CONSULTING SERVICES AGREEMENT
This Consulting Agreement ("Agreement") is made by and between
Xxxxxxx X. Xxxxxx, an individual ("Consultant"), whose address is
000 0xx Xxxxxx, Xxxx 00, Xxxxx Xxxxxx, Xxxxxxxxxx 00000, and
eConnect, a Nevada corporation ("Client"), having its principal
place of business at 2500 Xxx Xxxxxxxx Xxxxxx, Xxxxx 000, Xxx
Xxxxx, Xxxxxxxxxx 00000.
WHEREAS, Consultant has knowledge and expertise in many
areas including identifying, investigating, analyzing, and
evaluating businesses from the standpoint of assessing their
worth for investment by the Client, their worth as an operating
entity, as well as the value which may be imputed to them by the
investing public, and assisting in whatsoever negotiations may be
necessary to achieve business transactions with those entities;
WHEREAS, Consultant desires to be engaged by Client to
provide information, identification, investigation, evaluation
and negotiation services to the Client on the terms and subject
to the conditions set forth herein;
WHEREAS, Client is a publicly held corporation with its common
stock shares trading on the Over the Counter Bulletin Board under
the ticker symbol "ECNC," and desires to further develop its
business and increase it's common stock share's value by
combining its business through acquisition of, or arranging some
other business transaction with, another publicly or privately
held company;
WHEREAS, Client desires to engage Consultant to provide
information, identification, investigation, evaluation and
negotiation services on the terms and subject to the conditions
set forth herein.
NOW, THEREFORE, in consideration for those services Consultant
provides to Client, the parties agree as follows:
1. Services of Consultant.
Consultant agrees to perform for the Client all services and
consulting related to analyzing, negotiating and advising Client
on with regard to the Capital Contribution Agreement by and
between Client and XxxxXXxx.xxx, and its implementation.
2. Consideration.
Client agrees to pay Consultant, as his fee and as consideration
for services provided, as follows: (a) Thirty Thousand (30,000)
shares of restricted common stock of XxxxXXxx.xxx; and (b)
options to purchase Six Hundred Thousand (600,000) shares of
restricted common stock of XxxxXXxx.xxx, exercisable at one
dollar ($1.00) per share; these options expire three years after
the date of this Agreement. These shares and options are due and
payable immediately upon the execution of said Capital
Contribution Agreement.
3. Confidentiality.
Each party agrees that information that is confidential or of a
proprietary nature may be disclosed to the other party,
including, but not limited to, product and business plans,
software, technical processes and formulas, source codes, product
designs, sales, costs and other unpublished financial
information, advertising revenues, usage rates, advertising
relationships, projections, and marketing data ("Confidential
Information"). Confidential Information shall not include
information that the receiving party can demonstrate (a) is, as
of the time of its disclosure, or thereafter becomes part of the
public domain through a source other than the receiving party,
(b) was known to the receiving party as of the time of its
disclosure, (c) is independently developed by the receiving party
or (d) is subsequently learned from a third party not under a
confidentiality obligation to the providing party.
5. Indemnification.
(a) Client.
Client agrees to indemnify, defend, and shall hold harmless
Consultant and /or his agents, and to defend any action brought
against said parties with respect to any claim, demand, cause of
action, debt or liability, including reasonable attorneys' fees
to the extent that such action is based upon a claim that: (i) is
true, (ii) would constitute a breach of any of Client's
representations, warranties, or agreements hereunder, or (iii)
arises out of the negligence or willful misconduct of Client, or
any Client Content to be provided by Client and does not violate
any rights of third parties, including, without limitation,
rights of publicity, privacy, patents, copyrights, trademarks,
trade secrets, and/or licenses.
(b) Consultant.
Consultant agrees to indemnify, defend, and shall hold harmless
Client, its directors, employees and agents, and defend any
action brought against same with respect to any claim, demand,
cause of action, debt or liability, including reasonable
attorneys' fees, to the extent that such an action arises out of
the gross negligence or willful misconduct of Consultant.
(c) Notice.
In claiming any indemnification hereunder, the indemnified party
shall promptly provide the indemnifying party with written notice
of any claim, which the indemnified party believes falls within
the scope of the foregoing paragraphs. The indemnified party may,
at its expense, assist in the defense if it so chooses, provided
that the indemnifying party shall control such defense, and all
negotiations relative to the settlement of any such claim. Any
settlement intended to bind the indemnified party shall not be
final without the indemnified party's written consent, which
shall not be unreasonably withheld.
6. Limitation of Liability.
Consultant shall have no liability with respect to Consultant's
obligations under this Agreement or otherwise for consequential,
exemplary, special, incidental, or punitive damages even if
Consultant has been advised of the possibility of such damages.
In any event, the liability of Consultant to Client for any
reason and upon any cause of action, regardless of the form in
which the legal or equitable action may be brought, including,
without limitation, any action in tort or contract, shall not
exceed ten percent (10%) of the fee paid by Client to Consultant
for the specific service provided that is in question.
