CONSULTING AGREEMENT
THIS
AGREEMENT (“Agreement”),
effective as of the 5th
day of
August, 2006 (the "Effective
Date"),
by
and between Energtek
Products Ltd.
(“the
Company”)
a
Company registered in Israel with address at 1 Azrieli Center, Xxxxx Xxxxx,
00xx Xxxxx, Xxx Xxxx 00000, Xxxxxx and Angstore Technologies Ltd (“the
Consultant”)
a
company registered in Israel with address at 0 Xxxxx Xx., Xxxxxxxx Xxxxxxxxxx
Xxxx, Xxxxxxxx, Xxxxxx
WHEREAS,
Consultant is engaged in the business of providing services related to the
design and execution of alternative energy technology; and
WHEREAS,
the
Company desires to engage the Consultant to perform certain services in the
field of alternative energy (“Services”)
as set
forth hereunder, all in accordance with and subject to the terms of this
Agreement;
NOW,
THEREFORE,
IN
CONSIDERATION OF THE PREMISES AND THE MUTUAL COVENANTS AND CONDITIONS
HEREINAFTER SET FORTH, THE PARTIES AGREE AS FOLLOWS:
| 1. |
PROJECT
SPECIFICATIONS
|
Consultant
hereby agrees to perform those precise services to be mutually agreed upon
by
the Parties and set forth in one or more task orders (each a “Task
Order”),
a
form of which is attached hereto as Exhibit
A.
Each
Task Order shall be signed by an authorized representative of each party and
shall include detailed information concerning a given project, including a
description of the specific services to be provided (“Scope
of Work”),
project milestones and target completion dates (“Project
Schedule”),
a
detailed budget (“Project
Budget”),
and a
schedule of payments related to the Project Schedule and the Project Budget
(“Payment
Schedule”).
| 2. |
PROJECT
SCHEDULE
|
| 2.1. |
Each
Task Order shall contain project timelines, milestones or target
dates for
completion of a project or a portion thereof, and all such schedules
shall
be reasonable for the Services to be provided. In all events, the
Parties
shall use their reasonable best efforts to comply with each Task
Order.
|
| 2.2. |
If
at any time either Party anticipates a delay in meeting the timelines
for
a given Task Order as set forth in its Project Schedule, either due
to
changes to the Services requested by the Company, or other causes,
then
the anticipating Party shall promptly notify the other Party in writing,
specifying the reason for the delay and the anticipated effect upon
the
timelines, milestones or other
deliverables.
|
| 3. |
CHANGE
ORDERS
|
Any
change in the details of a Task Order or the assumptions upon which the Task
Order is based may require changes in the Project Budget, Payment Schedule
or
Project Schedule. Every such change shall require a written amendment to the
Task Order (a “Change
Order”).
Each
Change Order shall detail the requested changes to the applicable task,
responsibility, duty, budget, timeline or other matter. The Change Order will
become effective upon the execution of the Change Order by both Parties, and
the
Change Order will specify
the period of time within which Consultant must implement the changes. Both
Parties agree to act in good faith and promptly when considering a Change Order
requested by the other party but neither party is obligated to execute a Change
Order. No Change Order shall become effective unless and until it is signed
by
both Parties.
| 4. |
PROJECT
BUDGET, PAYMENT SCHEDULE, AND
TERMS
|
| 4.1. |
The
Company agrees to pay the Consultant for the Services rendered pursuant
to
the Project Budget and Payment Schedules included in each Task
Order.
|
| 4.2. |
The
Company agrees to reimburse the Consultant for reasonable pass-through
expenses identified in the Task Order and incurred by the Consultant
in
providing the Services in accordance with the relevant Task Order,
up
until the pre agreed cap sum agreed ("Expenses")
as specified in the relevant Task Order. All Expenses billed to the
Company by the Consultant must be accompanied by appropriate documentary
evidence, such as receipts or other documentation reasonably acceptable
to
the Company.
|
| 4.3. |
The
Company shall pay the Consultant as specified in the relevant Task
Order
after receipt of a written invoice and required supporting documentation
as applicable.
|
| 5. |
REPORTS
|
The
Consultant shall submit to the Company on a monthly basis a report which shall
set forth in detail the following data for that period: (i) the nature and
the
results of the Services; (ii) Expenses (as defined herein) incurred; and (iii)
the number of hours and days during which the Services were
rendered.
