CONSULTING AGREEMENT
EXHIBIT
10.12
THIS
CONSULTING AGREEMENT (the “Agreement”), made and entered into as of the
1st
day of
March, 2006 (the “Effective Date”), by and between AMS Health Sciences, Inc.
(the “Company”), and TVC, Inc. (the “Consultant”).
W
I T N E
S S E T H:
WHEREAS,
the Consultant is the employer of Xxxx X. Xxxx (“Hail”) and as Consultant’s
employee and otherwise, Hail has engaged in the business of and developed
extensive professional credentials in the area of marketing and promotion and
is
recognized for his skills and considerable knowledge of network
marketing;
WHEREAS,
the Company desires to utilize Hail’s marketing skills to develop and expand the
Company’s strategy and network; and
WHEREAS,
the Company agrees to engage the Consultant as a consultant and advisor and
the
Consultant agrees to accept such engagement upon the terms and conditions
hereinafter set forth.
NOW,
THEREFORE, in consideration of the mutual covenants herein, the parties hereby
agree as follows:
1. Consulting
Period.
The
initial term of this Agreement shall commence on the Effective Date and shall
continue until August 31, 2006 (the “Consulting Period”) unless terminated
earlier as provided herein. Thereafter, this Agreement may be renewed for any
number of additional, successive terms of six (6) months by mutual agreement
between the parties. Such renewal(s) must be in writing signed by Company’s
Chief Executive Officer on behalf of the Company and Consultant. Unless the
written renewal provides otherwise, the terms and conditions of the parties’
agreement will be as set forth in this Agreement.
2. Consulting
Engagement.
Effective March 1, 2006, the Company agrees to and shall engage Consultant
as a
consultant and advisor and the Consultant agrees to accept such engagement
for
the Consulting Period and upon the terms and conditions set forth herein.
Although the Consultant shall have the discretion to provide the services in
any
manner it otherwise determines, it is a specific requirement of the Company
that
the duties described herein shall be performed by Hail and by no other employee
or contractor of the Consultant. During the Consulting Period (and any
renewal(s) thereof), the Consultant will require Hail to devote himself to
his
duties under this Agreement and to give the Company the benefit of his knowledge
and experience and to use his best efforts to further the interests of the
Company.
3. Duties.
During
the Consulting Period (and any renewal(s) thereof), Consultant, through Hail,
shall render such services of an advisory or consultive nature and promote
the
name and goodwill of the Company as the Company may reasonably request.
Specifically, the Consultant, through Hail, shall develop a worldwide marketing
and training program to market the Company’s strategy and expertise. Hail’s
duties are more specifically described in Exhibit A, attached. Consultant,
including its employee Hail, shall exclusively represent the Company in the
area
of network marketing except as provided herein. During the Consulting Period
(and any renewal(s) thereof), Consultant shall not provide consulting services
nor permit Hail to be employed by or provide consulting services in the area
of
network marketing for any other entity. It shall not be a violation of this
Agreement for the Consultant to provide consulting services of any other nature
or to manage personal investments so long as such activities do not
significantly interfere with the performance of Consultant’s and Hail’s
responsibilities under this Agreement. Further, it shall not be a violation
of
this Agreement for Hail to continue his relationship with and to serve on the
board of directors of Prepaid Legal, Inc.
4. Independent
Contractor.
During
the Consulting Period (and any renewal(s) thereof), Consultant shall be retained
by the Company as an independent contractor and Consultant’s employee Hail shall
not be
an
“associate” or “employee” of the Company for any purpose. During the Consulting
Period (and any renewal(s) thereof), Consultant shall hold itself out as an
independent contractor and Hail shall hold himself out as an employee of
Consultant and not as an “associate” or “employee” of the Company. Accordingly,
the Company shall not pay or withhold federal and state income, withholding
and
employment taxes from the fees to be paid Consultant hereunder unless otherwise
required by applicable law and regulations. Consultant shall be solely
responsible for and shall pay or withhold all of such taxes for any salary
it
pays Hail as its employee.
5. Compensation.
(a) Consulting
Fee
(i) In
consideration for the performance of the Consultant’s duties described in
Section 3 hereof, during the Consulting Period (and any renewal(s) thereof),
the
Company shall pay to the Consultant, on a monthly basis, a fee (the “Consulting
Fee”) in the amount of Five thousand Dollars ($5,000).
(ii) Expenses.
Consultant shall be entitled to receive reimbursement for reasonable business
and travel expenses
incurred
by Hail for the benefit of the Company, provided that such expenses must be
approved by the Chief Executive Officer of the Company in advance of the date
incurred. Hail shall have the discretion of electing to travel by any means
he
chooses; however, Chief Executive Officer of the Company shall not be required
to approve nor the Company reimburse Consultant more than the costs of such
travel (including transportation, lodging and meals) in excess of the cost
of
such travel if the means of transportation used by Hail was a round-trip first
class airline ticket to the destination at which the consulting services
connected with the travel are performed.
