Exhibit 10.8
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Consulting Agreement for Xxxxxxx Xxxxxxxx
CONSULTING SERVICES AGREEMENT
This Consulting Services Agreement (the "Agreement") is entered into this 10th
day of February, 2006 by and between Xxxx Giourard (hereinafter referred to as,
"Consultant"), and Vocalscape Networks, Inc., (hereinafter referred to as,
"Client"), a Nevada corporation, (collectively referred to as the "Parties")
with reference to the following:
Preliminary Statement: The Client desires to be assured of the association and
services of the Consultant in order to avail itself of the Consultant's
experience, skills, abilities, knowledge, and background to facilitate business
activities and is therefore willing to engage Consultant upon the terms and
conditions set forth herein. Consultant desires to be assured, and Client
desires to assure Consultant, that, if Consultant associates with Client and
allocates its resources necessary to provide Client with its consulting
services, Consultant will be paid the consideration described herein and said
consideration will be nonrefundable, regardless of the circumstances.
Consultant agrees to be engaged and retained by Client and upon the terms and
conditions set forth herein.
NOW, THEREFORE, in consideration of the foregoing, of the mutual promises
hereinafter set forth and for other good and valuable consideration, the receipt
and sufficiency of which are hereby acknowledged, the Parties hereto agree as
follows:
1. Engagement. Client hereby engages Consultant on a non-exclusive basis, and
Consultant hereby accepts the engagement to become a VoIP network and
business advisor to Client and to render such advice, consultation,
information, and services to the Directors and/or Officers of Client
regarding general business matters including, but not limited to the
following:
a. Development, planning and implementation of VoIP business
b. Advice on the development of a telephone system infrastructure
2. Compensation to Consultant. As express consideration for Consultant
entering into this Agreement, the Client shall, provided it has the funds
pay to Consultant, pay a retainer of $100,000. If funds are not available
for such retainer, then Client shall cause 100,000 shares of its common
stock, fully paid and non-assessable, to be issued to Consultant. All
certificates representing shares of common stock shall bear on the face
thereof substantially the following legend, insofar as is consistent with
Delaware and U.S. Securities law:
"The shares of Common stock represented by this certificate have not
been registered under the Securities Act of 1933, as amended, and may
not be sold, offered for sale, assigned, transferred or otherwise
disposed of unless registered pursuant to the provisions of that Act or
an opinion of counsel to the company is obtained stating that such
disposition is in compliance with an available exemption from such
registration."
Payment for retainer shall be issued and delivered to Consultant within
ten (10) days of Agreement.
NOTE: CLIENT EXPRESSLY AGREES THAT THE ENGAGEMENT FEE IS DEEMED EARNED
UPON DEIVERY OF SERVICES DURING THE TERM OF THIS AGREEMENT AND IS
THEREAFTER NONREFUNDABLE AND NON-CANCELABLE. CONSULTANT SHALL HAVE NO
OBLIGATION TO PERFORM ANY DUTIES PROVIDED FOR HEREIN IF FULL PAYMENT OF
THE ENGAGEMENT FEE IS NOT RECEIVED BY CONSULTANT WITHIN THE TIME DESCRIBED
HEREIN THIS SECTION 2.
3. Expenses. Client shall reimburse Consultant for reasonable expenses
incurred in performing its duties pursuant to this Agreement (including
printing, postage, express mail, photo reproduction, travel, lodging, and
long distance telephone and facsimile charges); provided, however, that
for any expenses over $100, Consultant must receive prior written approval
from Client. Such reimbursement shall be payable within seven days after
Client's receipt of Consultant's invoice.
4. Additional Fees. Client and Consultant shall mutually agree upon any
additional fees that Client may pay in the future for services rendered by
Consultant under this Agreement. Such additional agreement(s) may,
although there is no requirement to do so, be attached hereto and made a
part hereof as Exhibits beginning with Exhibit A.
