CONSULTING AGREEMENT
This
Consulting Agreement (the “Agreement”), is effective as of March 1,
2008, (the “Effective Date”) between AVT, Inc., a Nevada corporation,
with principal address at 000 Xxxxxx Xxxxxx, Xxxxx 000, Xxxxxx, XX 00000
(hereinafter referred to as the “Company”) and SNI Innovations, Inc., a Nevada
corporation with principal address at 0000 Xxxxx Xxxxxx Xxxxxx, Xxxxx 000,
Xxxxxx Xxxx, Xxxxxx 8971 (the “Consultant”).
WHEREAS, the Company requires
the Services (as defined herein) and as set forth herein;
WHEREAS, Consultant is
qualified to provide the Company with the Services and is desirous to perform
such Services for the Company; and
WHEREAS, the Company wishes to
induce Consultant to provide the Services and wishes to contract with the
Consultant regarding the same and compensate Consultant in accordance with the
terms herein;
NOW, THEREFORE, in
consideration of the mutual covenants hereinafter stated, it is agreed as
follows:
1. APPOINTMENT.
The
Company hereby engages Consultant and Consultant agrees to render the Services
to the Company as a consultant upon the terms and conditions hereinafter set
forth.
2. TERM.
Subject
to Section 8(a), the term of this Consulting Agreement shall begin as of the
date of the Effective Date, and shall terminate 12 months thereafter
(hereinafter, the “Term”). This Consulting Agreement shall extend for
an additional 12 month Term, unless 30 days prior written notice of termination
is presented by the Company.
3. SERVICES.
During
the term of this Agreement, Consultant shall provide the Company with the
“Services” described in this paragraph.
a. Consultant
shall provide research and development services for the Company to develop new
intellectual property for the Company.
b. Consultant
hereby assigns its 5 year non-exclusive license to the remote advertising and
data streaming software developed by Lake Technologies, Inc., a California
corporation, (the “Lake Software Technology”) as provided in the Business
Development and Ownership Agreement, effective as of April 1, 2008, by and
between consultant and Lake Technologies, Inc. (the “Lake
Agreement”).
c. Consultant
hereby grants the Company a first right of refusal to purchase from Consultant
at a negotiated price, all intellectual property developed, including all
derivative works and/or modifications thereto, including modifications to the
Lake Software Technology (including all United States and foreign trademarks,
service marks, copyrights, patents, trade secrets, and all other intellectual
property rights) by Lake and/or Consultant pursuant to the Lake
Agreement.
Consultant
agrees to provide the Services on a timely basis via: meetings with Company
representatives which may include other professionals; conferences calls with
Company representatives and other professionals; and/or written correspondence
and documentation. Consultant cannot guarantee the results on behalf
of the Company, but shall pursue all avenues that it deems reasonable through
its network of contacts.
4. COMPENSATION. In
connection with this Agreement, the foregoing shall be referred to as
“Compensation.” All Compensation due to be delivered and/or paid to
Consultant pursuant to this Agreement shall be deemed completely earned, due,
payable and non-assessable as of the date the Compensation is due to or vested
in Consultant. Compensation shall consist of the
following:
a. US$15,000
per month.
5. REPRESENTATIONS
AND WARRANTIES OF COMPANY.
The
Company hereby represents, warrants and agrees as follows:
a. This
Agreement has been authorized, executed and delivered by the Company and, when
executed by the Consultant will constitute the valid and binding agreement of
the Company enforceable against the Company in accordance with its terms, except
as enforcement thereof may be limited by bankruptcy, insolvency or
reorganization, moratorium or other similar laws relating to or affecting
creditors’ rights generally or by general equitable principles.
b. The
financial statements, audited and unaudited (including the notes thereto)
provided to Consultant, (the “Financial Statements”), will present fairly the
financial position of the Company as of the dates indicated and the results of
operations and cash flows of the Company for the periods specified. Such
Financial Statements will be prepared in conformity with generally accepted
accounting principles applied on a consistent basis throughout the periods
involved except as otherwise stated therein.
