EXHIBIT 10.4
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CONSULTING SERVICES AGREEMENT
THIS CONSULTING SERVICES AGREEMENT entered into this 24th day of May, 2005
(hereinafter "Effective Date") by and between CORNELL CAPITAL PARTNERS, LP, a
Delaware Limited Partnership ("Cornell") with its principal office at 000 Xxxxxx
Xxxxxx - Xxxxx 0000, Xxxxxx Xxxx, Xxx Xxxxxx 00000, and IVOICE, INC., a New
Jersey corporation, with its principal office located at 000 Xxxxxxx 00,
Xxxxxxx, Xxx Xxxxxx 00000 (the "Company").
The Company desires to engage Cornell to perform as an independent
contractor to provide certain consulting and advisory services to the Company as
designated below, and Cornell desires to accept such engagement by the Company,
pursuant to the terms and conditions of this Consulting Agreement.
In consideration of the representations, warranties, mutual covenants and
agreements set forth herein, the parties agree as follows:
1. SCOPE OF SERVICES.
a. Duties and Performance. From time to time during the term of this
Agreement, Cornell shall provide such advisory services to the Company with
regard to general corporate matters (the "Services").
b. Independent Contractor Status. The parties agree that Cornell is an
independent contractor performing Services hereunder and not an employee of the
Company. Cornell may use contractors or other third parties of Cornell's choice
to assist Cornell in rendering such Services. Nothing herein or in the
performance hereof shall imply either a joint venture or principal and agent
relationship between the parties, nor shall either such relationship be deemed
to have arisen under this Agreement.
2. COMPENSATION AND EXPENSES.
a. Fee. In respect to Cornell performing any Services hereunder the Company
shall pay to Cornell, a fee of four and one-half percent (4 1/2%) of the gross
proceeds of the Promissory Note dated May 24, 2005 as earned by Cornell at such
time (the "Fee").
3. INDEMNIFICATION. Exhibit A attached hereto and made a part hereof sets forth
the understanding of the parties with respect to the indemnification and
exculpation of Cornell. The provisions of Exhibit A shall survive, and remain in
full force and effect after, the termination of this Agreement until fully
performed.
4. TERM AND TERMINATION. The term of this Agreement shall be for a period
commencing on the Effective Date hereof and ending on the expiration or
termination of the Promissory Note dated May 24, 2005.
5. MISCELLANEOUS.
a. Notice. All notices and other communications hereunder shall be in
writing and delivered by Federal Express or any other generally recognized
overnight delivery service, or by hand, to the appropriate party at the address
stated in the initial paragraph of this Agreement for such party or to such
other address as a party indicates in a notice to the other party delivered in
accordance with this Section.
b. Severability. Should one or more provisions of this Agreement be held
unenforceable, for whatever cause, the validity of the remainder of this
Agreement shall remain unaffected. The parties shall, in such event, attempt in
good faith to agree on new provisions which best correspond to the object of
this Agreement.
c. Entire Agreement. The parties have entered into the present Agreement
after negotiations and discussions, an examination of its text, and an
opportunity to consult counsel. This Agreement constitutes the entire
understanding between the parties regarding to specific subject matter covered
herein. This Agreement supersedes any and all prior written or oral contracts or
understandings between the parties hereto and neither party shall be bound by
any statements or representations made by either party not embodied in this
Agreement. No provisions herein contained shall be waived, modified or altered,
except by an instrument in writing, duly executed by the parties hereto.
d. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of New Jersey, without giving effect to
any choice of law of conflict of law provision or rule whether such provision or
rule is that of New Jersey or any other jurisdiction. Each party irrevocably
consents to the exclusive personal jurisdiction of the Superior Courts of Xxxxxx
County New Jersey sitting in Jersey City New Jersey or the United States
District Court for the District of New Jersey, sitting in Newark New Jersey, in
connection with any action, suit or proceeding relating to or arising out of
this Agreement or any of the transactions or relationships contemplated hereby.
Each party, to the maximum extent permitted by law, hereby waives any objection
that such party may now have or hereafter have to the jurisdiction of such
courts on the basis of inconvenient forum or otherwise. Each party waives trial
by jury in any proceeding that may arise with respect to this Agreement.
e. No Implied Waivers. No delay or omission by either party to exercise its
rights and remedies in connection with the breach or default of the other shall
operate as or be construed as a waiver of such rights or remedies as to any
subsequent breach.
f. Counterparts. This Agreement may be executed in any number of
counterparts, but all counterparts hereof shall together constitute but one
agreement. In
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proving this Agreement, it shall not be necessary to produce or account for more
than one counterpart signed by both of the parties.
g. Binding Nature. This Agreement shall be binding upon and shall inure to
the benefit of the successors and assigns of the respective parties to this
Agreement.
h. Assignment. Except as set forth in this Agreement, neither party will
have the right to assign, pledge or transfer all or any part of this Agreement
without the prior written consent of the other, and any such purported
assignment, pledge or transfer by a party without such prior written consent
shall be void.
i. Capacity. Cornell represents to the Company and the Company represents
to Cornell, that each person signing this Agreement on their behalf has the full
right and authority to do so, and to perform its obligations under this
Agreement.
j. Captions. The captions appearing in this Agreement are inserted only as
a matter of convenience and for reference and in no way define, limit or
describe the scope and intent of this Agreement or any of the provisions hereof.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the Effective Date.
CORNELL CAPITAL PARTNERS, LP IVOICE, INC.
By: _____________________________ By: _____________________________
Name: Name: Xxxxxx X. Xxxxxxx
Title: Title: President & CEO
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