| 6. |
TERMINATION
|
| 6.1. |
Either
party may terminate this Agreement without cause immediately upon
giving
the other party a 30 day prior written notice of such termination,
provided such termination shall not in and of itself affect any then
uncompleted Task Order.
|
| 6.2. |
As
soon as practicable, after receipt of such notice, the parties shall
cooperate in good faith to agree on a plan to expeditiously conclude
its
activities with respect to such matter. Consultant shall transfer
to the
Company all information in any and all formats available, including
electronic format and computer files and programs, in Consultant’s
possession.
|
| 6.3 |
The
Consultant may terminate a Task Order only if the Company has defaulted
on
its obligations hereunder and has not cured such default within
10 days
after written notice if the default is the failure to pay the Consultant
any amount due thereunder or within 30 days after written notice
in the
event of any other default, upon giving the Company notice of such
termination. As soon as practicable, after receipt of such notice,
the
parties shall cooperate in good faith to agree on a plan to expeditiously
conclude its activities with respect to such matter. The Consultant
shall
transfer to the Company or to the Company’s designee all information in
any and all formats available, including electronic format and
computer
files and programs, in Consultant’s
possession.
|
| 6.4 |
In
the event of any termination of a Task Order before completion,
the
Company agrees to pay the Consultant for all Services rendered
pursuant to
the unfinished Task Order prior to such termination and any non-cancelable
expenses incurred in connection with Consultant’s performance of Services
thereunder. As soon as reasonably practicable following receipt
of a
termination notice, Consultant shall submit an itemized accounting
of
Services performed, expenses incurred pursuant to performance
of the
Services, non-cancelable expenses incurred by Consultant relating
to any
unfinished Task Order, and payments received in order to determine
a
balance to be paid by either Party to the other. Such balance
shall be
paid within 45 days of receipt of such an itemized accounting
by the
Company.
|
| 7. |
CONFIDENTIALITY
|
| 7.1 |
The
Consultant shall not disclose or appropriate to its own use, or
to the use
of any third party, any Proprietary Information (as hereinafter
defined)
of the Company of which Consultant has been or hereafter becomes
informed,
whether or not developed by the Consultant.
“Proprietary
Information”
shall mean confidential and proprietary information concerning
the
business and financial activities of the Company, including, inter
alia,
Company’s product research and development, Company’s banking,
investments, investors, properties, employees, marketing plans,
customers,
trade secrets, and test results, processes, data, know-how, improvements,
inventions, techniques and products (actual or planned), whether
documentary, written, oral or computer generated. However,
excluded from the above is any information that (i) is or shall
become
part of the public knowledge except as a result of the breach of
Consultant's undertakings towards the Company; (ii) as shown by
written
records, is received by the Consultant from a third party exempt
from
confidentiality undertakings towards the Company; (iii) as shown
by
written records, is independently created by the Consultant without
use of
Proprietary Information of the Company; or (iv) the Consultant
is
compelled by court or government action pursuant to applicable
law to
disclose such information, provided, however, that the Consultant
gives
the Company prompt notice thereof so that it may seek a protective
order
or other appropriate remedy, after providing the Company with written
notice.
|
| 7.2 |
The
Consultant may terminate a Task Order only if the Company has
defaulted on
its obligations hereunder and has not cured such default within
10 days
after written notice if the default is the failure to pay the
Consultant
any amount due thereunder or within 30 days after written notice
in the
event of any other default, upon giving the Company notice
of such
termination. As soon as practicable, after receipt of such
notice, the
parties shall cooperate in good faith to agree on a plan to
expeditiously
conclude its activities with respect to such matter. The Consultant
shall
transfer to the Company or to the Company’s designee all information in
any and all formats available, including electronic format
and computer
files and programs, in Consultant’s
possession.
|
| 7.3 |
Upon
termination of its engagement with the Company, the Consultant
will
promptly deliver to the Company all documents and materials
of any nature
pertaining to its work with the Company. The Consultant
shall be entitled
to maintain a copy of such documents and materials for
archival purposes,
other than copies of any such documents or materials containing
any
Proprietary Information.
