BUSINESS CONSULTING AGREEMENT
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THIS AGREEMENT (the "Agreement") is made and entered into by and
between Eyewear Online, Inc., a New York corporation (the "Company") and Cormax
Business Solutions, Ltd., an Alberta corporation (the "Consultant"); the Company
and the Consultant being hereinafter collectively referred to as the "Parties"
and generically, as a "Party."
PREAMBLE
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WHEREAS, the Consultant has substantial experience as an applications
service provider; and
WHEREAS, the Company desires to retain the Consultant's services to
provide the Company with a completely turn-key internet based business; and
WHEREAS, the Company is relying upon the Consultant's expertise in the
design, marketing implementation, operation and marketing of commercial internet
sits; and
WHEREAS, the Consultant is agreeable to such arrangement, subject to
the following terms and conditions:
NOW, THEREFORE, in consideration for the Consultant's agreement to
perform the hereinafter described services as well as of the premises, the sum
of TEN DOLLARS ($10.00), and other good and valuable consideration, the receipt
and adequacy of which is hereby acknowledged, the Parties, intending to be
legally bound, hereby agree as follows:
WITNESSETH:
ARTICLE ONE
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RETENTION
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1.1 Duties - General Purpose
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The Company hereby engages and retains the Consultant to act as its
exclusive agent to assist it in developing a comprehensive corporate plan and
structuring and developing a corporate website and such other related services
as the Consultant deems necessary to provide the Company with a turnkey business
system to conduct operations as envisioned by the Company's business plan which
has been discussed by the Parties.
1.2 Development Duties
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The Consultant's duties, which relate to the operation of the Company
and for which it will receive the compensation specified elsewhere in this
Agreement are:
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(a) To prepare a three-year Business Development plan acceptable
to the Company;
(b) To develop a new corporate website for the business to
business and business to consumer marketing and sales of
lenses, glasses, frames, sunglasses and related products (the
"Business");
(c) To complete the structure of a three-year e-commerce evolution
which will support the receipt and distribution of orders and
provide information ,for marketing, sales support and
accounting;
(d) To complete the structure of a three-year website and services
evolution;
(e) To provide ISP hosting services;
(f) To provide a customized billing collections software package
and related accounting software;
(g) To provide a customized distribution/logistics software
package;
(h) To provide a customized customer relationship management
software package;
(i) To develop a customized Database solution;
(j) To provide the necessary expertise involved in the selection,
of the Company's hardware, software, and bandwidth
requirements;
(k) To provide Web Master duties and facilities;
(l) To provide the Company with activity reports on the website
and current data base files at such frequency as the Company
deems reasonably necessary for the proper evaluation,
monitoring and control of it's business;
(m) To produce a master and manufacture not less than 500 copies,
at one time each contract year a ten-minute macro media Flash
marketing CD-ROM for the Company.
The Consultant shall at its sole cost and expense, provide all
necessary hardware, software, network infrastructure and personnel to accomplish
the foregoing in a timely and workmanlike manner. The Consultant further agrees
to hold the Company and it's officer, directors and consultants harmless for all
cost and expenses related to the vendors, including, but not limited to third
party vendors
1.3 Additional Duties
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(a) In the event the Company, requests that the Consultant render
services to it other than those specified in this Agreement,
the Company and the Consultant shall enter into a written
supplemental agreement setting forth the duties to be
performed and the compensation therefor.
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(b) The Consultant will provide the Company no less frequently
than monthly, with full documentation, passwords and graphic
sources necessary at all times to replicate the operations,
website and services for the services provided. It is the
Parties intention that the site and its operation at all times
will be `portable" so that it may be moved and replicated by
the Company at another ISP within thirty days written notice.
1n that regard the Consultant, upon notice; will take such
action as is necessary to transfer any domain names to the
Company.
(c) As requested by the Company, from time to time; the Consultant
will provide, at it's expense, all hardware and 'software
necessary to process the transaction flow generated by the
provided website, with sufficiently redundant systems to
assure that the site is not off-line for more than two hours
per day.
1.4 Term
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Subject to the provision of Section 2(d) below, the term of this
Agreement shall be for a period of thirty-six (36) months. and, will
automatically renew thereafter on a year-to-year basis unless either party
provides sixty (GO) days written notice of intent to terminate the Agreement.
ARTICLE TWO
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CONSULTANT'S COMPENSATION
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2.1 Compensation
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As compensation for the services to be provided pursuant to this
Agreement, the Consultant shall receive from the Company for the services herein
described, the following compensation.
(a) Company shall pay Consultant a total of $1,080,000 during the
three (3) year term of this Agreement contingent upon the
Company receiving funding from an approved registration of its
securities with the Securities and Exchange Commission.
(b) Upon receipt of the first $120,000, the Company will pay
Consultant fifty percent (50%) of the received funding, or up
to $60,000.
(c) At such time as the Company has received $800,000 in funding,
an additional $300,000 shall be paid. to complete the
Company's obligations under the first year of this Agreement.
Thereafter, subject to the Company's right to terminate the
Agreement in the manner set forth in Section 2.l(d), an
additional $720,000 will be due monthly at the rate of $30,000
per month starting on the first anniversary of the payment of
$300,000.
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(d) The Company shall terminate this Agreement upon 30 days notice
to Consultant any time eighteen months after its payment of
$300,000 to Consultant under Section 2.1(c) if the Company has
not raised financing of $750,000 in addition to the $1.4
million raised pursuant to its agreement with Alliance
Equities, Inc. dated on or about the date of this Agreement.
Such termination will be without further liability to
Consultant and Consultant shall deliver all property, records,
and all material related to the Business in the Consultant's
possession and control to the Company within thirty days of
written request, therefore
(e) All expenses not specifically set forth herein shall be
assumed by Company.
