PROFESSIONAL SERVICES AGREEMENT
Exhibit10
This
Professional Services Agreement (the “Agreement”) is entered into as of , by and
among Xxxx
Xxxxxxxx (Consultant),
having a
principal place of business at 00000 Xxxxxxxxx Xxxxx, Xxxxxxxx, XX 00000 and
CS
Financing Corporation (Customer),
having
a principal place of business at 00
Xxxxx Xxxxx Xxxx., Xxxxx 000,Xxxxx Xxxxxx, Xxxxxxxxxx
00000
RECITALS
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A.
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Consultant
is in the business of providing business-consulting services for
its
customers.
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B. Customer
is in need of the Consultant’s services.
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C.
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Customer
desires Consultant to perform services under the terms and conditions
more
fully set forth below.
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AGREEMENT
NOW
THEREFORE, for good and valuable consideration, the receipt and sufficiency
of
which is hereby acknowledged, the parties agree as follows.
1.
PROFESSIONAL
SERVICES.
Consultant
shall perform the Services described in any Project Assignment attached hereto
(Exhibit A) in a workmanlike manner according to the schedule of work set forth
therein. A copy of the form of Project Assignment is attached hereto as
Exhibit
A
and
incorporated herein by reference ("Project Assignment"). Consultant and Customer
acknowledge that the terms of this Agreement will apply to all services
performed by Consultant for Customer even if a Project Assignment form has
not
been completed for a special assignment.
2.
PAYMENT
FOR SERVICES.
Customer shall pay Consultant the fee set forth in the Project Assignment for
the performance of the Services. Consultant shall submit monthly invoices to
Customer for the Services rendered. Customer shall pay Consultant within 15
days
of invoice date. At the time that Customer’s business expands and there is an
additional need for Consultant, Consultant shall submit monthly invoices to
Customer for services rendered. Customer shall pay within 15 days of invoice
date.
3.
RELATIONSHIP
OF PARTIES.
Consultant is an independent contractor and is not an agent or employee of
Customer, and has no authority whatsoever to bind Customer by contract or
otherwise. Consultant shall perform the Services under the general direction
of
Customer and shall devote its best efforts to the performance of the Services
to
the reasonable satisfaction of Customer. Notwithstanding, Consultant shall
determine, in Consultant’s
sole
discretion, the manner and means by which the Services are accomplished, subject
to the express condition that Consultant shall at all times comply with
applicable law.
4.
TRAVELS
AND EXPENSE.
Customer
shall reimburse Consultant for all ordinary, necessary, and reasonable travel
expenses incurred by Consultant while performing services on behalf of
Customer.
5.
FACILITIES.
Customer shall provide reasonable computer machine time, materials and any
other
services, which may be necessary to Consultant in connection with the
performance of the Services.
6.
TAXES
AND BENEFITS.
Consultant acknowledges and agrees that it shall be the obligation of Consultant
to report as income all compensation received by Consultant pursuant to this
Agreement. Consultant has the obligation to pay the personnel performing
services for the Customer, provide workers compensation insurance and withhold
the appropriate taxes and other payments from the compensation paid to
Consultant’s
personnel. Consultant shall indemnify Customer and hold it harmless to the
extent of any obligation imposed on Customer to pay any taxes or insurance,
including without limitation, withholding taxes, social security, unemployment,
or disability insurance, including interest and penalties thereon, in connection
with any payments made to Consultant by Customer pursuant to this
Agreement.
7.
CONFIDENTIALITY.
Consultant and Customer and their respective agents, directors, officers and
employees shall hold the other party’s
Confidential Information in strict confidence and not use on their own behalf
or
disclose such Confidential Information to any third parties. Consultant and
Customer and their respective agents, directors, officers and employees shall
deliver promptly all Confidential Information of the other party in their
possession upon the request of the other party. For purposes hereof,
"Confidential Information" includes all confidential and proprietary information
disclosed by either party including but not limited to software source code,
technical and business information relating to a party's current and proposed
products and services, research and development, production, manufacturing
and
engineering processes, costs, profit or margin information, finances, customers,
prospects, potential customers, suppliers, marketing and production, personnel
future business plans and any information marked confidential by either party.
"Confidential Information" also includes proprietary or confidential information
of any third party who may disclose such information to Consultant or Customer.
