CONSULTING AGREEMENT
Exhibit 10.3
This
CONSULTING AGREEMENT (this “Agreement”) is made and
entered into as of the February 8, 2017 (the "Effective Date"), by and
between Smart Server, Inc., a Nevada corporation (the "Company"), and Xxxxxx Xxxxxxxx
(the “Consultant” and together
with the Company the “Parties” and each a
“Party”).
WHEREAS, the
Company desires to engage the Consultant to perform certain
services upon the terms and conditions hereinafter set forth;
and
WHEREAS, the
Consultant is willing to make his expertise and experience
available to the Company upon the terms and conditions hereinafter
set forth.
NOW,
THEREFORE, in consideration of the mutual covenants and agreements
herein contained and other good and valuable consideration, the
receipt of which is hereby acknowledged, the Parties hereby agree
as follows:
1. Term; Termination. The term of
this Agreement shall commence on the date hereof and shall continue
until terminated (the “Term”). Either Party may
terminate this Agreement for any reason at any time, which
termination shall be effective upon delivery by the terminating
Party of a written notice to the other Party. The termination of
this Agreement shall be without prejudice to the rights and claims
of the Parties hereunder accrued prior to the
termination.
2. Services. The Consultant shall
provide the services set forth on Annex A to the Company and its
subsidiaries (“Services”). Such Services
shall include, but not be limited to, consulting with the
Company’s management, employees and representatives (whether
by phone or in person), attending meetings, and other
responsibilities inherent or ancillary to the
Services.
3. Fees. As sole compensation for
the Services, the Company hereby agrees to pay the Consultant
during the Term services fees at the rate of $5,000 per month (the
“Fees”). The Fees will be
prorated for the first and last month of the Term based on the
number of actual days included in the Term. The Fees with respect
to any month during the Term will be due and payable not later than
15 calendar days after the end of such calendar month.
4. Independent Contractor. In
performing the Services provided for hereunder, the Consultant is
acting as an independent contractor, and the Consultant's employees
at all times during the term of this Agreement shall be in the
employment, and under the supervision and responsibility, of the
Consultant and no person employed by the Consultant either directly
or indirectly shall be deemed by virtue of this Agreement to be the
servant, agent or employee of the Company or any affiliate of the
Company for any purpose whatsoever. The Company will not withhold
any monies for any state, local or federal taxing authorities from
compensation earned by the Consultant pursuant to this Agreement.
The Company shall prepare and file a Form 1099 with the Internal
Revenue Service reporting the compensation paid to the Consultant.
The Consultant shall receive no fringe benefits from the Company
whatsoever and will not be eligible for any medical, dental or
other health and welfare plans of the Company or its affiliates.
The Consultant shall be solely responsible for the payment of all
taxes on the amounts received or receivable by Consultant under
this Agreement.
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5. Indemnification. The Consultant
shall indemnify the Company and its affiliates and their respective
officers, directors, employees, stockholders, representatives,
members, managers, successors, assigns and agents and hold each of
them harmless, from and against and in respect of any and all
damage, loss, deficiency, liability, obligation, commitment, cost
or expense (including the reasonable fees and expenses of counsel)
resulting from, or in respect of, any taxes, penalties, interest or
other amounts related to the compensation received or receivable by
Consultant or its employees or affiliates hereunder.
6. Assignment. All of the terms of
this Agreement shall inure to the benefit of, be enforceable by and
be binding upon the parties hereto and their respective successors
and assigns; provided, that the Consultant
shall not have the right to assign his rights or duties hereunder
or any interest herein without the prior written consent of the
Company.
7. Notices. All notices, requests,
consents and other communications hereunder shall be in writing and
shall be deemed to have been duly given if sent by registered or
certified mail, return receipt requested, with first-class postage
fees prepaid, or if hand delivered against receipt or if sent via
facsimile transmission upon electronic confirmation of receipt
thereof during normal business hours, to the applicable Party at
the address indicated below:
If to
the Consultant:
Xxxxxx
Xxxxxxxx
0000
Xxxxxxxx Xxxxx
Xxxxx
000
Xxxxxx,
XX 00000
If to
the Company:
Smart
Server, Inc.
0000
Xxxxxx Xxxx
Xxxxx
000
Xxxxxxxxx, XX
00000
Attn:
Xxxxxx Xxxxxxx
With a
copy (which shall not constitute notice or services of process)
to:
Akerman
LLP
Three
Brickell City Centre
00 XX
0xx Xxxxxx, Xxxxx
0000
Xxxxx,
XX 00000
Attn:
Xxxxx X. Xxxxxxxxx
or, to
each Party, to such other address as shall be designated by such
Party in a written notice to the other Party pursuant to the
provisions of this Section 7.
