Exhibit 4.5
CONSULTING SERVICES AGREEMENT
This Consulting Services Agreement ("Agreement"), dated July 11, is made by and
between Xxxxxxx Xxxxxxx an individual ("Consultant"), whose address is 00000 XX
0xx. Xx., Xxxxx Xxxxxxx, Xx 00000, and eConnect, having its principal place of
business at 2500 Xxx Xxxxxxxx Xxxxxx, Xxxxx 000, Xxx Xxxxx, Xxxxxxxxxx 00000.
WHEREAS, Consultant will engage in the pursuit of a developing the marketplace
of the PERFECT industry. Consultant, at his own expense, may engage other
parties in the securities industry or related fields to assist Consultant to
provide the most efficient and expeditious service to Client;
WHEREAS, Consultant desires to be engaged by Client to provide information,
evaluation and consulting services to the Client in his areas 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 Over the Counter Bulletin Board under the ticker symbol "ECNC," and desires
to further develop its business of the Client and its image;
and WHEREAS, Client desires to engage Consultant to provide information,
evaluation and consulting services to the Client in his areas 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.
Consultant shall be engaged by the Client for 3 years during which time the
consultant shall do the following:
A. Target, Locate and bring to the company 10 strategic allies per year
in respective industries having to do with PERFECT transactions.
B. Introduce the Company to a targeted group of mutual funds and
brokerage firms.
C. Introduce the Company to potential acquisitions by the Company which
will add shareholder value.
D Provide daily consulting advice on an ongoing and easily accessible
basis.
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E. Provide introductions to national resellers of the eCashpad services.
Consultant further agrees to perform for Client all necessary services required
to rapidly expand the marketplace for the PERFECT industry with specific focus
on eCashPad ATM card with PIN transactions. As such, Consultant will be
providing bona fide services to Client. The services to be provided by
Consultant will not be in connection with the offer or sale of securities in a
capital- raising transaction, and will not directly or indirectly promote or
maintain a market for Client's securities.
2. Consideration.
Client agrees to pay Consultant, as his fee and as consideration for services
provided, 15,000,000 shares of S-8 free trading common stock in Client. Shares
are due and payable immediately upon the effectiveness of the Form S-8
Registration Statement with the U.S. Securities and Exchange Commission and with
any appropriate states securities administrator.
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
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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 on the date appearing next to
the signatures below and terminate 3 years thereafter. Unless otherwise agreed
upon in writing by Consultant and Client, this Agreement shall not automatically
be renewed beyond its Term.
(b) Termination. Either party may terminate this Agreement on thirty (30)
calendar days written notice, or if prior to such action, the other party
materially breaches any of its representations, warranties or obligations under
this Agreement. Except as may be otherwise provided in this Agreement, such
breach by either party will result in the other party being responsible to
reimburse the non- defaulting party for all costs incurred directly as a result
of the breach of this Agreement, and shall be subject to such damages as may be
allowed by law including all attorneys' fees and costs of enforcing this
Agreement.
(c) Termination and Payment. Upon any termination or expiration of this
Agreement, Client shall pay all unpaid and outstanding fees through the
effective date of termination or expiration of this Agreement. And upon such
termination, Consultant shall provide and deliver to Client any and all
outstanding services due through the effective date of this Agreement.
8. 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.
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(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 Xxxxxxx
00000 XX 0xx. Xx.
Xxxxx Xxxxxxx, Xx 00000
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(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 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. eConnect
By: /s/ Xxxxxx X. Xxxxxx
Xxxxxx X. Xxxxxx, President
/s/ Xxxxxxx Xxxxxxx
Xxxxxxx Xxxxxxx
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