CONSULTING AGREEMENT
EXHIBIT
10.29
This
MUTUAL CONSULTING AGREEMENT (the “Agreement”) is made effective as of September
30, 2006 (the “Effective Date”) by and between Nexvu Technologies, LLC., a
Delaware limited liability company (“Nexvu”) and
Xxxx
Xxxxxxxx (“Consultant”).
| 1. |
Term.
This Agreement shall commence upon the Effective Date and remain
in effect
for a period of one (1) year (the “Term”) or upon termination as outlined
in Section 5.
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| 2. |
Consulting
Services.
Nexvu hereby retains Consultant, and Consultant hereby agrees to
provide
the following Consulting Services:
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a.
Operational support of Nexvu. This shall include, but not be limited to any
product sales, sales support, customer presentations and product development
activities and any other support activities mutually agreed upon by both parties
of this Agreement.
b.
Consultant’s performance under this Agreement shall be conducted with due
diligence and in full compliance with the standards consistent with employees
of
Nexvu. Consultant shall provide the Consulting Services in accordance with
the
instructions from Nexvu. The time devoted by Consultant to the performance
of
this Agreement shall be left to the discretion of Consultant subject to any
schedule and budget requirements of Nexvu as communicated to Consultant from
time to time. Consultant agrees to be available for meetings with Nexvu and
any
other Nexvu contractor as requested from time to time by Nexvu and agreed upon
by Consultant, such agreement shall not be unreasonably withheld. If
Consultant’s work requires a license, Consultant represents that it has obtained
that license and that such license is in full force and effect and will remain
in full force and effect during the term of this Agreement.
c.
Prior
to conducting work on under this Agreement and such additional periods of time
required under this Section, Consultant will maintain in full force and effect,
at Consultant’s own expense, insurance coverage as follows: (i) liability
insurance covering acts, errors or omissions arising out of, or failure to
render, professional services related to the Consulting Services under this
Agreement. Such insurance will include limits of coverage of the local currency
equivalent of not less than $500,000 and will remain in effect for not less
than
five (5) years following the date of termination of this Agreement; and (ii)
general liability policy limits will be not less than a combined single limit
for bodily injury and property Damage of $500,000 per occurrence; $500,000
for
Personal Injury Liability; and $1,000,000 general aggregate. All insurance
policies will be written by a company authorized to do business in Illinois.
If
Consultant carries "claims made" policies to satisfy any of the requirements
of
this Section, Consultant shall maintain such policies without endangering
aggregate limits at the below stated minimums, for at least five (5) years
after
termination of the Agreement.
| 3. |
Compensation
for Consulting Services.
Consulting Services will be invoiced in accordance with the following
rates:
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| a. |
Rates:
Consulting Services shall be performed on an hourly basis billed
in
quarter hour increments at the rate of $150 per
hour.
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| b. |
Travel
Time:
Travel time required for the Services will be billed in accordance
with
Section 3 (a); provided, however, that Nexvu shall approve in advance
any
such required travel pursuant to Section
3(d).
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| c. |
Commission:
Any independent sales related activities approved in advance by Nexvu
will
be billed based on a commission rate of 20% of the total sale amount.
Such
commission shall be in lieu of any
Rates.
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| d. |
Expenses:
Nexvu shall reimburse Consultant for all pre-approved Travel and
Expenses
incurred by Consultant in the performance of the Consulting
Services.
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| 4. |
Payment
for Services.
Undisputed payment shall be due within 30 days following the receipt
by
Nexvu of a properly formatted invoice. Any undisputed amount that
is not
paid by Nexvu within this 30 day period shall incur a late charge
of 1.5%
for each month. Consultant shall provide in reasonable detail with
the
invoice a monthly time and activity
records.
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| 5. |
Termination.
Either party may terminate this agreement for convenience with five
(5)
days written notice to the other party. Upon termination, all undisputed
fees owed by Nexvu to Consultant will be paid as outlined in Sections
3
and 4. For this purpose of this Agreement, written notice can include
letter, fax or email. Upon termination or expiration of this Agreement,
Consultant shall return all Nexvu materials and Nexvu Confidential
Information in Consultant’s control or
possession.
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| 6. |
Indemnification.
Each party hereto shall indemnify, defend and hold the other party,
and
its directors, officers and employees harmless from and against any
and
all liability, losses, costs, expenses (including attorneys’ fees),
damages, claims or demands (each , a “Claim”) (including, without
limitation, those based on the injury to or death of any person or
damage
to property), directly or indirectly arising out of, or resulting
from:
(a) any act or omission of such party in performing the Consulting
Services; (b) any Claim by a third party relating to any duties or
obligations of said party, other than duties and obligations pursuant
to
this Agreement for which a party may bring an action for breach of
contract; (c) any breach of warranties or covenants of said party
or use
by the other party of the Deliverables (as defined
herein).
