EX-10.10
CONSULTING SERVICES AGREEMENT
CONSULTING SERVICES AGREEMENT
This Consulting Services Agreement ("Agreement"),
dated August 1, 2007 is made by and between Xx Xxxx & Company,
Inc., a Nevada corporation, and its representative Xxxxxx xx Xxxx
(collectively referred to as the "Consultant"), whose address is
000 Xxxxxxx Xxxxxx, Xxx Xxxxx, Xxxxxx 00000, and GameZnFlix,
Inc., a Nevada corporation ("Client"), having its principal place
of business at 0000 Xxxxxxxxx Xxxx, Xxxxxxxx, Xxxxxxxx 00000.
WHEREAS, Consultant has extensive background and knowledge
in the area of federal securities laws and regulations related to
accounting issues and accounting knowledge;
WHEREAS, Consultant desires to be engaged by Client to
provide information, evaluation and consulting services to the
Client in his area of knowledge and expertise 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 NASDAQ Over-the-Counter
Bulletin Board (OTCBB) market under the ticker symbol "GZFX," and
desires to further develop its business; and
WHEREAS, Client desires to engage Consultant to provide
information, evaluation and consulting services to the Client in
his area of knowledge and expertise 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.
Provide services related to and customary to that of a
person serving in Chief Financial Officer position, as well as,
services related to Securities and Exchange Commission filings
and assist in such filings, and review monthly financial
information for the next 12 months commencing on August 1, 2007.
2. Consideration.
Client agrees to pay Consultant, as his fee and as
consideration for services provided, Five Thousand Dollars
($5,000.00) to be paid in cash monthly and 500,000 unrestricted
shares of GameZnFlix common stock to be issued at each quarter
for a total of four (4) quarters. The cash monthly fee of $5,000
shall be due and payable not later than the fifteenth (15th) of
each month, beginning with the first payment due on August 15,
2007. Such monthly fees shall increase by ten percent (10%)
beginning on each anniversary date of the Agreement. The 500,000
unrestricted shares shall be issued on the fifteenth (15th) day
of the third month of each quarter beginning with the first
issuance on August 15, 2007.
3. Confidentiality.
Each party agrees that during the course of this Agreement,
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.
4. Late Payment.
Client shall pay to Consultant all fees within fifteen (15)
days of the due date. Failure of Client to finally pay any fees
within fifteen (15) days after the applicable due date shall be
deemed a material breach of this Agreement, justifying suspension
of the performance of the "Services" provided by Consultant, will
be sufficient cause for immediate termination of this Agreement
by Consultant. Any such suspension will in no way relieve Client
from payment of fees, and, in the event of collection
enforcement, Client shall be liable for any costs associated with
such collection, including, but not limited to, legal costs,
attorneys' fees, courts costs, and collection agency fees.
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. Termination and Renewal.
(a) Term.
This Agreement shall become effective as of August 1, 2005
and will continue for twelve months. The Agreement may renew on
each anniversary date for up to three consecutive years. Unless
otherwise agreed upon in writing by Consultant and Client, this
Agreement shall not automatically be renewed beyond its Term.
(b) Termination.
This agreement may not be terminated by either party, except
that the Client may terminate the Consultant for cause in the
event any of the following enumerated events occur:
(a) The Consultant fails to work for the
Client at a level of competency satisfactory to
the Board of Directors of the Company.
(b) The Consultant engages in any activity
which brings disrepute and harm to the Client.
(c) The Consultant has become permanently
disabled for a period in excess of six (6) months.
8. Miscellaneous.
(a) Independent Contractor.
This Agreement establishes an "independent contractor"
relationship between Consultant and Client. Accordingly,
consultant is obligated to render services to Client for a
maximum of fifteen (15) hours per month during the term of the
Agreement, which such hours can be performed at any time during
each month.
(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:
Xxxx Xxxxxxx, President
GameZnFlix, Inc.
0000 Xxxxxxxxx Xxxx
Xxxxxxxx, Xxxxxxxx 00000
To Consultant:
Xx Xxxx & Company, Inc.
000 Xxxxxxx Xxxxxx
Xxx Xxxxx, Xxxxxx 00000
(l) Governing Law.
This Agreement shall be governed by the interpreted in
accordance with the laws of the State of Nevada 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 provisions contained in paragraphs 3, 5, 6, and 8 of
this Agreement shall survive the termination of this Agreement.
(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 have agreed to and accepted the terms herein
on the date written above.
GameZnFlix, Inc.
By : /s/ Xxxx Xxxxxxx
Xxxx Xxxxxxx
Xx Xxxx & Company, Inc.
By: /s/ Xxxxxx Xx Xxxx
Xxxxxx Xx Xxxx
