CONSULTING AGREEMENT
Exhibit
10.51
This
Consulting Agreement (the “Agreement”) is entered
into as of October 21, 2016 by and between GrowLife,
Inc. (the
“Company”) and
Process Engineering
Services, Inc. (the Consultant”).
1. Consulting
Relationship. During the term of this Agreement, Consultant
will provide advisory services (the “Services”) to the Company
as such are more fully described on Exhibit A attached hereto.
Consultant represents that Consultant has the qualifications, the
experience and the ability to properly perform the Services.
Consultant shall use Consultant’s best efforts to perform the
Services such that the results are satisfactory to the
Company.
2. Fees.
As consideration for the Services to be provided by Consultant the
Company shall pay to Consultant the amounts specified in
Exhibit B attached
to this Agreement at the times specified therein.
3. Expenses.
Consultant shall not be authorized to incur any expenses behalf of
the Company or incur any expenses itself that Consultant expects
Company to reimburse Consultant for without the Company’s
prior consent, which
consent shall be evidenced in writing for any expenses in excess of
$250 per month. As a condition to receipt of
reimbursement, Consultant shall be required to submit to the
Company reasonable evidence that the amount involved was expended
and related to Services provided under this Agreement.
4.
Term and Termination. Consultant shall
serve as a consultant to the Company for an initial term of one
year commencing on October 21, 2016 after which either party may
terminate this Agreement at any time without notice.
5.
Independent Contractor.
Consultant’s relationship with the Company will be that of an
independent contractor and not that of an employee.
(a) Method
of Provision of Services. Consultant shall be solely
responsible for determining the method, details and means of
performing the Services. Consultant may, at Consultant’s own
expense, employ or engage the service of such employees or
subcontractors as Consultant deems necessary to perform the
Services required by this Agreement (the “Assistants”). Such
Assistants are not the employees of the Company and Consultant
shall be wholly responsible for the professional performance of the
Services by his Assistants such that the results are satisfactory
to the Company.
(b) No
Authority to Bind Company. Neither Consultant, nor any
partner, agent or employee of Consultant, has authority to enter
into contracts that bind the Company or create obligations on the
part of the Company without the prior written authorization of the
Company.
(c) No
Benefits. Consultant acknowledges and agrees that Consultant
(or Consultant’s employees, if Consultant is an entity) will
not be eligible for any Company employee benefits and, to the
extent Consultant (or Consultant’s employees, if Consultant
is an entity) otherwise would be eligible for any Company employee
benefits but for the express terms of this Agreement, Consultant
(on behalf of itself and its employees) hereby expressly declines
to participate in such Company employee benefits.
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(d) Withholding
and Taxes. Consultant shall have full responsibility for
applicable withholding taxes for all compensation paid to
Consultant, its partners, agents or its employees under this
Agreement, and for compliance with all applicable labor and
employment requirements with respect to Consultant’s
self-employment, sole proprietorship or other form of business
organization, and Consultant’s partners, agents and
employees, including state worker’s compensation insurance
coverage requirements and any US immigration visa
requirements.
(e) Work
for Others. The Company acknowledges, recognizes, and agrees
that, subject to the provisions of Section 7 hereto, the Consultant
may perform services for other persons, clients, or
businesses.
6. Consulting
or Other Services for Competitors. Consultant represents and
warrants that Consultant does not presently perform consulting or
other services for, or engage in an employment relationship with,
companies who businesses or proposed businesses in any way involve
products or services which are competitive with the Company’s
products or services, or those products or services proposed or in
development by the Company during the term of the Agreement (except
for those companies, if any, listed on Exhibit C attached hereto). If,
however, Consultant decides to do so, Consultant agrees that, in
advance of accepting such work, Consultant will promptly notify the
Company in writing, specifying the organization with which
Consultant proposes to consult, provide services, or become
employed by and to provide information sufficient to allow the
Company and Consultant to mutually and collectively determine if
such proposed work will conflict with the terms of this Agreement,
the interests of the Company or further services which the Company
might request of Consultant. If both the Consultant and Company,
after a reasonable review, determine such proposed work will
compromise the Consultant’s ability to perform under this
Agreement the Company may elect to terminate this Agreement by
giving notice the Consultant as provided hereunder.
7. Confidentiality
and Nondisclosure. Consultant shall not, during or after the
term of his engagement, directly or indirectly, use, disseminate,
or disclose to any person, firm, or other business entity for any
purpose whatsoever, any information not generally known in the
industry in which the Company is or may be engaged which was
disclosed to Consultant or known by Consultant as a consequence of
or through his consulting relationship with the Company. This
includes information regarding and relating to the Company's
services, pricing and clients, and also includes information
relating to purchasing, accounting, marketing, and merchandising.
Consultant shall hold in a fiduciary capacity for the benefit of
the Company all information described herein, during the term of
this Agreement, which may be directly or indirectly useful in or
related to the business of the Company or its affiliates, or may be
within the scope of its or their business. Notwithstanding this Section 8,
with the prior written consent of the Company, the Consultant may
use Company name for the Consultant’s marketing and other
promotional materials.
Except
as required by law, neither Consultant nor any of
Consultant’s employees, officers, agents or advisors shall
issue any press release or make any other public statement relating
to this Agreement, any work done under this Agreement or any of the
transactions contemplated by this Agreement without obtaining the
prior written approval of Company as to the contents and the manner
of presentation and publication of such press release or public
statement.