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| 7. |
Scope
of Relationship.
Consultant agrees and acknowledges that Consultant is an independent
contractor and as an independent contractor will not have any authority
to
bind or commit Nexvu or any of its affiliates or any Customer for
whom
services are rendered. Nothing in this Agreement will be deemed or
construed to create a joint venture, partnership or agency relationship,
or any relationship involving fiduciary or trust responsibilities,
between
Nexvu or any Customer on one hand, and Consultant, on the other.
Neither
Consultant nor Consultant’s employees will be considered employees of
Nexvu or any Customer, and will not be eligible to receive or participate
in any benefits, stock, pension or other plans offered to employees
of
Nexvu or any Customer. Consultant is solely responsible for, and
will
defend, indemnify and hold Nexvu and any Customer harmless from and
against, all taxes, tax withholdings, penalties and assessments related
to
the monies paid to Consultant hereunder.
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| 8. |
Consultant
Employees.
Consultant is solely responsible for, and will defend, indemnify
and hold
Nexvu and its officers, directors, employees, customers, successors
and
assigns harmless from and against any and all liability, losses,
costs,
expenses (including attorneys’ fees), damages, claims or demands by any
employee of Consultant for wages, overtime compensation, bonus payments,
insurance coverage, social security, Medicare, unemployment and workers’
compensation coverage and any other employment-related claim, including
but not limited to claims of discrimination, breach of contract,
wrongful
termination, harassment and
retaliation.
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| 9. |
Non-Disclosure
of Confidential Information.
This Agreement creates a confidential relationship between Consultant
and
Nexvu. Consultant acknowledges that, during the Term, Consultant
and
Consultant’s employees will have access to trade secrets and other
confidential or proprietary information relating to the business
of Nexvu
or its customers (“Confidential Information"). Confidential Information
includes, but is not limited to, internal operating manuals, market
survey
data, customer and prospective customer contact lists and files,
marketing
plans and strategies, cost and pricing figures, budgets, forecasts,
business plans, information concerning employees and other information
concerning Nexvu’s business that is not publicly available. Consultant
will not disclose any Confidential Information to any third party.
Consultant will not use the Confidential Information or assist any
third
party in using the same for any purpose or at any time other than
in the
performance of Consultant’s services under this Agreement. Consultant will
return immediately upon Nexvu’s request, but in no event later than the
termination or expiration of the Term, all materials containing or
referring to Confidential Information. Consultant acknowledges that
disclosure or unauthorized use of any Confidential Information will
cause
irreparable harm to Nexvu or its Customers, and Consultant hereby
agrees,
both during and after the Term, to maintain that confidentiality
and to
take all reasonable measures necessary to safeguard Confidential
Information and to prevent the misuse or unauthorized disclosure
of any
Confidential Information in any manner, including, but not limited
to,
assuring its employees are obligated to maintain the same degree
of
confidentiality with respect to Confidential Information as Consultant.
Consultant agrees that all Confidential Information is the property
of
Nexvu.
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| 10. |
Ownership
of Deliverables.
Consultant agrees that all rights in programs, documents, software,
inventions, designs, products, developments, and other all materials
developed by Consultant or any employee of Consultant under this
Agreement, including, but not limited to, all copyright, patent,
trademark, service xxxx, trade dress, trade secret, and all proprietary
rights (the “Deliverables”), belong to Nexvu whether or not Consultant
creates, conceives or develops those materials solely or jointly
with
others. The Deliverables and all rights in the Deliverables will
inure to
and be the property of Nexvu for its exclusive use and benefit. Consultant
agrees that the Deliverables shall constitute “works made for hire,” and
that in the event and to the extent such Deliverables are determined
not
to constitute “works made for hire” as a matter of law, Consultant hereby
irrevocably assigns and agrees to irrevocably assign to Nexvu, without
further consideration, all right, title and interest that Consultant
may
presently have or acquire, free and clear of all liens and encumbrances,
in and to all the Deliverables, and all of Consultant’s right, title and
interest in any patents, copyrights, patent applications or copyright
applications based thereon. Nexvu shall have the exclusive right
to
register any copyrights, trademarks or patents in any or all Deliverables
in its name as owner and author. Consultant agrees to perform, during
and
after the Term, all acts deemed necessary by Nexvu to permit and
assist it
in evidencing, perfecting, obtaining, maintaining, defending and
enforcing
its rights in the Deliverables and the assignments and licenses granted
herein. Consultant hereby irrevocably designates and appoints Nexvu
and
its duly authorized officers and agents, as Consultant’s agents and
attorneys-in-fact, with full power of substitution, to act for or
on
behalf and instead of Consultant to accomplish the foregoing. All
documents that Consultant prepares and all Confidential Information
that
Consultant may learn or to which Consultant may have access during
the
Term are and will remain the exclusive property of Nexvu or its customers.