c. The
Company is validly organized, existing and with active status under the laws the
State of Nevada.
d. The
securities to be issued to Consultant, if any, have all been authorized for
issuance and when issued, delivered and tendered to the Consultant by the
Company will be validly issued, fully paid and non-assessable.
e. Since
date of the most recent of the Financial Statements, there has not been any (A)
material adverse change in the business, properties, assets, rights, operations,
condition (financial or otherwise) or prospects of the Company, (B) transaction
that is material to the Company, except transactions in the ordinary course of
business, (C) obligation that is material to the Company, direct or contingent,
incurred by the Company, except obligations incurred in the ordinary course of
business, (D) change that is material to the Company or in the common shares or
outstanding indebtedness of the Company, or (E) dividend or distribution of any
kind declared, paid, or made in respect of the common shares.
f. The
Company shall be deemed to have been made a continuing representation of the
accuracy of any and all facts, material information and data which it supplies
to Consultant and acknowledges its awareness that Consultant will rely on such
continuing representation in disseminating such information and otherwise
performing its advisory functions. Consultant in the absence of
notice in writing from the Company, will rely on the continuing accuracy of
material, information and data supplied by the Company. Consultant
represents that he has knowledge of and is experienced in providing the
aforementioned services.
6. INDEMNIFICATION. The
Company agrees to indemnify the Consultant and hold it harmless against any
losses, claims, damages or liabilities incurred by the Consultant, in connection
with, or relating in any manner, directly or indirectly, to the Consultant
rendering the Services in accordance with the Agreement, unless it is determined
by a court of competent jurisdiction that such losses, claims, damages or
liabilities arose out of the Consultant’s breach of this Agreement, sole
negligence, gross negligence, willful misconduct, dishonesty, fraud or violation
of any applicable law. Additionally, the Company agrees to reimburse
the Consultant immediately for any and all expenses, including, without
limitation, attorney fees, incurred by the Consultant in connection with
investigating, preparing to defend or defending, or otherwise being involved in,
any lawsuits, claims or other proceedings arising out of or in connection with
or relating in any manner, directly or indirectly, to the rendering of any
Services by the Consultant in accordance with the Agreement (as defendant,
nonparty, or in any other capacity other than as a plaintiff, including, without
limitation, as a party in an interpleader action). The Company
further agrees that the indemnification and reimbursement commitments set forth
in this paragraph shall extend to any controlling person, strategic alliance,
partner, member, shareholder, director, officer, employee, agent or
subcontractor of the Consultant and their heirs, legal representatives,
successors and assigns. The provisions set forth in this Section
shall survive any termination of this Agreement.
7. COMPLIANCE
WITH SECURITIES LAWS. The Company
understands that any and all compensation outlined in this Agreement shall be
paid solely and exclusively as consideration for the aforementioned consulting
efforts made by Consultant on behalf of the Company as an independent
contractor. The Parties to be performing the services outlined in
this Agreement are natural persons. Consultant’s engagement does not
involve the marketing of any Company securities nor is Consultant being hired to
raise money for the Company.
8. MISCELLANEOUS.
a. Termination: This
Agreement may be terminated by either Party with 30 days prior written notice
(hereinafter referred to as a “Termination”).
b. Modification: This
Agreement sets forth the entire understanding of the Parties with respect to the
subject matter hereof. This Agreement may be amended only in writing
signed by both Parties.
c. Notices: Any
notice required or permitted to be given hereunder shall be in writing and shall
be mailed or otherwise delivered in person to the Parties at the addresses set
forth above.
d. Waiver: Any
waiver by either party of a breach of any provision of this Agreement shall not
operate as or be construed to be a waiver of any other breach of that provision
or of any breach of any other provision of this Agreement. The
failure of a party to insist upon strict adherence to any term of this
Consulting Agreement on one or more occasions will not be considered a waiver or
deprive that party of the right thereafter to insist upon adherence to that term
of any other term of this Consulting Agreement.
