according to its fair meaning, and shall not be
construed for or against any party hereto as a result of the source of its
draftsmanship.
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(i) NOTICES. All notices and other communications required or
permitted under this Agreement shall be in writing, served personally on, or
mailed by certified or registered United States mail to, the party to be
charged with receipt hereof. Notices and other communications served by mail
shall be deemed given hereunder seventy-two (72) hours after deposit of such
notice or communication in the United States Post Office as certified or
registered mail with postage prepaid and duly addressed to the receiving
party at the address set below such party's signature hereon, or at such
other address as such party has designated in a written notice given as
provided herein.
(j) EXHIBITS. The Exhibits to this Agreement are hereby
incorporated into and are an integral part of this Agreement as though fully
set forth herein.
X.X. XXXXXXXXX CONSULTING, INC. QCS CORPORATION
---------------------------------- ---------------------------------
BY: XXXXX X. XXXXXXXXX BY: MARCEL VAN HEESEWIJK
TITLE: PRESIDENT TITLE: PRESIDENT & CEO
ADDRESS: 0000 XXXXXXX XX XXXXXXXX XXXXXXX: 000 XXXXXX XXXXXX, XXXXX 000
XXXXXXX XXXXX, XX 00000 XXXXXXXX XXXX, XX 00000
ATTN: XXXXX X. XXXXXXXXX, PH.D. ATTN: MARCEL VAN HEESEWIJK
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EXHIBIT A
DESCRIPTION OF CONSULTING SERVICES
STATEMENT OF WORK
Consultant's efforts and work shall be primarily focused on the
following tasks and subject areas:
-Business and organizational planning
-Partnering relations
-Company positioning
-Marketing and sales planning
-General business matters
Consultant's efforts and work, in connection with this agreement,
shall be exclusive of consultant's work as an outside director of the Company.
LOCATION
Unless otherwise directed by the Company, all Consulting Services
will be conducted and performed either at Consultant's offices or the Company's
offices.
REPORTING
Consultant shall report to the following Company officer:
Marcel Van Heesewijk
President & CEO
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EXHIBIT B
FEE SCHEDULE
SCHEDULE OF FEES
----------------
Full Day: $1,500
Per Hour: $ 200
Agreed to by:
X.X. XXXXXXXXX CONSULTING, INC. QCS CORPORATION
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By: Xxxxx X. Xxxxxxxxx By: Marcel Van Heesewijk
Title: President Title: President & CEO
FEDERAL ID#: 00-0000000
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