CONSULTING SERVICES AGREEMENT
Exhibit
10.1
This
Consulting Services Agreement (“Agreement”), dated July 9th, 2007,
is made by
and between Xxxxx Xxxxxx , an individual (“Consultant”), whose address is 00
Xxxx Xxxxxxxxxx XX
0000,Xxxxxx,Xxxxxxxxxxx and FreeStar Technology Corporation, a Nevada
corporation (“Client”), having its principal place of business at Torre
Empresarial, XXXX, La Xxxxx, Santo Xxxxxxx, Dominican Republic.
WHEREAS,
Consultant has extensive background in the area of business consulting and
management advisory services; The
Consultant is in the business of providing consultation and services
and the Client is a Payment Service Provider engaged in the business of credit
card processing for Merchants. The Consultant has developed and is developing
relationships with certain potential Merchants and acquiring Banks, in the
credit card processing industry. The parties wish to work together and to share
certain information and contacts in confidence in connection with the processing
services and the establishment and maintenance of processing relationships
between the Client and one or more Merchants and/or Banks.
WHEREAS,
Consultant desires to be engaged by Client to provide information, evaluation
and consulting services to the Client in his area 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 “FSRT,” and desires
to further develop its business and increase the value of its common stock;
and
WHEREAS,
Client desires to engage Consultant to provide information, evaluation and
consulting services to the Client in his area 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 in providing
general business consulting and management advisory services for
Client. As such Consultant will provide 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,
an option to purchase Seven Million (7,000,000) of free trading common stock
in
the Client, exercisable at ten cents ($0.10) per share, under
Client’s Amended and Restated Non-Employee Directors
and Consultants Retainer Stock Plan and Amended and Restated
Stock Incentive Plan. The shares underlying this option have been registered
under a post-effective Form S-8 Registration Statement filed with the U.S.
Securities and Exchange Commission on February 1st, 2007 and
declared
effective on that date 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. Indemnification.
(a) 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.
(b) 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.
5. 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.
6. Termination
and Renewal.
(a) Term.
This
Agreement shall become effective on the date appearing next to the signatures
below and terminate two (2) years thereafter. Unless otherwise agreed upon
in
writing by Consultant and Client, this Agreement shall not 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.
7. 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.
(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.
(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:
Xxxx
Xxxx , C.E.O
Freestar
Technologies
Torre
Empresarial, XXXX, La Xxxxx,
Santo
Xxxxxxx, Dominican Republic.
To
Consultant:
Xxxxx
Xxxxxx
00
Xxxx
Xxxxxxxxxx
XX
0000,
Xxxxxx,
Xxxxxxxxxxx.
(l) Governing
Law.
This
Agreement shall be governed by the interpreted in accordance with the laws
of
the State of Nevada 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.
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, 4, 5, and 7 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.
Freestar
Technology
Corporation
By
: /s/ Xxxx
Xxxx
Xxxx
Xxxx, C.E.O
By:
/s/
Xxxxx
Xxxxxx
Xxxxx Xxxxxx