These obligations shall not apply to Confidential Information which is already
known to either party or its agents at the time it is disclosed, or which before
being divulged either (a) has become publicly known through no wrongful act
of
either party; (b) has been rightfully received from a third party without
restriction on disclosure and without breach of this Agreement; (c) has been
independently developed by the either party or its agents; (d) has been approved
for release by written authorization of either party; (e) has been disclosed
pursuant to a requirement of a governmental agency or of law.
8.
WARRANTY.
Consultant does not warrant the services will be error-free. If a particular
deliverable is found to be defective as a result of the work performed by
Consultant, Consultant’s
sole
obligation, at its option, under this warranty is to repair the defect or
develop a work around solution. NO OTHER WARRANTIES, EXPRESS OR IMPLIED,
INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OR MERCHANTABILITY AND
FITNESS FOR A PARTICULAR PURPOSE. NOTWITHSTANDING ANYTHING TO THE CONTRARY,
CONSULTANT SHALL NOT BE LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THIS
AGREEMENT UNDER ANY CONTRACT, STRICT LIABILITY, NEGLIGENCE OR OTHER LEGAL OR
EQUITABLE THEORY FOR ANY SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES OR LOST
PROFITS, OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, TECHNOLOGY OR
SERVICES.
9.
TERMS
AND TERMINATION.
This
Agreement shall commence on the date first written above and shall continue
until terminated as follows:
(a)
Either
party may terminate the Agreement in the event of a breach by the other party
of
any of its obligations contained herein if such breach continues uncured for
a
period of ten (10) days after written notice of such breach to the other
party;
(b)
Either
party may terminate this Agreement upon written notice to the other party if
either party is adjudicated bankrupt, files a voluntary petition of bankruptcy,
makes a general assignment for the benefit of creditors, is unable to meet
its
obligations in the normal course of business as they fall due or if a receiver
is appointed on account of insolvency;
(c)
Either
party may terminate this Agreement for its convenience upon fifteen (15) days
written notice to the other or if there is no outstanding Project Assignment.
Upon
the
termination of this Agreement for any reason, each party shall be released
from
all obligations and liabilities to the other occurring or arising after the
date
of such termination, except that any termination shall not relieve Consultant
or
Customer of their obligations under Paragraph
6
("Taxes
and Benefits"), Paragraph
7 ("Confidentiality"),
Paragraph 8 ("Right to Hire") and Paragraph
14
("General"), nor shall any such termination relieve Consultant or Customer
from
any liability arising from any breach of this Agreement.
10.
BINDING
ARBITRATION.
In
the
event a dispute of any kind or nature arises under this Agreement, any documents
executed in connection with this Agreement, or any matters related to this
Agreement, the parties shall, within ninety (90) days of the receipt by the
other party of a demand for arbitration, submit the dispute to binding
arbitration, through the San Francisco office of the American Arbitration
Association, under the Commercial Arbitration Rules of the American Arbitration
Association. In the event the parties are unable to agree upon an arbitrator,
the arbitrator shall be appointed in accordance with the rules and procedures
of
the American Arbitration Association. The fees for the arbitration proceedings
shall be forwarded by the party demanding arbitration. However, the arbitration
fee shall be paid or reimbursed by the non-prevailing party, as determined
by
the arbitrator, who shall also award appropriate attorney's fees and costs
to
the prevailing party.
11.
INDEMNIFICATION.
Customer
shall defend, indemnify and hold Consultant harmless from any and all damages,
liabilities, costs and expenses (including, but not limited to reasonable
attorneys' fees) incurred by Consultant as a result of (i) any breach of this
Agreement by Customer; or (ii) Customer’s violation of any governmental laws,
rules, orders or regulations. Consultant shall provide Customer with written
notice of the claim and permit Customer to control the defense, settlement,
adjustment or compromise of any such claim. Consultant may employ counsel at
its
own expense to assist it with respect to any such claim; provided, however,
that
if such counsel is necessary because of a conflict of interest of either
Customer or its counsel or because Customer does not assume control, Customer
will bear the expense of such counsel.
In
connection with this indemnification, the Customer agrees to insure Consultant
under the Directors and Officers insurance policy obtained by the Customer
at
the Customer’s expense.
12.
GENERAL
(a)
Assignment.