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8. Conflicts
with this Agreement. Consultant represents and warrants that
neither Consultant nor any of Consultant’s partners,
employees or agents is under any pre-existing obligation in
conflict with or in any way inconsistent with the provisions of
this Agreement. Consultant represents and warrants that
Consultant’s performance of all the terms of this Agreement
will not breach any agreement to keep in confidence proprietary
information acquired by Consultant in confidence or in trust prior
to commencement of this Agreement. Consultant warrants that
Consultant has the right to disclose and/or or use all ideas,
processes, techniques and other information, if any, which
Consultant has gained from third parties, and which Consultant
discloses to the Company or uses in the course of performance of
this Agreement, without liability to such third parties. Consultant
will not knowingly infringe upon any copyright, patent, trade
secret or other property right of any former client, employer or
third party in the performance of the Services required by this
Agreement.
9. Miscellaneous.
(a) Amendments
and Waivers. Any term of this Agreement may be amended or
waived only with the written consent of the parties.
(b) Sole
Agreement. This Agreement, including the Exhibits hereto,
constitutes the sole agreement of the parties and supersedes all
oral negotiations and prior writings with respect to the subject
matter hereof.
(c) Notices.
Any notice required or permitted by this Agreement shall be in
writing and shall be deemed sufficient upon receipt, when delivered
personally or by courier, overnight delivery service or confirmed
facsimile, 48 hours after being deposited in the regular mail as
certified or registered mail (airmail if sent internationally) with
postage prepaid, if such notice is addressed to the party to be
notified at such party’s address or facsimile number as set
forth below, or as subsequently modified by written
notice.
(d) Choice
of Law. The validity, interpretation, construction and
performance of this Agreement shall be governed by the laws of the
State of Delaware, without giving effect to the principles of
conflict of laws.
(e) Severability.
If one or more provisions of this Agreement are held to be
unenforceable under applicable law, the parties agree to
renegotiate such provision in good faith. In the event that the
parties cannot reach a mutually agreeable and enforceable
replacement for such provision, then (i) such provision shall
be excluded from this Agreement, (ii) the balance of the
Agreement shall be interpreted as if such provision were so
excluded and (iii) the balance of the Agreement shall be
enforceable in accordance with its terms.
(f) Counterparts.
This Agreement may be executed and delivered in counterparts or
electronically, each of which shall be deemed an original, but all
of which together will constitute one and the same
instrument.
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(g) Arbitration.
Any dispute or claim arising from or
relating to this Agreement will be finally settled by binding
arbitration in Delaware, in accordance with the rules of the
American Arbitration Association by one arbitrator appointed in
accordance with said rules. The arbitrator shall apply Delaware
law, without reference to rules of conflicts of law (for the
purpose of applying another jurisdiction’s law) or rules of
statutory arbitration, to the resolution of any dispute. Judgment
on the award rendered by the arbitrator may be entered in any court
having jurisdiction thereof. Notwithstanding the foregoing, the
parties may apply to any court of competent jurisdiction for
preliminary or interim equitable relief, or to compel arbitration
in accordance with this paragraph, without breach of this
arbitration provision.
(h) Jurisdiction
and Venue. Any suit involving any dispute or matter arising
under this Agreement may only be brought in the United States
District Court for the State of Delaware having jurisdiction over
the subject matter of the dispute or matter. Each of the parties
hereto, hereby consents to the exercise of personal jurisdiction by
any such court with respect to any such proceeding.
(i) Advice
of Counsel. EACH PARTY ACKNOWLEDGES THAT, IN EXECUTING THIS
AGREEMENT, SUCH PARTY HAS HAD THE OPPORTUNITY TO SEEK THE ADVICE OF
INDEPENDENT LEGAL COUNSEL, AND HAS READ AND UNDERSTOOD ALL OF THE
TERMS AND PROVISIONS OF THIS AGREEMENT. THIS AGREEMENT SHALL NOT BE
CONSTRUED AGAINST ANY PARTY BY REASON OF THE DRAFTING OR
PREPARATION HEREOF.
[Signature Page Follows]
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IN
WITNESS WHEREOF, the parties hereto have hereby executed this
Agreement on the respective dates set forth below.
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COMPANY:
By: /s/
Xxxxx Xxxxx
Name:
Xxxxx Xxxxx
Title:
Chief Executive Officer
Address:
0000 Xxxxxxxx Xxxxx
Xxxxxxxx,
XX 00000
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CONSULTANT:
Process
Engineering Services, Inc.
/s/
Xxxxxxx X. Xxxxx
Xxxxxxx
X. Xxxxx, President
Address:
XX Xxx 000
Xxxx
Xxxxxxx, XX 00000
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EXHIBIT A
DESCRIPTION
OF CONSULTING SERVICES
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Description of Services and
Deliverables
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Schedule/Deadline
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Management
of lender relationships
Consulting
on financing
Consulting
on acquisitions and integration of acquisition
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EXHIBIT B
COMPENSATION
For
Services rendered by Consultant under this Agreement, the Company
shall pay Consultant by issuing 2,000,000 shares of restricted
common stock at $0.01 per share on April 21, 2017.
For
Services rendered by Consultant under this Agreement, the Company
shall pay Consultant by issuing 2,000,000 shares of restricted
common stock at $0.01 per share on October 21, 2017.
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EXHIBIT C
LIST OF
COMPANIES AND PROJECTS
EXCLUDED
UNDER SECTION 7
_X__
Conflicts described below Go Green
___ No
conflicts
___
Additional Sheets Attached
Signature of
Consultant:
Print Name of
Consultant:
Date:
October 21, 2016
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