CONSULTING AGREEMENT
THIS
CONSULTING AGREEMENT
(“Agreement”) is made and entered into this 1st
day of
October , 2006, (“Effective Date”), between OmniReliant Corporation, to include
its parent, subsidiaries, affiliates, successors and assigns (“Company”), a
Florida corporation, and Xxxxxxxxxx Business Development, LLC (“Contractor”), a
Florida limited liability company and collectively referred to as
“Parties.”.
WITNESSETH:
WHEREAS,
Company is in the business of marketing and distribution of products via all
channels of distribution including but not limited to and by means of
by
means
of direct response television programming, media and channels of distribution,
including but not limited to retail, radio, catalog, Internet, Live Home
Shopping, credit card stuffers, now existing or hereafter developed.
WHEREAS,
Contractor is in the business of creating, producing and editing infomercials
and consulting on all aspect of marketing and distribution;
WHEREAS,
Company is interested in soliciting Contractor’s services and Contractor desires
to enter into a binding agreement with Company, in accordance with the terms
and
conditions set forth below.
NOW,
THEREFORE, in good and valuable consideration of the mutual covenants and
promises herein contained, the parties, each intending to be legally bound,
hereby agree as follows:
TERMS
AND CONDITIONS
ARTICLE
1: SERVICES TO BE PERFORMED BY CONTRACTOR
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1.01
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Contractor
shall serve Company by providing oversight on all aspects of business
involving the marketing of the Xxxxx Xxxxxx brand to include consultation
on marketing, visual and audio productions and help with employee
recruitment and dismissals. Such oversight shall not include the
day-to-day management of Company.
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1.02
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Contractor
shall comply with all applicable association, local, state, and federal
laws, ordinances, rules, regulations and
codes.
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| 1.03 |
Contractor
shall notify Company promptly of any existing or possible litigation,
which may be brought against Contractor regarding the services provided
to
Company.
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ARTICLE
2: COMPENSATION & TERM
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2.01
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Company
shall pay Contractor fifteen thousand dollars ($15,000.00) per month
for
six months, commencing with the execution of the Agreement.
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ARTICLE
3: TERM AND TERMINATION
| 3.01 |
Term. The
date of commencement of this Agreement shall be on the Effective
Date
first set forth above. Company shall re-evaluate the performance
of the
Contractor at the end of the first six months and every six months
thereafter at which time Parties shall mutually determine whether
to
extend the term of the contract. Contractor reserves the right to
renew or
renegotiate the terms of the Agreement or terminate at the end of
every
six month.
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3.02
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Immediate
Right to Terminate. Company shall have the right to immediately terminate
this Agreement by giving written notice to Contractor in the event
that
the Contractor does any of the
following:
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A.
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Files
a petition in bankruptcy or is adjudicated bankrupt or insolvent,
or makes
an assignment for the benefit of creditors, or an arrangement pursuant
to
any bankruptcy law, or if Contractor discontinues or dissolves its
business.
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B.
|
Makes
any change in the current management of Contractor that, in the opinion
of
the Company, would substantially impair Company’s rights under this
Agreement. Contractor has disclosed its current engagement as the
principals of Reliant International Media, LLC and the possibility
of
mergers and acquisitions in the future that shall not be a cause
for
Company to terminate.
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C.
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Engages
in any illegal, unfair, or deceptive business practices or unethical
conduct whatsoever.
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D. In
the
event of any sale of a majority interest in Contractor to a third party.
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3.03
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Company’s
right to terminate this Agreement pursuant to Section 3.02 shall
not
extinguish Company’s obligation to pay Contractor the compensation for the
duration of the Term, six months.
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3.04
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Termination
of Rights. On the termination of this Agreement, all obligations
of the
parties hereunder shall terminate, except for rights to payments
accrued
prior to such termination and the provisions applicable after
termination.
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ARTICLE
4: INDEMNIFICATION
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4.01
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Contractor
shall release, defend, indemnify, and hold Company and its parent,
affiliates, subsidiaries, officers, directors, agents, owners, employees,
trustees, successors and assigns harmless with respect to any claims,
actions, causes of action, damages, fines, expenses, court costs,
attorney
fees, liability damage or judgment suffered by Contractor or his
agents,
resulting from or attributable to any breach of Contractor’s or his
agent’s responsibilities, representations and warranties herein and/or
all
negligent acts or omissions of Contractor or his agents contained
herein.