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8. Severability. In the event any
part of this Agreement, for any reason, shall be finally adjudged
by any court of competent jurisdiction to be invalid, such judgment
shall not affect, impair or invalidate the remainder of this
Agreement and this Agreement shall be reformed consistent with the
original objectives of this Agreement. The invalidity of any part
or parts of this Agreement shall not relieve the parties from their
other duties and obligations under this Agreement.
9. Waiver. The failure of either
Party to enforce any provision of this Agreement or exercise any
right granted hereby shall not be construed to be a waiver of such
provision or right nor shall it affect the validity of this
Agreement or any part hereof or limit in any way the right of
either Party subsequently to enforce any such provision or exercise
such right in accordance with its terms.
10. No Third-Party Beneficiaries.
This Agreement shall be construed to be for the benefit of only the
parties hereto and shall confer no right or benefit upon any other
person based on the theory of third party beneficiaries or
otherwise.
11. Amendments. The terms of this
Agreement may be amended, modified, discharged, waived or
terminated only by a written instrument executed by both parties
or, in the case of a waiver, by the Party waiving compliance,
unless such waiver is conditional.
12. Titles and Headings. The titles
and headings included in this Agreement are inserted for
convenience only and shall not be deemed to be a part of or
considered in construing this Agreement, nor limit or otherwise
affect the meaning hereof.
13. Counterparts. This Agreement
may be executed simultaneously in two (2) or more counterparts,
each of which shall be deemed an original, and which together shall
constitute but one and the same instrument.
14. Entire Agreement. This
Agreement constitutes the entire agreement of the parties hereto
with respect to the subject matter hereof.
15. Several Remedies. Monetary
damages and losses would not be a sufficient remedy for any breach
of this Agreement by the Consultant. The Company shall be entitled
to equitable relief, including injunction and specific performance,
as a remedy for any such breach. Such remedies shall not be deemed
to be the exclusive remedies for a breach of this Agreement but
shall be in addition to all other remedies available at
law.
16. Applicable Law. This Agreement
shall be governed, interpreted and construed in accordance with the
laws of the State of Texas without regard to choice-of-law
principles thereof.
17. WAIVER OF JURY TRIAL. EACH
PARTY HERETO EXPRESSLY WAIVES ANY RIGHT IT MAY HAVE TO A JURY TRIAL
CONCERNING ANY CIVIL ACTION THAT MAY ARISE FROM THIS AGREEMENT OR
THE RELATIONSHIP OF THE PARTIES HERETO.
18.
CONSENT
TO JURISDICTION; SERVICE OF PROCESS. EACH PARTY HEREBY
IRREVOCABLY SUBMITS TO THE JURISDICTION OF THE STATE OR FEDERAL
COURTS LOCATED IN DALLAS COUNTY, TEXAS, IN CONNECTION WITH ANY
SUIT, ACTION OR OTHER PROCEEDING ARISING OUT OF OR RELATING TO THIS
AGREEMENT AND THE TRANSACTIONS CONTEMPLATED HEREBY, AND HEREBY
AGREES NOT TO ASSERT, BY WAY OF MOTION, AS A DEFENSE, OR OTHERWISE
IN ANY SUCH SUIT, ACTION OR PROCEEDING THAT THE SUIT, ACTION OR
PROCEEDING IS BROUGHT IN AN INCONVENIENT FORUM, THAT THE VENUE OF
THE SUIT, ACTION OR PROCEEDING IS IMPROPER OR THAT THIS AGREEMENT
OR THE SUBJECT MATTER HEREOF MAY NOT BE ENFORCED BY SUCH
COURTS.
* *
*
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IN
WITNESS WHEREOF, the parties hereto have caused this Consulting
Agreement to be duly executed on the date and year first above
written.
SMART
SERVER, INC.
By: /s/ Xxxxxxxx
Xxxxxxxx
Name:
Xxxxxxxx Xxxxxxxx
Title:
Chief Executive Officer
XXXXXX
XXXXXXXX
/s/ Xxxxxx
Xxxxxxxx
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ANNEX A
SERVICES
●
Act as the
Company's Chief Technology Advisor;
●
Provide advisory
services in support of the technology related aspects of the
Company's business;
●
Provide advisory
services related to the design and implementation of technology
platform necessary to operate the business;
●
Advise Company
project manager on Company’s efforts to design and implement
software offerings for dealer services;
●
Support overall
business planning strategy as requested by the CEO.
