Services Agreement
Exhibit
10.28
This
Services Agreement ("Agreement") is
entered into this 27th day
of August, 2007 between XxxxxXxxxxx.xxx,
Inc. ("PE"), A Delaware corporation
having its offices at 000 Xxxxx Xxxx Xx., Xxxxxxxx,
XX, 00000
and Axis Consulting
Services, LLC,
a
Delaware Limited
Liability Corporation
located at 0
Xxxx
Xxxxx
Xxxxxxx, Xxxxxxxx, XX 00000 ("Consultant"), and collectively being referred
to as the "Parties" or
individually as a "Party".
Recitals:
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A.
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Whereas, PE is a
marketer of liquid energy products and other related energy products and
services ("Products").
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B.
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Whereas,
PE owns and operates a proprietary e-commerce technology platform that
facilitates the sale
and fulfillment of Products ("System").
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C.
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Whereas, PE, with
the use of the System,
manages the delivery
of Products to PE's residential
and commercial customers, which includes consumers who purchase
directly from PE, as well as consumers who use the PE System
to purchase from a PE
retail
channel partner,
collectively
referred
to as
"Customers".
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D.
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Whereas, PE
maintains a network of independent fuel distributors and other
companies whom under agreement with PE, provide services to PE and/or
Customers.
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E.
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Whereas,
Consult t has certain knowledge, experience and skills that are desirable
to PE and the Parties
have determined it is desirable to enter into an
agreement to
secure the services of
Consultant.
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Therefore,
in
consideration of the respective covenants contained in the Agreement, the
parties agree as follows:
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1.
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Term. Unless earlier terminated in accordance with Section 8, this agreement will include two
phases.
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a.
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Phase
1:
Development and
approval
of a comprehensive
marketing
plan
for
The
Energy Store, as further described in paragraph
2, such development is expected to require an approximate
half time commitment of a Full
Time
Equivalent ("FTE"), and a duration of two or
three
months commencing on or about August 27, 2007,
and
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b.
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Phase
2: Development, merchandising and management of The
Energy
Store, as
further described
in
paragraph 2.
The term
of this phase
will commence
at the conclusion of Phase 1
and
extend until
December 31, 2008 and is expected to require the minimum
commitment
of one FTE. At the end of the term, the Agreement will automatically
terminate, unless extended in writing by agreement of the
Parties.
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2.
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Obligations of Consultant. During the
term of the Agreement, Consultant will serve as Manager of The
Energy Store, an e-commerce retail sales portal for energy
products and services, the scope and responsibilities and services as
further described in the PE position description for
Manager-The Energy
Store, such position description is attached for
reference.
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3.
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Relationship of the Parties. The
relationship of the Consultant with PE shall be that of an independent
contractor and not an employee. Consultant shall be free from the control
of
PE
with
respect to Consultant's performance of the services as outlined in
Section 2. Neither Party shall have the authority to contract for or bind
the other Party in any manner and shall not represent itself as an agent
of the other or as otherwise authorized to act for or on behalf of the
other.
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4.
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Fees. Consultant shall be paid a monthly
fee of $2,750 for Phase 1 and a monthly fee of $5,600 for Phase
2. PE and Consultant shall have the option, but not the obligation, to
establish a performance based
incentive plan based
upon the achievement
of
performance
objectives,
as
mutually
agreed to by
the Parties. Consultant shall invoice PE at the beginning of each calendar
month. Payment is to be
made by PE within thirty (30) days of invoice
date.
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5.
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Expenses. PE will reimburse Consultant
for all reasonable, direct, out-of-pocket business travel expenses
incurred while performing services as outlined in Agreement, including
lodging, meals, mileage, tolls and parking. Such expenses shall not apply
to travel expenses incurred for travel to PE
headquarters.
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6.
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Confidential Information. During the term
of this Agreement, Consultant may be given access to confidential,
proprietary, or other sensitive information or trade secrets of PE
("Confidential Information"). Consultant agrees to treat all Confidential
Information as described in PE's standard Nondisclosure Agreement, such
Nondisclosure Agreement is attached for reference and must be executed
by
Consultant in order for this Agreement to be
effective.
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7.
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Intellectual Property. All data,
materials, software, intellectual property, processes, patents, copyrights
and other information developed in conjunction with the performance of
this Agreement shall be the property of PE. Upon termination of this
Agreement, Consultant shall deliver to PE, without demand, all materials,
data, software, intellectual property, manuals, books, reports and
summaries developed and used in the performance of this
Agreement.
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8.
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Default. In the event that Consultant
fails to satisfy its obligations under this Agreement, PE, using
reasonable judgment,
can terminate
this
Agreement upon 30
days
written notice, such decision in the sole discretion of
PE.
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9.
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Severability. If any provision of this
Agreement is held to be invalid or unenforceable, the remaining provisions
of this Agreement will remain in full
force.
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10.
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Entire Agreement. This Agreement, in
combination with PE's Nondisclosure Agreement, constitutes the complete
agreement between the Parties and that no other agreements, either written
or oral, exist between the Parties.
This Agreement shall
be governed by the laws of the state of New
Jersey.
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In
witness whereof, the Parties have caused their authorized
representatives
to execute this
Agreement effective
as of the date written above.
| XxxxxXxxxxx.xxx, Inc. | AXIS CONSULTING SERVICES, LLC |
| By: /s/ Xxxx Xxxxxx | By: /s/ Xxxxxx Xxxxxx |
| Name: Xxxx Xxxxxx | Name: Xxxxxx Xxxxxx |
| Title: C.O.O. | Title: President |