6. Termination.
This
Agreement shall terminate automatically at the end of the initial Consulting
Period (or any renewal(s) thereof) and upon the Consultant’s dissolution or
insolvency or upon Hail’s death..
7. Obligations
of Company Upon Termination.
If the
Agreement is terminated during the Consulting Period (or any renewal(s) thereof)
as provided in Section 6 above, this Agreement shall terminate without further
obligations to the Consultant other than the obligation to pay any Consulting
Fee and approved, but unreimbursed expenses accrued and unpaid through such
date
of termination (such amounts are referred to hereinafter as “Accrued
Obligations”). All such Accrued Obligations shall be paid to the Consultant in a
lump sum in cash within thirty (30) days of the date of
termination.
8. Right
to Offset.
The
Company’s obligations to make the payments provided for in this Agreement and
otherwise to perform its obligations hereunder may be affected, reduced or
eliminated by any justified set-off, counterclaim, recoupment, defense or other
claim, right or action which the Company may have against the Consultant or
Hail. Such justified set-off, counterclaim, recoupment, defense or other claim
shall be based on serious and meritorious grounds as determined by the Company.
Prior to the Company exercising its right to off-set as provided under this
Section 8, the Company shall notify the Consultant of the grounds for the
Company exercising such right or taking such action.
9. Confidential
Information.
The
Consultant and its employees, including Hail, shall hold in a fiduciary capacity
for the benefit of the Company all secret or confidential information, trade
secrets, knowledge or data relating to the Company and its respective businesses
(the “Protected Information”), which shall have been obtained by the Consultant
during the term of this Agreement, and which shall not be or become public
knowledge. After termination of this Agreement, the Consultant and its
employees, including Hail, shall not, without the prior written consent of
the
Company, communicate or divulge any such Protected Information to anyone other
than the Company and those designated by it.
10. Litigation
Costs.
If any
legal action or other proceeding (including arbitration) is brought for the
enforcement of this Agreement, the successful or prevailing party in whose
favor
judgment is entered shall be entitled to recover reasonable attorneys, fees
and
other costs incurred in such action or proceeding, in addition to any other
relief to which it may be entitled.
11. Successors
and Binding Effect.
(a) Assignment.
This
Agreement is personal to the Consultant and its employee Hail and, without
prior
written consent of the Company, shall not be assignable by the Consultant.
(b) Binding
Effect.
This
Agreement shall inure to the benefit of and be binding upon the parties hereto
and their respective personal or legal representatives, executors,
administrators, successors, heirs, assigns, distributees, devisees and
legatees.
12. Miscellaneous.
(a) Construction.
This
Agreement is intended to be interpreted, construed and enforced in accordance
with the laws of the State of Oklahoma.
(b) Headings.
The
captions of this Agreement are not part of the provisions hereof and shall
have
no force and effect.
(c) Amendment.
This
Agreement may not be amended or modified otherwise than by a written agreement
executed by the parties hereto or their respective successors or
assigns.
(d) Notices.
All
notices and other communications hereunder shall be in writing and shall be
given by hand delivery to the other parties or by registered or certified mail,
return receipt requested, postage prepaid, addressed as follows:
If
to
the Consultant:
TVC,
Inc.
Xxxx
X.
Xxxx
0000
X.
Xxxxxxx Xxxx
Xxxxxxxx
Xxxx, XX 00000
If
to
the Company:
AMS
Health Sciences, Inc.
000
XX
00xx
Xxxxxx
P.O.
Box
12940
Xxxxxxxx
Xxxx, XX 00000
Attn:
Xxxxx X. Xxxxxxx
or
such
other address as the parties shall have furnished to the other in writing in
accordance herewith. Notices and communications shall be effective when actually
received by the addressee unless otherwise specifically provided in this
Agreement.
(e) Severability.
The
invalidity or unenforceability of any provision of this Agreement shall not
affect the validity or enforceability of any other provision of this
Agreement.
(f) No
Waiver.
The
Company’s failure to insist upon strict compliance with any provision hereof
shall not be deemed to be a waiver of such provision or any other provision
hereof.
(g) Entire
Agreement.
This
Agreement contains the entire understanding of the Company and the Consultant
with respect to the subject matter hereof.
IN
WITNESS WHEREOF, the Consultant has hereunto set his hand and the Company has
caused these presents to be executed in its name on its behalf, all as of the
day and year first above written.
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“CONSULTANT”
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TVC,
INC.
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By:
/S/ Xxxx
X. Xxxx.
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“COMPANY”
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AMS
HEALTH SCIENCES, INC.
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By:
/S/
Xxxxx X. Xxxxxxx.
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Xxxxx X. Xxxxxxx, President and Chief Executive Officer
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