Exhibit 4.4
CONSULTING SERVICES AGREEMENT
This Consulting Services Agreement ("Agreement"), dated April 1st 2001, is made
by and between Xxx Xxxxxx, an individual ("Consultant"), whose address is 00
Xxxxxx Xx Xxxxxxx Xxxxx, X.X.X 0000 Xxxxxxxxx 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 extensive background and experience in the area of
creating secure Internet software frameworks, and is engaged by the company to
develop software related to the Bank Eyes Only System. 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
successfully launch the Bank Eyes Only system which is supported by the
eCashpad. 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
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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.
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.
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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 is payment for services previously rendered to Client
by Consultant for the period 04/01/2000 - 20/30/2000, and as such carries no
Termination and Payment terms.
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.
(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.
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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
00 Xxxxxx Xx Xxxxxxx Xxxxx
X.X.X 0000 Xxxxxxxxx
(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.
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.
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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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