CONSULTING AGREEMENT
THIS
AGREEMENT (“Agreement”),
effective as of the 25th
day of
August, 2006 (the "Effective
Date"),
by
and between Energtek
Inc.
(“the
Corporation”)
a
corporation registered in Nevada having its principle place of business at
00
Xxxx Xxxxxxxxx Xxxxxx, Xxxxxx Xxxxxx, Xxx Xxxx 00000 and P.G. Engineering S.A.
(“the
Consultant”)
a
company registered in Nevis and having its principle place of business at 0
Xxxxxxxxxxxxx Xxx., Xxxxx 000, Xxxx, Xxxxxxx.
WHEREAS,
Consultant is engaged in the business of providing engineering services and
performing R&D activities; and
WHEREAS,
the
Corporation 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 Corporation, 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
Corporation 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
Corporation 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
Corporation by the Consultant must be accompanied by appropriate
documentary evidence, such as receipts or other documentation reasonably
acceptable to the Corporation.
|
| 4.3. |
The
Corporation 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 Corporation 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
Corporation 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 Corporation 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 Corporation
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 Corporation or to the Corporation’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
Corporation 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 Corporation.
|
| 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 Corporation 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 Corporation, including,
inter
alia,
Corporation’s product research and development, Corporation’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 Corporation; (ii) as shown
by
written records, is received by the Consultant from a third party
exempt
from confidentiality undertakings towards the Corporation; (iii)
as shown
by written records, is independently created by the Consultant
without use
of Proprietary Information of the Corporation; 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 Corporation prompt notice thereof so that it may seek a protective
order or other appropriate remedy, after providing the Corporation
with
written notice.
|
|
7.2
|
The
Consultant will use the Proprietary Information solely to perform
the
Services for the benefit of the Corporation. The Consultant shall
treat
all Proprietary Information with the same degree of care as the
Consultant
accords to his own confidential and/or proprietary information,
and the
Consultant represents that it shall exercise reasonable care
to protect
its own confidential and/or proprietary
information.
|
|
7.3
|
Upon
termination of its engagement with the Corporation, the Consultant
will
promptly deliver to the Corporation all documents and materials
of any
nature pertaining to its work with the Corporation. 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 Corporation received and
will receive
confidential and/or proprietary information from third
parties subject to
a duty on the part of the Corporation 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
Corporation, except as may be necessary to perform its
duties hereunder.
Upon termination of its engagement with the Corporation,
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 Corporation Intellectual Property (as
defined
below) is work made for hire and will be the sole and exclusive
property
of the Corporation.
|
|
8.2
|
The
Consultant shall disclose promptly to the Corporation 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 Corporation with the Services and in connection
thereof
during the term of this Agreement (“Corporation
Intellectual Property”),
and hereby assigns and agrees to assign to the Corporation
or its nominee
all its interest, in any Corporation Intellectual Property.
The Consultant
agrees to assist the Corporation in every proper way to obtain
and enforce
patents, copyrights, mask work rights, and other legal protections
for the
Corporation Intellectual Property in any and all countries,
at the
Corporation's expense. Whenever requested to do so by the
Corporation, the
Consultant will execute any documents that the Corporation
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
Corporation 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 New York. All
disputes and claims arising under this Agreement or any Task Order shall be
resolved exclusively in a court of applicable jurisdiction located in the State
of New York, USA 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 Corporation 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 Corporation 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
Corporation.
|
|
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
Corporation:
|
Address:
00
Xxxx Xxxxxxxxx Xxxxxx, Xxxxxx Xxxxxx, Xxx Xxxx 00000
|
|
Email:
xxxxxxxxxx@xxxxx.xxx
|
|
Attention:
Xxxxx Xxxxx
|
If
to the
Consultant:
|
Address
0
Xxxxxxxxxxxxx Xxx., Xxxxx 000, Xxxx, Xxxxxxx
|
|
Email:
XxxxxxX@xxxxxxx.xxx
|
|
Attention:
Xxxxxx Xxxxxxxx
|
Signatures
follow in next page
IN
WITNESS WHEREOF, the Parties have executed this Agreement as of the date first
set forth above.
|
By:
Xxxxx Xxxxx
(Print
Name)
|
By:
Xxxxxx Xxxxxxxx
(Print
Name)
|
|
Title:
CEO
|
Title:
Director
|
|
Signature:
_______________
|
Signature:
_______________
|
EXHIBIT
A
FORM
OF TASK ORDER
Consultant
Task Order Number:
1
Consultant
Project Number:
3
This
Task
Order, dated 25th
August
2006, is between Energtek Inc (“Corporation”),
and
P.G. Engineering S.A. (“Consultant”).
WHEREAS,
Consultant and Corporation have entered into that certain Consulting Agreement
dated 25th
August
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
Corporation 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, Corporation 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.
|
Signatures
follow in next page
IN
WITNESS WHEREOF,
the
Parties have hereunto signed this Task Order effective as of the day and year
first written above.
|
By:
Xxxxx Xxxxx
(Print
Name)
|
By:
Xxxxxx Xxxxxxxx
(Print
Name)
|
|
Title:CEO
|
Title:
Director
|
|
Signature:
_______________
|
Signature:
_______________
|
List
of Appendices:
Appendix
1: Scope of Work
Appendix
2: Project Schedule
Appendix
3: Project Budget
Appendix
4: Payment Schedule
Appendix
1: Scope of Work
Conceptual
Design and specifications of special machine for testing of gas
adsorption
Appendix
2: Project Schedule
Start
of
Work: August 28, 2006
Delivery
Date: September 30, 0000
Xxxxxxxx
3: Project Budget
Six
thousand ($6,000) US Dollars
Appendix
4: Payment Schedule
The
payment is to take place not later than September 1st,
2006
