CONSULTING AGREEMENT
THIS AGREEMENT ("AGREEMENT"), effective as of the 8th 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 Conertech Ltd ("THE
CONSULTANT") a company registered in Israel and having its principle place of
business at Em Hamoshavot 00, Xxxxxx Xxxxx, Xxxxxx
WHEREAS, Consultant is engaged in the business of providing services related to
the design and execution of alternative energy technology; 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
Em Hamoshavot 00, Xxxxxx Xxxxx, Xxxxxx
Email: Xxxxxx@xxxxxxxxx.xxx
Attention: Yochanan Yuval
SIGNATURES FOLLOW IN NEXT PAGE
IN WITNESS WHEREOF, the Parties have executed this Agreement as of the date
first set forth above.
Energtek Inc. Conertech Ltd.
By: Xxxxx Xxxxx By:
(Print Name) (Print Name)
Title: CEO Title:
Signature: ____________ Signature: ____________
EXHIBIT A
FORM OF TASK ORDER
CONSULTANT TASK ORDER NUMBER: 1
CONSULTANT PROJECT NUMBER: 2
This Task Order, dated 8th August 2006, is between Energtek Inc ("CORPORATION"),
and Conertech Ltd.. ("CONSULTANT").
WHEREAS, Consultant and Corporation have entered into that certain Consulting
Agreement dated 8th 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.
Energtek Inc. Conertech Ltd.
By: Xxxxx Xxxxx By: _________________
(Print Name) (Print Name)
Title:CEO Title:
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
Review of Industrial Processes for production of Photovoltaic Cells as per
Conertech's proposal.
APPENDIX 2: PROJECT SCHEDULE
Start of Project: 8th August 2006
End of Project: Not later than 31st August 2006
APPENDIX 3: PROJECT BUDGET
Twenty seven thousand (27,000) US Dollars
APPENDIX 4: PAYMENT SCHEDULE
Immediate Payment.