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4.02
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Company
shall indemnify Contractor against all claims resulting from any
footage
and contents of the footage to include but not limit to testimonials
and
the persons providing such testimonials or any research and information
provided by Company.
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4.03
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These
indemnification obligations shall survive termination of this Agreement.
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ARTICLE
5: CONFIDENTIAL INFORMATION
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5.01
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Contractor
recognizes that it may be necessary for Contractor to receive Confidential
or Proprietary Information with regard to this Agreement. This
Confidential and Proprietary Information has been compiled by the
Company
at great expense and over a great amount of time. The Confidential
and
Proprietary Information is the sole and exclusive property of the
Company.
In performing the services under this Agreement, Contractor may be
provided or may otherwise come into the possession of proprietary
information, customer databases, customer leads, customer information,
product and service information, and other confidential information
regarding the business and services of Company (hereinafter, the
“Confidential Information”) all of which are valuable to Company or are
required by law or good business practices to be held confidential.
Contractor agrees to receive, hold and treat all Confidential Information
received from Company as confidential and secret and agrees to use
its
best efforts to protect the confidentiality and secrecy of such
Confidential Information. Contractor agrees to only divulge Confidential
Information to its employees who are required to have such knowledge
in
connection with the performance of their obligations under this Agreement,
and Contractor shall not disclose, directly or indirectly, any
Confidential Information whatsoever, including without limitation,
for its
own benefit or any third party’s benefit. Confidential Information does
not include information which (i) was or becomes generally available
to
the public, (ii) was or becomes available on a non-confidential basis,
provided that the source of such information was not bound by a
confidentiality agreement in respect thereof, (iii) was within
Contractor’s possession prior to being furnished by or on behalf of
Company, provided that the source of such information was not bound
by a
confidentiality agreement in respect thereof, or (iv) the information
is a
duplication of materials that Contractor already
possesses.
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5.02
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The
provisions of Section 6.01 shall also apply to Company in regards
to any
confidential information regarding the business and services of Contractor
in all aspects as set forth in Section
6.01.
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5.03
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Upon
termination of this Agreement, Contractor shall return all copies
of
Confidential Information, return all original documents and publicity
materials within five (5) days after this Agreement
terminates.
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5.04
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The
terms and conditions of this Agreement shall be considered Confidential
Information and shall not be revealed to another party until two
(2) years
on or after the date of termination. Additionally, Contractor agrees
that
it will not disclose any Confidential Information to any third party
and
will not use Confidential Information of the Company for any purpose
other
than for the performance of the rights and obligations hereunder
during
the terms of this Agreement and for a period of two (2) years thereafter,
without prior written consent of the disclosing party. Contractor
further
agrees that Confidential Information shall remain the sole property
of the
Company and that it will take all reasonable precautions to prevent
any
unauthorized disclosure of Confidential Information by its employees.
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ARTICLE
6: INDEPENDENT CONTRACTOR RELATIONSHIP
The
parties acknowledge and agree that in performance of the services under this
Agreement, Contractor is acting as an independent contractor, and all
Contractor’s employees, personnel and agents are not entitled to any Company
benefits, including but not limited to workers compensation. Nothing in this
Agreement shall be construed or deemed to create any joint venture, partnership,
agency, employer-employee or other relationship between the parties. All
personnel supplied by Contractor under this Agreement are not Company’s
personnel or agents, and Contractor assumes full responsibility for their acts.
Contractor is not an agent of the Company and shall not enter into any
agreements on behalf of the Company or bind the Company in any way. The rights
and obligations of the parties shall be limited to those expressly set forth
herein.
ARTICLE
7: PROPRIETARY INFORMATION
Company
shall have sole and exclusive ownership of all right, title and interest in
and
to Company’s Proprietary Information and Materials, including any derivative
works thereof, including ownership of all copyrights, trademarks, service marks,
patents, and trade secrets pertaining thereto (collectively, the “Proprietary
Information”). Contractor may use Company’s Confidential and Proprietary
Information and Materials, subject only to the rights and privileges expressly
granted by Company.
The
Confidential and Proprietary Information is considered to include valuable
trade
secrets of Company. Recipient acknowledges that, in the event of any breach
of
this Agreement, Company will not have an adequate remedy in money or damages.
Company therefore shall be entitled in such event to obtain an injunction
against such breach from any court of competent jurisdiction immediately upon
request. Company’s right to obtain such relief shall not limit its rights to
obtain other remedies.