7. Miscellaneous.
(a) Independent Contractor.
This Agreement establishes an "independent contractor"
relationship between Consultant and Client.
(b) Rights Cumulative; Waivers.
The rights of each of the parties under this Agreement are
cumulative. The rights of each of the parties hereunder shall
not be capable of being waived or varied other than by an express
waiver or variation in writing. Any failure to exercise or any
delay in exercising any of such rights shall not operate as a
waiver or variation of that or any other such right. Any
defective or partial exercise of any of such rights shall not
preclude any other or further exercise of that or any other such
right. No act or course of conduct or negotiation on the part of
any party shall in any way preclude such party from exercising
any such right or constitute a suspension or any variation of any
such right.
(c) Benefit; Successors Bound.
This Agreement and the terms, covenants, conditions, provisions,
obligations, undertakings, rights, and benefits hereof, shall be
binding upon, and shall inure to the benefit of, the undersigned
parties and their heirs, executors, administrators,
representatives, successors, and permitted assigns.
(d) Entire Agreement.
This Agreement contains the entire agreement between the parties
with respect to the subject matter hereof. There are no
promises, agreements, conditions, undertakings, understandings,
warranties, covenants or representations, oral or written,
express or implied, between them with respect to this Agreement
or the matters described in this Agreement, except as set forth
in this Agreement. Any such negotiations, promises, or
understandings shall not be used to interpret or constitute this
Agreement.
(e) Assignment.
Neither this Agreement nor any other benefit to accrue hereunder
shall be assigned or transferred by either party, either in whole
or in part, without the written consent of the other party, and
any purported assignment in violation hereof shall be void.
(f) Amendment.
This Agreement may be amended only by an instrument in writing
executed by all the parties hereto.
(g) Severability.
Each part of this Agreement is intended to be severable. In the
event that any provision of this Agreement is found by any court
or other authority of competent jurisdiction to be illegal or
unenforceable, such provision shall be severed or modified to the
extent necessary to render it enforceable and as so severed or
modified, this Agreement shall continue in full force and effect.
(h) Section Headings.
The Section headings in this Agreement are for reference purposes
only and shall not affect in any way the meaning or
interpretation of this Agreement.
(i) Construction.
Unless the context otherwise requires, when used herein, the
singular shall be deemed to include the plural, the plural shall
be deemed to include each of the singular, and pronouns of one or
no gender shall be deemed to include the equivalent pronoun of
the other or no gender.
(j) Further Assurances.
In addition to the instruments and documents to be made, executed
and delivered pursuant to this Agreement, the parties hereto
agree to make, execute and deliver or cause to be made, executed
and delivered, to the requesting party such other instruments and
to take such other actions as the requesting party may reasonably
require to carry out the terms of this Agreement and the
transactions contemplated hereby.
(k) Notices.
Any notice which is required or desired under this Agreement
shall be given in writing and may be sent by personal delivery or
by mail (either a. United States mail, postage prepaid, or b.
Federal Express or similar generally recognized overnight
carrier), addressed as follows (subject to the right to designate
a different address by notice similarly given):
To Client:
Xxxxxx X. Xxxxxx
eConnect
2500 Xxx Xxxxxxxx Xxxxxx, Xxxxx 000
Xxx Xxxxx, Xxxxxxxxxx 00000
To Consultant:
Xxxxxxx X. Xxxxxx
000 0xx Xxxxxx, Xxxx 00
Xxxxx Xxxxxx, Xxxxxxxxxx 00000
(l) Governing Law.
This Agreement shall be governed by the interpreted in accordance
with the laws of the State of California without reference to its
conflicts of laws rules or principles. Each of the parties
consents to the exclusive jurisdiction of the federal courts of
the State of California in connection with any dispute arising
under this Agreement and hereby waives, to the maximum extent
permitted by law, any objection, including any objection based on
forum non coveniens, to the bringing of any such proceeding in
such jurisdictions.
(m) Consents.
The person signing this Agreement on behalf of each party hereby
represents and warrants that he has the necessary power, consent
and authority to execute and deliver this Agreement on behalf of
such party.
(n) Survival of Provisions.
The representations and warranties contained in Article VIII of
this Agreement and any liability of one Constituent Corporation
to the other for any default under the provisions of Articles VII
or VIII of this Agreement, shall expire with, and be terminated
and extinguished by, the merger under this Agreement on the
Effective Date.
(o) Execution in Counterparts.
This Agreement may be executed in any number of counterparts,
each of which shall be deemed an original and all of which
together shall constitute one and the same agreement.
IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed and haveagreed to and accepted the terms herein on this
date, appearing next to their signatures.
eConnect
Date: December 10, 1999 By : /s/ Xxxxxx X. Xxxxxx
Xxxxxx X. Xxxxxx, President
Xxxxxxx X. Xxxxxx
Date: December 10, 1999 /s/ Xxxxxxx X. Xxxxxx
Xxxxxxx X. Xxxxxx
