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Exhibit 10.36
Consulting Agreement
CONSULTING AGREEMENT
THIS CONSULTING AGREEMENT is entered into as of the 2nd day of April, 1999,
("Effective Date"), to memorialize the oral agreement between quepasa!com, inc.,
a Nevada corporation (the "Company"), and Southwest Harvard Group Venture
Capital, L.L.C., an Arizona limited liability company (the "Consultant").
RECITALS
A. Consultant is a limited liability company involved in the business
of venture capital, and providing general management and consulting services
including but not limited to financial analysis including equity infusion
strategies, i.e. private placements and initial public offerings (IPO's), and
debt structuring (long and short-term), Board of Directors and Executive
Management evaluation, strategic planning, organizational analysis, financial
analysis, and business systems evaluation.
B. Company engaged the services of Consultant, and Consultant rendered
services to Company, on the terms and conditions set forth herein.
AGREEMENT
NOW, THEREFORE, for the reasons set forth above and in consideration of the
mutual promises and agreements hereinafter set forth, Company and Consultant
agree as follows:
1. Engagement of Services. Company retained the services of Consultant,
and Consultant rendered services to Company.
2. Term. This Agreement was effective as of the date above, and
terminated on a date mutually agreed by both parties.
3. Nature of Services Performed. During the term of this Agreement,
Consultant served Company as a Consultant with a jointly-defined scope of work
and performed all or part of the services as defined within this paragraph.
Services included the services of all consultants and agents as deemed
appropriate and necessary to successfully complete the services. It is
understood and agreed that the Consultant's services included advice and
recommendations, but all decisions in connection with the implementation of
such advice and recommendations has been the sole responsibility of, and made
by, the Company and its Board of Directors.
4. Compensation. As full compensation for services performed, Company
agrees to pay Consultant exactly 50,000 shares of par value (.001 per share)
common stock. These shares will be transferred directly from Company to
Southwest Harvard Group Venture Capital, LLC. Transfer date is defined as the
date immediately following the Effective Date of this Agreement.
5. Relationship Between Parties. The services of Consultant were
retained by Company only for the purposes and to the extent set forth in this
Agreement. Consultant's relationship to
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Consulting Agreement
Company, during the term of this Agreement, was that of an independent
contractor, and Consultant was free to dispose of his time, energy, and skill as
he deemed appropriate unless otherwise restricted by any other agreement between
Consultant and Company. Neither Consultant nor any employee or agent of
Consultant was considered, as a result of this Agreement, as having an agency or
employee status. Furthermore, Consultant retained the sole and absolute
discretion and judgment in the manner and means of rendering the consulting
services detailed by this Agreement.
6. Taxes, Workmen's Compensation, Fringe Benefits, Etc. Consultant will
pay all applicable federal and state income taxes and self-employment taxes with
respect to any amounts received by it under the terms of this Agreement. Unless
otherwise required by applicable law, Company shall not withhold from the
amounts paid to Consultant any amounts for federal or state income taxes or
social security taxes. Company did not provide any fringe benefits for
Consultant, including, but not limited to, vacation or sick pay, bonuses, life
insurance, health insurance or retirement benefits. Company did not cover
Consultant under any state unemployment compensation or workmen's compensation
laws.
7. Non Disclosure and Confidentiality. Consultant agrees not to
disclose, and to keep fully and strictly confidential, all trade secrets,
proprietary information, confidential information, and other business sensitive
information relating to the Company. Confidential information may take the form
of but is not necessarily limited to financial data, sales figures, projections,
estimates, customer lists, contractual data, teaming agreements, strategic
alliance agreements, tax records, personnel history, accounting procedures,
methods of business, and any other information not made public by the Company.
8. Limitation on Warranties. This is a services Agreement. The
Consultant warrants that it performed services hereunder in good faith. The
Consultant disclaims all other warranties, either express or implied, including,
without limitation, warranties or merchantability and fitness for a particular
purpose.