ARTICLE
8: GENERAL PROVISIONS
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8.01
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Entire
Agreement. This Agreement supersedes any and all other agreements,
either
oral or in writing between the parties hereto with respect to the
terms
and conditions of this Agreement, and contains all of the covenants
and
agreements between the parties with respect to same. Each party to
this
Agreement acknowledges that no representation, inducements, promises,
or
agreements, orally or otherwise, have been made by any party, or
anyone
acting on behalf of any party, which are not embodied herein, and
that no
other agreement, statement, or promise not contained in this Agreement
shall be valid or binding on either party, except that any other
written
agreement dated concurrent with or after this Agreement shall be
valid as
between the signing parties
thereto.
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8.02
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No
Waiver. The failure of either party to insist on strict compliance
with
any of the terms, covenants or conditions of this Agreement by the
other
party shall not be deemed a waiver of that term, covenant or condition,
nor shall any waiver or relinquishment of any right or power at any
one
time or times be deemed a waiver or relinquishment of that right
or power
for all or any other times under this
Agreement.
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8.03
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Severability.
If any provision in this Agreement is held by a court of competent
jurisdiction to be invalid, void or unenforceable, the remaining
provisions shall nevertheless continue in full force without being
impaired or invalidated in any way.
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| 8.04 |
Notice.
Each notice, request or demand given or required to be given pursuant
to
this Agreement shall be in writing and shall be deemed sufficiently
given
if deposited in the United States mail, First Class, postage pre-paid,
and
addressed to the address of the intended recipient set forth below,
or to
such other address as may be specified in this Agreement or in writing
by
the parties:
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| If to Company: | Name: | Xxxxx Xxxxxxxx | |
| Address: | 0000 Xxxxxxxxxx Xxxx., Xxxxx 000 | ||
| Xxxxx, XX 00000 | |||
| Telephone: | (000) 000-0000 | ||
| Facsimile: | (000) 000-0000 | ||
| If to Contractor: | Name: | Xxx Xxxxxxxxxx | |
| Address: | 11880 00 Xxxxxx X. | ||
| Xx. Xxxxxxxxxx, XX 00000 | |||
| Telephone: | (000) 000-0000 | ||
| Facsimile: | (000) 000-0000 |
8.05 Governing
Law and Attorney Fees. This Agreement shall be deemed to have been made in
the
State of Florida. This Agreement and all matters arising out of or otherwise
relating to this Agreement shall be governed by the laws of the State of
Florida. The parties hereby submit to the personal jurisdiction of the state
and
federal courts of the State of Florida. Exclusive venue for any litigation
and
all claims arising from or in connection with the subject matter of this
Agreement shall be with the state and federal courts in and for Hillsborough
and
Pinellas Counties, Florida, which shall be decided by Company, and the parties
hereby expressly waive any venue privileges which may be asserted in connection
with this Agreement. In any arbitration and/or litigation arising out of this
Agreement, the prevailing party shall be entitled to recover reasonable
attorneys’ fees and costs, including attorneys’ fees incurred on appeal.
8.06 Authority
to Enter Agreement. The parties warrant that they have the authority to enter
into this Agreement and that entering into this Agreement is not restricted
or
prohibited by any existing agreement to which they are parties. Additionally,
the parties represent and warrant that this Agreement has been authorized and
approved by all necessary corporate actions.
8.07 Assignment.
The rights and liabilities of this Agreement shall be binding on and inure
to
the benefit of the respective parties and their respective heirs, legal
representatives, successors and assigns.
8.08 Headings.
All section and subsection headings contained in this Agreement are for
convenience only and shall not be deemed to constitute a part of this Agreement
nor affect the meaning of same.
8.09 Assignment.
Contractor shall not sell, transfer, assign, sublicense, or subcontract any
right or obligation hereunder without the prior written consent of
Company.
8.10 Survival.
The parties’ rights and obligations under Articles 5, 6, 7, and 8 shall survive
any expiration or earlier termination of this Agreement.
IN
WITNESS THEREOF, the parties hereto, intending to be legally bound hereby,
have
caused this Agreement to be executed by their respective duly authorized
representatives as of the day indicated.
(Signature
Page to Follow)
CONTRACTOR:
| Xxxxxxxxxx Business Development, LLC. |
/s/
Xxx Xxxxxxxxxx
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Xxx Xxxxxxxxxx, President
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| Date: |
COMPANY:
| OmniReliant Corporation |
/s/
Xxxxx Xxxxxxxx
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Xxxxx Xxxxxxxx, CEO
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| Date: |