e. Severability: If
any provision of this Agreement is invalid, illegal, or unenforceable, the
balance of this Consulting Agreement shall remain in effect. If any
provision is inapplicable to any person or circumstance, it shall nevertheless
remain applicable to all other persons and circumstances. If any
compensation provision is deemed unenforceable or illegal, then in the case of
the delivery of common stock to the Consultant, Consultant shall be entitled to
receive a cash benefit equal to the value of the common stock that would have
been tendered had such a provision not been illegal or
unenforceable.
f. Arbitration: Any
dispute or other disagreement arising from or out of this Agreement shall be
submitted to arbitration under the rules of the American Arbitration Association
and the decision of the arbiter(s) shall be enforceable in any court having
jurisdiction thereof. Arbitration shall occur only in Orange County,
California
g. Governing
Law: With the exception of paragraph n, below, the
interpretation and the enforcement of this Agreement shall be governed by
California law as applied to residents of the State of California relating to
contracts executed in and to be performed solely within the State of California
(without reference to its choice of law principles), and to the exclusion of the
law of any other forum, without regard to the jurisdiction in which any action
or special proceeding may be instituted. EACH PARTY HERETO AGREES TO
SUBMIT TO THE PERSONAL JURISDICTION AND VENUE OF THE STATE AND/OR FEDERAL COURTS
LOCATED IN THE COUNTY OF ORANGE, CALIFORNIA FOR RESOLUTION OF ALL DISPUTES
ARISING OUT OF, IN CONNECTION WITH, OR BY REASON OF THE INTERPRETATION,
CONSTRUCTION, AND ENFORCEMENT OF THIS AGREEMENT, AND HEREBY WAIVES THE CLAIM OR
DEFENSE THEREIN THAT SUCH COURTS CONSTITUTE AN INCONVENIENT FORUM. AS
A MATERIAL INDUCEMENT FOR THIS AGREEMENT, EACH PARTY SPECIFICALLY WAIVES THE
RIGHT TO TRIAL BY JURY OF ANY ISSUES SO TRIABLE. If it becomes
necessary for any party to institute legal action to enforce the terms and
conditions of this Agreement, the prevailing party shall be awarded reasonable
attorneys fees, expenses and costs.
h. Specific
Performance: The Company and the Consultant shall have the
right to demand specific performance of the terms, and each of them, of this
Agreement.
i. Execution of the
Agreement: The Company, the party executing this Agreement on
behalf of the Company, and the Consultant, have the requisite corporate power
and authority to enter into and carry out the terms and conditions of this
Agreement, as well as all transactions contemplated hereunder. All corporate
proceedings have been taken and all corporate authorizations and approvals have
been secured which are necessary to authorize the execution, delivery and
performance by the Company and the Consultant of this Agreement. This
Agreement has been duly and validly executed and delivered by the Company and
the Consultant and constitutes a valid and binding obligation, enforceable in
accordance with the respective terms herein. Upon delivery of this
Agreement, this Agreement, and the other agreements and exhibits referred to
herein, will constitute the valid and binding obligations of Company, and will
be enforceable in accordance with their respective terms. Delivery
may take place via facsimile transmission.
j. Joint Drafting and Reliance
on Independent Counsel. This Agreement shall be deemed to have
been drafted jointly by the Parties hereto, and no inference or interpretation
against any one party shall be made solely by virtue of such party allegedly
having been the draftsperson of this Agreement. The Parties have each
conducted sufficient and appropriate due diligence with respect to the facts and
circumstances surrounding and related to this Agreement. The Parties
expressly disclaim all reliance upon, and prospectively waive any fraud,
misrepresentation, negligence or other claim based on information supplied by
the other Party, in any way relating to the subject matter of this
Agreement.