9. Limitation on Damages. Company agrees that Consultant and its
personnel shall not be liable to Company for any claims, liabilities or expenses
relating to this Agreement for an aggregate amount in excess of the fees paid by
Consultant pursuant to this Agreement, except to the extent finally judicially
determined to have resulted from the bad faith or intentional misconduct of
Consultant. In no event shall Consultant or its personnel be liable for
consequential, special, indirect, incidental, punitive or exemplary loss, damage
or expense relating to this Agreement. In furtherance and not in limitation of
the foregoing, Company will not be liable in respect of any decisions made by
Consultant as a result of the performance by Consultant of its services
hereunder. The foregoing provisions shall apply to the fullest extent of the
law, whether in contract, statute, tort (such as negligence) or otherwise.
10. Force Majeure. Consultant shall not be liable for any delays
resulting from circumstances or causes beyond its reasonable control, including,
without limitation, fire or other casualty, act of God, strike or labor dispute,
war or other violence, or any law, order or requirement of any governmental
agency or authority.
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Consulting Agreement
12 Notices. All notices, demands and other communications hereunder
shall be deemed have been duly give if delivered by hand or mailed, certified or
registered mail, with postage prepared, as follows:
To: quepasa!com
One Arizona Center
000 X. Xxx Xxxxx, 0xx Xxxxx
Xxxxxxx, XX 00000
Attention: Xx. Xxxxxxx X. Xxxxxxxx
To: Southwest Harvard Group Venture Capital L.L.C.
0000 X. Xxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxx 00000
Attention: Xx. Xxxx X. Xxxxxxxx
13. Successors and Assigns. This Agreement shall be binding upon and
shall inure to the benefit of the parties hereto and their respective heirs,
successors and assigns.
14. Limitation of Actions. No action, regardless of form, arising under
or relating to this Agreement, may be brought by either party more than one year
after the cause of action has accrued, except that an action for non-payment may
be brought by a party not later than one year following the date of the last
payment due to such party hereunder.
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Consulting Agreement
15. Arbitration. Any disputes associated with the performance of this
Agreement shall be subject to binding arbitration between and among both
parties. Therefore, the Company and Consultant agree to submit to binding
arbitration any and all claims, disputes and controversies between or among
them, whether in tort, contract or otherwise (and their respective employees,
officers, directors, attorneys and other agents) arising out of or relating to
in any way this Agreement. Such arbitration shall proceed in Phoenix, Arizona,
shall be governed by the Federal Arbitration Act (Title 9 of the United States
Code), and shall be conducted in accordance with the Commercial Arbitration
Rules of the American Arbitration Association ("AAA"). The arbitrator shall give
effect to statutes of limitation in determining any claim. Any controversy
concerning whether an issue is arbitable shall be determined by the arbitrator.
16. Attorneys' Fees. The prevailing party in any arbitration or other
proceedings arising out of this Agreement shall be reimbursed by the other party
for all costs and expenses incurred in such proceeding, including reasonable
attorneys' fees.
17. Severability. The invalidity of any portion of this Agreement shall
not affect the validity of the remaining portions which shall remain in full
force and effect.
18. Governing Law. This Agreement may not be amended or modified except
in writing signed by both the parties. This Agreement shall be construed under
and in accordance with the laws of the State of Arizona. Venue shall be in
Maricopa County, Arizona.
19. Amendments. This Agreement may not be amended or modified except in
writing signed by both the parties.
20. Entire Agreement. This Agreement contains the entire understanding
of the parties and supercedes any prior understandings and agreements, written
or oral, respecting the subjects discussed herein.
21. Time of the Essence. This is of the essence of this Agreement.
22. Counterparts. This Agreement may be executed in counterparts, each
of which, when executed, shall be deemed an original.
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Consulting Agreement
IN WITNESS WHEREOF, the parties hereto have entered into this Agreement
as of the date first written above.
COMPANY
QUEPASA!COM
By: /s/ Xxxxxxx X. Xxxxxxxx
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Xxxxxxx X. Xxxxxxxx
Its: Chairman and CEO
CONSULTANT
SOUTHWEST HARVARD GROUP VENTURE CAPITAL L.L.C.
By: /s/ Xxxx X. Xxxxxxxx
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Xxxx X. Xxxxxxxx
Its: President