5. Indemnification. The Client agrees to indemnify and hold harmless
Consultant against any and all liability, loss and costs, expenses or
damages, including but not limited to, any and all expenses whatsoever
reasonably incurred in investigating, preparing or defending against any
litigation, commenced or threatened, or any claim whatsoever or howsoever
caused by reason of any injury (whether to body, property, personal or
business character or reputation) sustained by any person or to any person
or property, arising out of any act, failure to act, neglect, any untrue
or alleged untrue statement of a material fact or failure to state a
material fact which thereby makes a statement false or misleading, or any
breach of any material representation, warranty or covenant by Client or
any of its agents, employees, or other representatives. Nothing herein is
intended to nor shall it relieve either party from liability for its own
willful act, omission or negligence. All remedies provided by law, or in
equity shall be cumulative and not in the alternative.
6. Confidentiality.
a. Consultant and Client each agree to keep confidential and provide
reasonable security measures to keep confidential information where
release may be detrimental to their respective business interests.
Consultant and Client shall each require their employees, agents,
affiliates, other licensees, and others who will have access to the
information through Consultant and Client respectively, to first
enter appropriate non-disclosure Agreements requiring the
confidentiality contemplated by this Agreement in perpetuity.
b. Consultant will not, either during its engagement by the Client
pursuant to this Agreement or at any time thereafter, disclose, use
or make known for its or another's benefit any confidential
information, knowledge, or data of the Client or any of its
affiliates in any way acquired or used by Consultant during its
engagement by the Client. Confidential information, knowledge or
data of the Client and its affiliates shall not include any
information that is, or becomes generally available to the public
other than as a result of a disclosure by Consultant or its
representatives.
7. Miscellaneous Provisions.
a. Amendment and Modification. This Agreement may be amended, modified
and supplemented only by written agreement of Consultant and Client.
b. Assignment. This Agreement and all of the provisions hereof shall be
binding upon and inure to the benefit of the parties hereto and
their respective successors and permitted assigns. The obligations
of either party hereunder cannot be assigned without the express
written consent of the other party.
c. Governing Law; Venue. This Agreement and the legal relations among
the parties hereto shall be governed by and construed in accordance
with the laws of the State of Nevada, without regard to its conflict
of law doctrine. Client and Consultant agree that if any action is
instituted to enforce or interpret any provision of this Agreement,
the jurisdiction and venue shall be the City of Carson City, Nevada.
d. Attorneys' Fees and Costs. If any action is necessary to enforce and
collect upon the terms of this Agreement, the prevailing party shall
be entitled to reasonable attorneys' fees and costs, in addition to
any other relief to which that party may be entitled. This provision
shall be construed as applicable to the entire Agreement.
e. Survivability. If any part of this Agreement is found, or deemed by
a court of competent jurisdiction, to be invalid or unenforceable,
that part shall be severable from the remainder of the Agreement.
f. Facsimile Signatures. The Parties hereto agree that this Agreement
may be executed by facsimile signatures and such signature shall be
deemed originals. The Parties further agree that within ten (10)
days following the execution of this Agreement, they shall exchange
original signature pages.
8. Arbitration. All disputes, controversies, or differences between Client,
Consultant, or any of their officers, directors, legal representatives,
attorneys, accountants, agents or employees, or any customer or other
person or entity, arising out of, in conjunction with or a result of this
agreement, shall be resolved through arbitration rather than through
litigation with respect to the arbitration of any dispute, the undersigned
hereby acknowledge and agree that:
a. Arbitration is final and binding on the Parties;
b. The Parties are waiving their right to seek remedy in court,
including their right to jury trial;
c. Pre-arbitration discovery is generally more limited and different
from court proceeding;
d. The arbitrator's award is not required to include factual findings
or legal reasoning and any Party's right of appeal or to seek
modification of ruling by the arbitrators is strictly limited;
e. This arbitration provision is specifically intended to include any
and all statutory claims which might be asserted by any Party;
f. Each Party hereby agrees to submit the dispute for resolution to the
American Arbitration Association, in Carson City, Nevada within five
(5) days after receiving a written request to do so from the other
party;
g. If either Party fails to submit the dispute to arbitration on
request, then the requesting Party may commence an arbitration
proceeding, but is under no obligation to do so;
h. Any hearing scheduled after an arbitrator is initiated shall take
place in the city of Carson City Nevada;
i. If either Party shall institute any court proceeding in an effort to
resist arbitration and be unsuccessful in resisting arbitration or
shall unsuccessfully contest the jurisdiction of any arbitration
forum located in the city of Carson City Nevada, over any matter
which is the subject of this agreement, the prevailing Party shall
be entitles to recover from the losing Party its legal fees and any
out-of-pocket expenses incurred in connection with the defense of
such legal proceeding or its efforts to enforce its rights to
arbitration as provided for herein;
j. The Parties shall accept the decision os any award as being final
and conclusive and agree to abide thereby;
k. Any decision may be filed with any court as a basis for judgment and
execution for collection.