|
| 7.4 |
The
Consultant recognizes that the Company received and
will receive
confidential and/or proprietary information from third
parties subject to
a duty on the part of the Company to maintain the confidentiality
of such
information and to use it only for certain limited
purposes. The
exceptions set forth in Section 7.1 above shall apply
to such information,
mutatis mutandis. The Consultant undertakes to keep
and hold all such
information in strict confidence and trust, and it
will not use or
disclose any of such information without the prior
written consent of the
Company, except as may be necessary to perform its
duties hereunder. Upon
termination of its engagement with the Company, the
Consultant shall act,
with respect to such information, as set forth in Section
7.3, mutatis
mutandis.
|
| 7.5 |
The
Consultant’s undertakings under this Section 7 shall survive termination
of this Agreement or of any renewal
thereof.
|
| 8. |
INTELLECTUAL
PROPERTY RIGHTS
|
| 8.1 |
The
Consultant agrees that all Company Intellectual Property (as defined
below) is work made for hire and will be the sole and exclusive
property
of the Company.
|
| 8.2 |
The
Consultant shall disclose promptly to the Company or its nominee,
any and
all inventions, designs, original works of authorship, formulas,
concepts,
techniques, processes, formulas, trade secrets, discoveries and
improvements conceived or made by the Consultant in the course
of
providing the Company with the Services and in connection thereof
during
the term of this Agreement (“Company
Intellectual Property”),
and hereby assigns and agrees to assign to the Company or its
nominee all
its interest, in any Company Intellectual Property. The Consultant
agrees
to assist the Company in every proper way to obtain and enforce
patents,
copyrights, mask work rights, and other legal protections for
the Company
Intellectual Property in any and all countries, at the Company's
expense.
Whenever requested to do so by the Company, the Consultant will
execute
any documents that the Company may reasonably request for use
in obtaining
or enforcing or extending or renewing such patents, copyrights,
mask work
rights, trade secrets and other legal protections. The obligations
in this
Section 8 shall be binding upon Consultant’s assigns, executors,
administrators and other legal representatives.
|
| 8.3 |
Consultant’s
undertakings under this Section 8 shall remain in full force and
effect
after termination of this Agreement or any renewal thereof.
|
| 9. |
ENTIRE
AGREEMENT
|
This
Agreement contains the full understanding of the Parties with respect to the
subject matter hereof and supersedes all existing agreements and all other
oral,
written or other communications between the Parties concerning the subject
matter hereof. This Agreement shall not be amended, modified or supplemented
in
any way except in writing and signed by a duly authorized representative of
the
Company and the Consultant.
| 10. |
GOVERNING
LAW
|
This
Agreement and the performance hereof shall be governed, interpreted and
construed in all respects by the internal laws of the State of Israel. All
disputes and claims arising under this Agreement or any Task Order shall be
resolved exclusively in a court of applicable jurisdiction located in Tel Aviv,
Israel and each party consents to the venue of any such action.
| 11. |
NO
WAIVER
|
No
waiver
of any term, provision, or condition of this Agreement whether by conduct or
otherwise in any one or more instances shall be deemed to be or construed as
a
further or continuing waiver of any such term, provisions, or conditions, or
of
any other term, provision, or condition of this Agreement.
| 12. |
INDEPENDENT
CONTRACTOR
|
In
fulfilling its obligations pursuant to this Agreement, each Party shall be
acting as an independent contractor. Neither Party is granted any right or
authority to assume or to create any obligation or responsibility, expressed
or
implied, on behalf of or in the name of the other Party.
| 13. |
SEVERABILITY
|
In
the
event any provision of this Agreement shall be determined to be void or
unenforceable, the remaining provisions shall remain in full force and
effect.
| 14. |
ASSIGNMENT
|
|
14.1
|
Except
as set forth herein, neither Party shall assign this Agreement or
any Task
Order except with the express prior written consent of the other
Party.
|
|
14.2
|
Notwithstanding
anything contained herein: (i) the Company may assign this Agreement
and/or any Task Order to any Affiliate, provided that the assigning
Party
remains fully liable for all liabilities and obligations under this
Agreement and any such Task Order; (ii) the Company may assign this
Agreement and/or any Task Order to a Successor; and (iii) the Consultant
may engage one or more subcontractors to perform some or all of the
Services to be rendered, provided such are approved in advance by
the
Company.
|
|
14.3
|
As
used herein, “Affiliate” means in relation to a Party, any entity
controlling such Party, controlled by such Party, or under common
control
with such Party; and “Successor” means any entity which acquires all or
substantially all assets of a Party or any entity into which a Party
is
merged.
|
| 15. |
CONFLICTS
BETWEEN AGREEMENTS
|
In
the
event that there is any conflict between the provisions of this Agreement and
any duly executed Task Order, the duly executed Task Order (but not any
attachment there to) shall control.
| 16. |
COMMUNICATIONS
|
Each
notice, demand, request, approval or communication ("Notice")
which
is or may be required to be given by any party to any other party in connection
with this Agreement and the transactions contemplated hereby, shall be in
writing, and given by personal delivery, certified mail, return receipt
requested, prepaid, email or by overnight express mail delivery and properly
addressed to the party to be served at such address as set forth hereunder.