Upon Nexvu’s request, but in no event later than the termination of the
Term, Consultant will return to Nexvu, all copies, excerpts and summaries
of Nexvu’s property, including, but not limited to, all equipment,
materials, documents, agreements, files, vendor lists or files, customer
and potential customer lists or files, computer software or hardware,
computer programs (whether on floppy disks, mini disks, CDs, hard
drives
or other electronic media), instruction manuals, proposals, reports,
correspondence, records, business cards and all other documents available
to, or used by Consultant to render the Consulting Services hereunder
or
otherwise, under Consultant’s possession or
control.
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| 11. |
Limitation
of Liability.
IN NO EVENT WILL NEXVU BE LIABLE FOR ANY CONSEQUENTIAL, SPECIAL,
INDIRECT
OR INCIDENTAL DAMAGES IN CONNECTION WITH THIS AGREEMENT, WHETHER
BASED IN
CONTRACT, TORT, OR OTHERWISE, EVEN IF NEXVU HAS BEEN ADVISED OF THE
POSSIBILITY OF THOSE DAMAGES. IN NO EVENT WILL NEXVU’S LIABILITY TO
CONSULTANT OR ANY THIRD PARTY EXCEED FEES PAID BY NEXVU TO CONSULTANT
IN
THE SIX MONTHS PRIOR TO WHEN THE ACTION OR LIABILITY FIRST
AROSE.
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| 12. |
Interference
With Nexvu Business.
Consultant agrees that for the Term and for a period of one (1) year
following any expiration or termination of this Agreement, Consultant
shall not, for itself or any third party, directly or indirectly
divert or
attempt to divert from Nexvu any business in which Nexvu is engaged,
including, without limitation, the solicitation of or interference
with
any of its customers, clients or vendors. During the term of this
Agreement and for one (1) year thereafter, Consultant will not encourage
or solicit any employee or consultant of company (or any of its
affiliates) to leave Nexvu for any
reason.
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| 13. |
Assignment.
Consultant shall not assign, transfer or subcontract any right in
or
obligation arising under this Agreement without Nexvu’s prior written
consent. Any assignment in violation of this paragraph shall be void.
This
Agreement shall be binding on and inure to the benefit of each party’s
heirs, executors, legal representatives, successors and permitted
assigns.
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| 14. |
Complete
Agreement. This
Agreement is the sole agreement between the parties relating to the
subject matter of this Agreement and supersedes all proposals or
prior
agreements (oral or written) and all other communications between
the
parties relating to the subject matter of this
Agreement.
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| 15. |
Assurances.
Each party hereby represents and warrants that all representations,
warranties, recitals, statements and Information provided to each
other
under this Agreement are true, correct and accurate as of the date
of this
Agreement to the best of their
knowledge.
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| 16. |
Amendment
and Modifications.
A
waiver, alteration, modification or amendment of this Agreement shall
be
void unless such waiver, alteration, modification or amendment is
in
writing and signed by the respective parties
hereto.
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| 17. |
Severability. If
a provision of this Agreement is rendered invalid the remaining provisions
shall remain in full force and
effect.
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| 18. |
Governing
Law.
This Agreement shall be governed by the laws of the State of
Illinois.
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| 19. |
Waiver:
Waiver of breach of this Agreement shall not constitute a waiver
of any
other breach. Failure to enforce any provision of this Agreement
shall not
constitute a waiver or create an estoppel from enforcing such
provision.
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IN
WITNESS WHEREOF, the parties have caused this Agreement to be executed by their
authorized representatives and made effective as of the Effective
Date.
Nexvu
Technologies, LLC.
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By:
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/s/
Xxxxx X. Xxxx
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Authorized
Signature
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| Xxxxx X. Xxxx | ||
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Name
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| Chief Financial Officer | ||
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Title
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Date:
September 30, 2006
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Consultant
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By:
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/s/RoryHerriman
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Authorized
Signature
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Name:
Xxxx Xxxxxxxx
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Date:
September 30, 2006
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