(f) Failure to make timely payments to Consultant shall be grounds
for immediate termination of this Agreement by Consultant,
only after Consultant delivers a!1 materials related to the
Business in the Consultant's possession and control to the
Company.
ARTICLE THREE
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REPRESENTATIONS AND WARRANTIES
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The Company hereby represents, warrants and covenants that it will keep
the Consultant fully informed of all material Company plans and developments,
that al1 such information will be true, and will not omit any information
necessary, in light of the information provided, to render such information not
misleading.
3.2 Consultant
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The Consultant hereby represents, warrants and covenants to the Company
that:
(a) Consultant is qualified to perform the services contemplated
by this Agreement;
(b) Consultant shall keep all information related to the Business
confidential for the term of this Agreement and for a period
of 3 months following it's termination; and
(c) Consultant shall not indirectly or directly compete with the
Business for the term of this Agreement and for a period of 12
months following it's termination; and
(d) All materials, graphics, designs, logos, software and other
forms of "intellectual property" used by the Consultant in
performing the services or provided to the Company shall be so
utilized under valid and fully paid licenses to do so.
Consultant hereby agrees to hold and defend the Company and all parties
controlling the Company from, any and all cost, expenses and damages relating to
the breach of the above warranties, including the cost of reasonable attorney's
fees.
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3.3 The Parties acknowledge that, except as herein set forth, there are no
representations or warranties of any kind.
ARTICLE FOUR
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MISCELLANEOUS
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4.1 Notices
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All notices, demands or other written communications hereunder shall be
in writing; and unless otherwise provided, shall be deemed to have been duly
given on the first business day after deposit with a reputable international
next-day courier, return receipt requested, postage prepaid, addressed as
follows:
TO CONSULTANT: Cormax Business Solutions, Ltd.
000 0xx Xxxxxx X.X., Xxxxx 000
Xxxxxxx, Xxxxxxx, Xxxxxx X0X 3ES
TO THE COMPANY: Eyeware Online, Inc.
X.X. Xxx 00
Xxxxxxxx, XX 00000
in each case; with copies to such other address or to such other persons as any
Party shall designate to the others for such purposes in the manner hereinabove
set forth.
4.2 Amendment
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No modification, waiver, amendment, discharge or change of this
Agreement shall be valid unless the same is in writing and signed by Parties.
4.3 Merger
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This instrument, together with the instruments referred to herein,
contains all of the understandings and agreements of the Parties with respect to
the subject matter discussed herein. All prior agreements whether written or
oral are merged herein and shall be of no force or effect.
4.4 Survival
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The several representations, warranties and covenants of the Parties
contained herein shall survive the execution hereof and shall be effective
regardless of any investigation that may have been made or may be made by or on
behalf of any Party.
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4.5 Severability
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If any provision or any portion of any provision of this Agreement,
other than a conditions precedent; if any; or the application of such
provision or any portion thereof to any person or circumstances shall be held
invalid or unenforceable, the remaining portions of such provision and the
remaining provisions of this Agreement or the application of such provision or
portion of such provisions is held invalid or unenforceable to persons or
circumstances other than those to which it is held invalid or unenforceable,
shall not be affected thereby.
4.6 Governing Law and Venue
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This Agreement shall be construed in accordance with the laws of the
State of New York and any proceeding arising between the Parties in any matter
pertaining or related to this Agreement shall, to the extent permitted by law,
be held in U.S. Federal Court or New York State Court located in Nassau County.
New York.
4.7 Litigation
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In any action between the Parties to enforce any of the terms of this
Agreement or any other matter arising from this Agreement, the prevailing Party
shall be entitled to recover its costs and expenses, including reasonable
attorneys' fees up to and including all negotiations, trials and appeals,
whether or not litigation is initiated.
4.8 Benefit of Agreement
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The terms and provisions of this Agreement shall be binding upon and
inure to the benefit of the Parties, jointly and severally, their successors,
assigns, personal representatives, estate, heirs and legatees.
4.9 Captions
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The captions in this Agreement are for convenience and reference only
and in no way define, describe, extend or limit the scope of this Agreement or
the intent of any provisions hereof.
4.10 Number and Gender
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All pronouns and any variations thereof shall be deemed to refer to the
masculine, feminine, neuter, singular or plural, as the identity of the Party or
Parties, or their personal representatives, successors end assigns may require.
4.11 Further Assurances
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The Parties hereby agree to do, execute; acknowledge and deliver or
cause to be done, executed, acknowledged or delivered and to perform all such
acts and deliver all such deeds, assignments, transfers, conveyances, powers of
attorney, assurances. stock certificates and other documents; as ,may, from time
to time, be required herein to effect the intent and purpose of this agreement.
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4.12 Status
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Nothing in this Agreement shall be construed or shall constitute a
partnership, joint venture, Employer-employee relationship or lessor-lessee
relationship but, rather, the relationship established pursuant hereto is that
of principal and independent contractor-agent.
4.13 Counterparts
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This Agreement maybe executed in any number of counterparts. All
executed counterparts shall constitute one Agreement notwithstanding that all
signatories are not signatories to the original or the same counterpart.
IN WITNESS WHEREOF, the Parties have executed this Agreement; effective
as of the 4th day of December, 2000.
Signed, Sealed & Delivered
in Our Presence EYEWEAR ONLINE, INC.
By: /s/ Xxxxxx Xxxxxx
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Xxxxxx Xxxxxx
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CORMAX BUSINESS SOLUTIONS LTD.
By: /s/ Xxxx Xxxxxxxx
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Xxxx Xxxxxxxx, President
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