Notices shall be effective on the date delivered personally, the next day if
delivered by overnight express mail or by email or three days after the date
mailed by certified mail.
If
to the
Company:
|
Address:
Azrieli
Center, Xxxxx Xxxxx, 00xx Xxxxx, Xxx Xxxx 00000, Xxxxxx
|
|
Email:
XXXX@Xxxxxxxx.xxx
|
|
Attention:
Xxxxx Xxxxxxx
|
If
to the
Consultant:
|
Address
0
Xxxxx Xx., X.X.Xxx 0000, Xxxxxxxx 00000, Xxxxxx
|
|
Email:
xxxxxxxx@xxxxxxxx.xxx
|
|
Attention:
Xxxx Xxxxxxxx
|
Signatures
follow in next page
IN
WITNESS WHEREOF, the Parties have executed this Agreement as of the date first
set forth above.
|
Energtek
Products Ltd.
|
Angstore
Technologies Ltd.
|
|
By:
(Print
Name)
|
By:
(Print
Name)
|
|
Title:
|
Title:
|
|
Signature:
__________________
|
Signature:
__________________
|
EXHIBIT
A
TASK
ORDER
CONSULTANT
TASK ORDER:
5th
September 2006
This
Task
Order is between Energtek Products Ltd. (“Company”)
and
Angstore Technologies Ltd.. (“Consultant”).
WHEREAS,
Consultant and Company have entered into that certain Consulting Agreement
dated
5th
September 2006 (“Consulting
Agreement”);
and
WHEREAS,
pursuant
to the Consulting Agreement, Consultant has agreed to perform certain Services
in accordance with Task Orders from time to time entered into by the Parties
and
Company and Consultant now desire to enter into such a Task Order;
and
NOW,
THEREFORE,
in
consideration of the mutual covenants contained herein, the Parties hereby
agree
as follows:
| 1. |
Scope
of Work:
Consultant shall perform the Services described in the Scope of Work,
attached hereto as Appendix 1, in accordance with the Project Schedule,
attached hereto as Appendix 2 and any other documents attached to
and
specifically referenced in this Task Order (“Services”)
|
| 2. |
Compensation:
For performance of these Services, Company shall pay to Consultant
an
amount equal to the Project Budget set forth in Appendix 3, which
amount
shall be payable pursuant to the Payment Schedule set forth in Appendix
4.
|
| 3. |
The
provisions of the Consulting Agreement are hereby expressly incorporated
by reference into and made a part of this Task
Order.
|
IN
WITNESS WHEREOF,
the
Parties have hereunto signed this Task Order effective as of the day and year
first written above.
|
Energtek
Products Ltd.
|
Angstore
Technologies Ltd.
|
|
By:
(Print
Name)
|
By:
_________________
(Print
Name)
|
|
Title:
|
Title:
|
|
Signature:
_______________
|
Signature:
_______________
|
| List of Appendices: | |
|
Appendix 1: Scope of Work
Appendix 2: Project
Schedule
|
Appendix 3: Project Budget
Appendix 4: Payment
Schedule
|
Consulting
Agreement -
TASK ORDER
Page
1
Appendix
1: Scope of Work
CNG
Cylinders for Natural Gas Vehicles (NGV) - Detailed Review
| § |
Products
in the Market
|
| § |
Technological
Changes
|
Appendix
2: Project Schedule
Start
of
Project: 6th
September 2006
End
of
Project: Not later than 21th
September 2006
Appendix
3: Project Budget
Seventeen
thousand (17,000) US Dollars plus Value Added Tax
Appendix
4: Payment Schedule
| 1. |
Payment
of $8,500 plus Value Added Tax not later than September
11.
|
| 2. |
Additional
payment of $8,500 plus Value Added Tax upon delivery of
report
|
Consulting
Agreement -
Appendices
Page
1
