Consulting Agreement
Exhibit 10.1
This
Consulting Areement (this “Agreement”) is made and entered into
this 4th day of August, 2008, (the “Effective Date”) by and
between, Xxxxxx Xxxxxxx.,(the “Consultant”), and Virtual
Payment Solutions, Inc., whose address is set forth below on the signature page
to this Agreement (the “Company”).
| 1. The
Company hereby engages Consultant to provide the Company with general
advice and consulting services all as more particularly described on Schedule
A adjacent to the caption “Services” (the “Services”). The
Services will commence as of the effective date, and continue thereafter
for a term set forth on Schedule
A adjacent to the caption “Term and Termination” (the “Term”). Consultant
accepts the engagement subject to all of the terms and conditions
herein.
2. This
engagement is part-time, and as such, Consultant will provide the Services
when and as requested by the Company from time to time at mutually
agreeable times and places. Consultant shall be free to provide
services to other companies during the Term, provided that such services
do not conflict with, or impair Consultant’s ability to provide the
Services to the Company.
3. Consultant
shall be compensated for the Services rendered pursuant to this Agreement
as described on Schedule
A adjacent to the caption Compensation.
4. The
Company shall furnish Consultant with all information that is reasonably
necessary for Consultant to perform the Services. All such
information provided by or on behalf of the Company shall be complete and
accurate, not misleading, and Consultant shall be entitled to rely upon
the accuracy and completeness of all such information without independent
verification.
5. Each
Party hereto shall indemnify and hold harmless the other from and against
any and all losses, claims, damages, or liabilities to which that party
may become subject, arising in any manner out of or
in
|
connection with the subject matter of this Agreement that are caused by the indemnifying party, unless it is finally judicially determined that such losses, claims, damages, or liabilities resulted directly from the gross negligence, the willful misconduct, or the criminal acts of the indemnified party, and shall reimburse the indemnified party immediately upon demand for any legal or other expenses reasonably incurred by the indemnified party in connection with investigating, preparing to defend, or defending any lawsuits, claims, or other proceedings arising in any manner hereunder; provided, however, that in the event a final judicial determination is made that the indemnified party’s damages arose out of the indemnified party’s gross negligence, willful misconduct, or criminal acts, the indemnified party will remit to the indemnifying party any amounts reimbursed under this subparagraph. The Company and Consultant agree that if any indemnification or reimbursement sought pursuant to the proceeding is finally judicially determined to be unavailable for a reason other than the gross negligence or the willful misconduct of Consultant or any of its controlling persons, affiliates, employees, or agents, as the case may be, then, whether or not Consultant is the indemnified party, the Company and Consultant shall contribute to the losses, claims, damages, liabilities, and expenses for which such indemnification or reimbursement is held unavailable in such proportion as is appropriate to reflect the relative benefits to the Company on the one hand, and Consultant on the other hand, in connection with the transactions to which |
Page 1 of
4
| such
indemnification or reimbursement relates, and other equitable
considerations; provided, however, that in no event shall the amount to be
contributed by Consultant pursuant to this paragraph 6 exceed the amount
of consulting fees actually received by Consultant hereunder.
6. As
used herein: “Confidential
Information” means information, other than Trade Secrets, that is
of value to its owner and is treated by its owner as confidential,
including, but not limited to, any data or information defined herein as a
Trade Secret, but which is determined by a court of competent jurisdiction
not to rise to be a trade secret under applicable law; “Proprietary Information”
means Confidential Information and Trade Secrets; and “Trade Secrets” means
information without regard to form, including but not limited to,
technical or non-technical data, formulas, patterns, compilations,
programs, devices, methods, techniques, drawings, processes, financial
data, financial plans, product plans, or a list of actual or potential
customers or suppliers, which: (a) derives economic value, actual or
potential, from not being generally known to, and not being readily
ascertained by proper means by, other persons who can obtain economic
value from its disclosure or use; and (b) is the subject of efforts that
are reasonable under the circumstances to maintain its
secrecy. Consultant acknowledges and agrees that all
Proprietary Information of the Company, and all physical embodiments
thereof, are confidential to and shall be and remain the sole and
exclusive property of the Company and that any Proprietary Information
produced by Consultant during the Term shall be considered “work for hire”
as such term is defined in 17 U.S.C. Section
|
101,
the ownership and copyright of which shall be vested solely in the
Company.
7. Consultant
agrees that all Proprietary Information
of the Company received or developed by Consultant as a result of
Consultant’s engagement herunder will be held in trust and strict
confidence. Except as contemplated by the terms hereof or as
required by applicable law or pursuant to an order entered, or subpoena
issued, by a court of competent jurisdiction, Consultant shall not
disclose Proprietary Information of the Company to any third party, other
than to potential acquisition targets, strategic partners, or investors,
who have executed a non-disclosure agreement restricting use of such
Proprietary Information for the sole purpose of evaluating the Company for
a possible transaction.
8. Consultant
will not, without the Company’s prior written consent, either directly or
indirectly, on Consultant’s own behalf or in the service or on behalf of
others, solicit, divert, or hire away, or attempt to solicit, divert, or
hire away, any person employed by the Company, whether or not such
employee is a full-time or a temporary employee of the Company and whether
or not such employment is pursuant to written agreement and whether or not
such employment is at will.
9. The
invalidity or unenforceability of any provision of this Agreement shall
not affect the validity or enforceability of any other provisions of this
Agreement which shall remain in full force and effect.
10. This
Agreement shall not be amended or modified, except in writing signed by
each of the parties, and shall be governed by and construed in accordance
with the laws of the State of Arizona. This Agreement may be
signed in one or more counterparts all of which taken together are one and
same document.
|
In
witness whereof, duly authorized officers of the Company and Consultant have
executed this Agreement as of the Effective Date.
Page 2 of
4
|
Xxxxxx
Xxxxxxx
0000
Xxxxxxxxxxx Xxxxxxx Xxxx, #000
Xxxxxxx
Xxxxx, Xx 00000
|
Virtual
Payment Solutions, Inc.
0000
XX 00xx
Xxx., #000
Xxxxxxx
Xxxxx, Xx 00000
|
|
|
By:
|
By:
|
|
|
Xxxxxx Xxxxxxx,
Consultant
|
Xxxxx
Xxxxx, Pres.
|
Page 3 of
4
SCHEDULE
A
|
Services:
|
Product
marketing services for payment gateway and wireless terminals
|
|
Term
and Termination:
|
This
Agreement is for a period of 6 months
|
|
Payment
for
Services
to be rendered
|
$2600
per month paid on 15th and 30th
|
|
Additional
Services included
|
Page 4 of 4
