CONSULTING SERVICES AGREEMENT
EXHIBIT
10.1
This
Consulting Services Agreement (“Agreement”), dated January 30, 2006, is made by
and between Xxxxx Coloris (“Consultant”), and SinoFresh HealthCare, Inc., a
Florida corporation (“Client”).
WHEREAS,
Consultant has extensive background in the area of preparing business plans
and
market research analysis;
WHEREAS,
Consultant desires to be engaged by Client to provide consulting services
regarding the preparation of a business plan and market research analysis on
the
terms and subject to the conditions set forth herein (the
“Services”);
WHEREAS,
Client is a publicly held corporation with its common stock shares trading
on
the Over the Counter Bulletin Board under the ticker symbol “SFSH,” and desires
to further develop its business and customers; and
WHEREAS,
Client desires to engage Consultant to provide the Services in its area 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 the Services. As such Consultant will provide
bona
fide services to Client including
consulting services regarding the preparation of a business plan, infrastructure
assessment, and market research analysis. 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 the Company's
securities.
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2. Consideration.
Client
agrees to pay Consultant, as his fee and as consideration for services provided,
one hundred thousand (100,000) shares of common stock of the Client, which
shall
have an agreed upon value of $0.25 per share.
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unpublished financial information, advertising revenues, usage rates,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.
(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.
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(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. Termination
and Renewal.
(a) Term.
This
Agreement shall become effective on the date appearing next to the signatures
below and terminate immediately upon Consultants completion of services. Unless
otherwise agreed upon in writing by Consultant and Client, this Agreement shall
not automatically be renewed beyond its Term.
(b) Termination.
Either
party may terminate this Agreement on thirty (30) calendar days written notice,
or if prior to such action, the other party materially breaches any of its
representations, warranties or obligations under this Agreement. Except as
may
be otherwise provided in this Agreement, such breach by either party will result
in the other party being responsible to reimburse the non-defaulting party
for
all costs incurred directly as a result of the breach of this Agreement, and
shall be subject to such damages as may be allowed by law including all
attorneys' fees and costs of enforcing this Agreement.
(c) Termination
and Payment.
Upon
any
termination or expiration of this Agreement, Client shall pay all unpaid and
outstanding fees through the effective date of termination or expiration of
this
Agreement. And upon such termination, Consultant shall provide and deliver
to
Client any and all outstanding services due through the effective date of this
Agreement.
7. Miscellaneous.
(a) Independent
Contractor.
This
Agreement establishes an “independent contractor” relationship between
Consultant and Client.
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(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 representa-tions, 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.
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(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.
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):
If
to
Client: SinoFresh
HealthCare, Inc.
000
Xxxx
Xxxxxx Xxxxx
Xxxxxxxxx,
Xxxxxxx 00000
With
a
copy to: Xxxxx
X.
Xxxx
The
Xxxx Law Group, PLLC
000
Xxxxx
Xxxxxx, Xxxxx 0000
Xxxxxxx,
Xxxxxxxxxx 00000
If
to
Consultant: _____________________
_____________________
_____________________
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(l) Governing
Law.
This
Agreement shall be governed by the interpreted in accordance with the laws
of
the State of Washington 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 Washington 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 7 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.
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.
CLIENT:
SinoFresh
HealthCare, Inc.
By
:
_________________________
Name:_______________________
Its:__________________________
CONSULTANT:
By:
Name:
Xxxxx Coloris
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