The
rights and liabilities of the parties hereto shall bind and inure to the benefit
of their respective successors, executors and administrators, as the case may
be.
(b)
Attorney's
Fees.
If any
action at law or in equity is necessary to enforce the terms of this Agreement,
the prevailing party shall be entitled to reasonable attorney's fees, costs
and
expenses in addition to any other relief to which such prevailing party may
be
entitled.
(c)
Governing
Law; Jurisdiction and Severability.
This
Agreement shall be governed by and construed in accordance with the laws of
the
State of California. The parties agree that the United Nations Conventions
on
Contracts for the International Sale of Goods is specifically excluded in its
entirety from application to this Agreement. Except as set forth in paragraph
12, the sole and exclusive jurisdiction for any dispute or legal brought in
connection with this agreement shall be the Superior Court of Santa Xxxxx County
or the Federal District Court Northern District of California. If any provision
of this Agreement is for any reason found by a court of competent jurisdiction
to be unenforceable, the remainder of this Agreement shall continue in full
force and effect.
(d) Counterpart.
This
Agreement may be executed in counterparts, each of which shall constitute an
original and all of which shall be one and the same instrument. A facsimile
copy
shall serve as an original.
(e)
Complete
Understanding Modification.
This
Agreement constitutes the full and complete understanding and Agreement of
the
parties hereto and supersedes all prior understandings and agreements. Any
waiver, modification or amendment of any provision of this Agreement shall
be
effective only in writing and signed by the parties thereto.
(f) Waiver.
The
failure of either party to insist upon strict compliance with any of the terms,
covenants or conditions of this Agreement by the other party shall not be deemed
a waiver of that term, covenant or condition, nor shall any waiver or
relinquishment of any right or power at any one time be deemed a waiver or
relinquishment of that right or power for all or any other time.
(g) Incorporation
by Reference.
Any
exhibits referred to within this Agreement shall be considered as incorporated
into, and part of, this Agreement.
| (h) |
Notices.
Any notices required or permitted hereunder shall be given to the
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appropriate
party at the address specified above or at such other address as the party
shall
specify in writing and shall be by personal delivery, facsimile transmission
or
certified or registered mail. Such notice shall be deemed given upon personal
delivery to the appropriate address or upon receipt of electronic transmission
or, if sent by certified or registered mail, three days after the date of the
mailing.
IN
WITNESS WHEREOF, the parties have executed this Agreement, effective as of
the
date and year first above written.
CONSULTANT: CUSTOMER:
Xxxx
Xxxxxxxx, CPA CS
Financing Corporation
___/s/
Xxxx Williams_______________________ ______/s/
Xxxxxxx X. Redpath____________________
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__Timothy
X. Xxxxxxx, CEO_____
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EXHIBIT
A
PROJECT
ASSIGNMENT
PURSUANT
TO PROFESSIONAL SERVICES AGREEMENT, DATED:
1. Project:
Xxxx
Xxxxxxxx shall render the following services for CS Financing Corporation:
· Upon
appointment by the board of directors of CS Financing Corporation, Xxxx Xxxxxxxx
shall accept said position and shall perform the duties of "Chief Financial
Officer" as described in its Bylaws, including specifically the
following:
Assist
and perform in a timely manner all day-to-day operations in accounting and
finance to include the following:
| 1. |
Supervise
the Customer’s accounting staff.
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| 2. |
Consult
with the Customer’s audit firm and legal firm in connection with the
preparation of the Customer’s annual audit and SEC
filings.
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| 3. |
Assist
in projecting and monitoring cash
burn.
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| 4. |
Assist
in the monthly close of corporate
books.
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| 5. |
Report
to the board of directors as requested.
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| 6. |
Implement
new controls, policies and procedures as
needed.
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2.
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Schedule
of Work:
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The
work
will commence on May 8th, 2007 and continue until termination of this
agreement.
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3.
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Fee
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The
fees
for the service provided by Xxxx Xxxxxxxx is $275 per hour.
CONSULTANT: CUSTOMER:
Xxxx
Xxxxxxxx, CPA CS
Financing Corporation
____/s/
Xxxx Williams______________________ ___/s/
Xxxxxxx X. Redpath_______________________
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__Timothy
X. Xxxxxxx, CEO_____
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