9. Term/Termination. This Agreement is an agreement for the term of (12)
months ending January 10th, 2007 and is effective as of the date first
written above.
10. Representations, Warrants and Covenants. The Client represents, warrants
and covenants to the Consultant as follows:
a. The Client has the full authority, right, power and legal capacity
to enter into this Agreement and to consummate the transactions
which are provided for herein. The execution of this Agreement by
the Client and its delivery to the Consultant, and the consummation
by it of the transactions which are contemplated herein have been
duly approved and authorized by all necessary action by the Client's
Board of Directors and no further authorization shall be necessary
on the part of the Client for the performance and consummation by
the Client of the transactions which are contemplated by this
Agreement.
b. The business and operations of the Client have been and are being
conducted in all material respects in accordance with all applicable
laws, rules and regulations of all authorities which affect the
Client or its properties, assets, businesses or prospects. The
performance of this Agreement shall not result in any breach of, or
constitute a default under, or result in the imposition of any lien
or encumbrance upon any property of the Client or cause acceleration
under any arrangement, agreement or other instrument to which the
Client is a party or by which any of its assets are bound. The
Client has performed in all respects all of its obligations which
are, as of the date of this Agreement, required to be performed by
it pursuant to the terms of any such agreement, contract or
commitment.
11. Notices. Any notice or other communication required or permitted hereunder
must be in writing and sent by either (i) certified mail, postage prepaid,
return receipt requested and First Class mail; or (ii) overnight delivery
with confirmation of delivery; or (iii) facsimile transmission with an
original mailed by first class mail, postage prepaid, addressed as
follows:
If to the Client:
Attn: Xx. Xxx XxXxxxxx
Vocalscape Networks, Inc.
Xxxxx 000 0000 Xxxxxxxx
Xxxxxxxxx, X.X. X0X 0X0 Xxxxxx
Facsimile No.: (000) 000-0000
If to the Consultant:
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Fax: 000 000-0000
or in each case to such other address and facsimile number as shall have last
been furnished by like notice. If mailing is impossible due to an absence of
postal service, and other methods of sending notice are not otherwise available,
notice shall be hand-delivered to the aforesaid addresses. Each notice or
communication shall be deemed to have been given as of the date so mailed or
delivered, as the case may be; provided, however, that any notice sent by
facsimile shall be deemed to have been given as of the date sent by facsimile if
a copy of such notice is also mailed by first class mail on the date sent by
facsimile; if the date of mailing is not the same as the date of sending by
facsimile, then the date of mailing by first class mail shall be deemed to be
the date upon which notice given.
12. Counterparts. This Agreement may be executed simultaneously in one or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
13. Preliminary Statement. The Preliminary Statement is incorporated herein by
this reference and made a material part of this Agreement.
IN WITNESS WHEREOF, the Parties hereto have caused this Agreement to be duly
executed, all as of the day and year first above written.
CONSULTANT:
/s/ Xxxxxxx Xxxxxxxx
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Name: Xxxxxxx Xxxxxxxx
Date: February 10, 2006
CLIENT:
/s/ Xxx XxXxxxxx
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Vocalscape Networks, Inc.
Xxx XxXxxxxx,
Its: President
Date: February 10, 2006
