CONSULTING SERVICES AGREEMENT
This
Consulting Services Agreement (“Agreement”), dated August 24, 2006, is made by
and between Xxxxxx X. Xxxxxxx, Xx. (“Consultant”), and Secured Diversified
Investment, a Nevada corporation (“Client”).
WHEREAS,
Consultant has extensive background in the area of consulting;
WHEREAS,
Consultant desires to be engaged by Client to provide consulting services to
Client on the terms and subject to the conditions set forth herein (the
“Services”);
WHEREAS,
Client is a publicly held corporation with its common stock trading on the
Over
the Counter Bulletin Board under the ticker symbol “SDVF,” and desires to
further develop its business and customers; and
WHEREAS,
Client desires to engage Consultant to provide the Services in its area 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
agrees to perform for Client the Services. As such Consultant will provide
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. Consultant will perform services including, but not
exclusive to, developing online promotional concepts, events and materials
to
increase website awareness, number of hits, service membership and
eCommerce product sales; and consulting services relating to endorsements,
co-operative promotions and other forms of strategic alliances with a broad
cross-section of industry and commerce.
2. Consideration.
Consultant
shall submit formal invoices to Client from time to time upon completion of
specific consulting and/or other service projects as defined herein and provided
with prior approval by Client, and where cash payment shall be made on fair
market value of services performed. If payment is wholly or partially made
by issue of Client registered, free trading shares of common stock of the
company, than such stock issue shall also be based on the fair market value
of
services performed, and the average bid price for the five days preceding
receipt of invoice by the company from consultant. For the purpose of this
agreement, and under the terms and conditions of this agreement, the
payment made by Client during the term shall include 400,000 shares of SDVF
common stock issued under the client’s stock compensation plan
(S-8).
3. Confidentiality.
Each
party agrees that during the course of this Agreement, information that is
confidential or of a proprietary nature may not be disclosed to any 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 arises out of the negligence
or
willful misconduct of Client.
(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
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. Termination
and Renewal.
(a) Term.
This
Agreement shall become effective on the date appearing next to the signatures
below and terminate twelve (12) months 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.
7. 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.
(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 representa-tions, 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):
If
to
Client:
Xxx
Xxxxxxx
Secured
Diversified Investments, Inc.
0000
Xxxx
Xxxxxxx Xxxxx
Xxxxxxxx
Xxxxxx, Xxxxxxx 00000
If
to
Consultant:
Xxxxxx
X.
Xxxxxxx, Xx.
0000
Xxxxx Xxxxxxxxx
Xxx
Xxxxxxxxx, XX
00000
(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 7 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.
CLIENT:
For
Secured Diversified Investment
By:/s/
Xxx Xxxxxxx
Xxx
Xxxxxxx, CEO
CONSULTANT:
By:
/s/
Xxxxxx X. Xxxxxxx, Xx.
Xxxxxx
X.
Xxxxxxx, Xx.