k. Acknowledgments and
Assent. The Parties agree that they have read this Agreement
and understand the content herein, and freely and voluntarily assent to all of
the terms herein.
l. Confidentiality. Any
and all information received from the Company, shall be deemed to be
confidential. Confidential information shall be and shall remain the
exclusive property of the Company and Consultant and its respective affiliates
shall protect the confidentiality and prevent unauthorized disclosure of all
confidential information of the Company. It is agreed that such confidential
information may be disclosed to the extent necessary for Consultant to work with
Consultant’s attorneys, accountants, employees, professional advisors, vendors,
suppliers in regard to the business of the Company, provided that such persons
and entities have agreed to be bound by the terms of this Agreement as if a
party hereto. Consultant acknowledges and agrees that the standards
for protecting confidential information shall be in accordance with those
customarily employed by businesses operating in the United States and shall at
all times during the term of this Agreement be vigorously and fully enforced by
the Company. In connection with this agreement to protect confidential
information, it is further agreed that:
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(a)
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Consultant
shall not disclose, communicate or use confidential information of the
Company without the prior express written consent of the Company providing
such confidential information except as expressly provided
herein.
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(b) Each
Party agrees:
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(i)
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that
a confidential relationship between the Parties has been established and,
pursuant to the terms of this Agreement, confidential information shall
only be used for the purposes set forth in this Agreement; (ii) to treat
information disclosed pursuant to the terms of this Agreement as
confidential information and to protect such information with not less a
standard of care than the Party receiving the information uses to protect
its own proprietary information; (iii) to restrict circulation and
disclosure of confidential information within or without its own
organization to employees, consultants and agents who have a need to know
in connection with the purpose of the disclosure, and to ensure such
employees, consultants and agents are informed of the confidential nature
thereof; (iv) to return or destroy any confidential information it
receives promptly upon request of the Party furnishing the information,
or, in any event, upon termination or completion of this Agreement,
together with any and all copies, negatives or reproductions in any medium
made thereof and destroy any derivatives
thereof;
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(c) The
Parties agree that any circumvention or attempted circumvention, or unauthorized
use, disclosure or dissemination of confidential information shall be a material
breach of this Agreement. The Parties agree that such circumvention or the
unauthorized use, disclosure or dissemination of confidential information will
result in immediate and irreparable competitive injury to the non-breaching
party. In the event of a breach of this Agreement, the non-breaching party shall
be entitled to seek injunctive relief and damages from the breaching party,
including all fees, commissions, other equivalent compensation and expenses
which a competent court determines it may have earned had the breach not
occurred, and costs, including reasonable attorney’s fees, incurred by the party
damaged by such unauthorized use, disclosure or circumvention.
m. No Licenses Granted; No
Representations or Warranties. No license,
express or implied in the information is granted to Consultant after receiving
such information other than to use the information in manner and to the extent
authorized by this Agreement. None of the information which may be submitted
and/or exchanged by the Company shall be deemed to constitute any
representation, warranty, assurance or guarantee or inducement of accuracy or
infringement of trademarks, patents, copyrights or any right of privacy or
rights of third persons.
n. Non-Compete. During
the term of this Agreement, Consultant shall not, without written consent of the
Company, enter into any relationship with any other party which directly or
indirectly competes with the business of the Company, or enter into any business
or consulting agreement with any entity which is in the same business as the
Company.
SIGNATURES
IN
WITNESS WHEREOF, this Agreement has been executed by the Parties as of the date
first above written.
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_________________________________
By: Xxxxxxx
Xxxxxxx
Its: Secretary
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SNI
INNOVATIONS, INC.
___________________________________
By: Xxxxx
Xxxxx
Its: President
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A
FACSIMILE COPY OF THIS AGREEMENT SHALL HAVE THE SAME LEGAL EFFECT AS AN ORIGINAL
OF THE SAME.
