CONSULTING AGREEMENT
This consulting agreement (this "Agreement") is made this 17th day of June,
2005, between CIMBIX CORPORATION, a bulletin board public company ("CBXC"),
and XXX XXXXXXX ("XXXXXXX") a Consultant (collectively the "Parties" and
each individually a "Party").
RECITALS:
BALCONI is a consultant who desire to provide consulting services to CBXC;
and
CBXC desires to retain BALCONI as a product development and due diligence
consultant.
NOW THEREFORE, in consideration of their mutual promises made herein, and
for other good and valuable consideration, receipt of which is hereby
acknowledged by each Party, the Parties, intending to be legally bound,
hereby agree as follows:
I. Recitals. The Parties agree that the foregoing recitals are true
and correct and are incorporated herein by reference.
II. Engagement. CBXC hereby engages BALCONI and CBXC hereby accepts
such engagement upon the terms and conditions set forth in this Agreement.
A. Duties: BALCONI is engaged by CBXC as a product development and due
diligence consultant, to represent CBXC and its business in the
United States; to assist CBXC in expanding its business operations in
"business consulting" services and trade. BALCONI will report
directly to the board of directors of CBXC. The term of this Agreement
begins immediately.
B. Terms: Subject to the terms of this Agreement relating to termination,
this Agreement shall continue in full force and effect for a term of
twelve (12) months from the date thereof, and may be renewed for
successive periods of twelve (12) months thereafter by the mutual
written agreement of the Parties hereto made at least one (1) month
prior to the expiration of such term.
C. Fee Structure:
1. Time is of the Essence: Time is of the essence with respect to
the Parties' respective obligations under this Agreement.
2. Amount of Fee: CBXC hereby agrees to issue to BALCONI, and BALCONI
agrees to accept from CBXC, three hundred thousand (300,000) shares of
common stock of CBXC, which will be registered by CBXC on a Registration
Statement Form S-8 with the Securities and Exchange Commission.
3. Timing of Payment of Fee: CBXC shall pay and release Shares to
BALCONI upon satisfaction of performance from time to time in stages
commencing within thirty (30) days from filing of the Registration
Statement. Failure of CBXC to finally pay any Shares within thirty (30)
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 BALCONI and will be sufficient cause for immediate
termination of this Agreement by BALCONI, and such breach will cause
this Agreement to be null and void.
D. Independent Contractors: In all matters relating to this Agreement and
otherwise, the Parties hereto shall be and act as independent
contractors, neither shall be the employee or agent of the other, and
each shall assume any and all liabilities for its own acts. As a result
of his independent contractor status, BALCONI, and not CBXC, shall
be responsible for any and all income taxes and any and all other
employment related taxes or assessments which may be required of
BALCONI in his jurisdiction. Neither Party shall have any authority to
create any obligations, express or implied, on behalf of the other
Party and neither Party shall have any authority to represent the other
Party as an employee or in any capacity other than as herein provided.
III. Termination: This Agreement may be terminated by written notice of
either Party hereto forwarded to the other Party hereto. This Agreement shall
be binding on the Parties hereto for the Term provided herein, unless
terminated as provided herein.
IV. Arbitration: Any controversy or claim arising out of or relating to this
Agreement, or the breach thereof, or its interpretation or effectiveness, and
which is not settled between the Parties themselves, shall be settled by binding
arbitration in Washington and judgment upon the award may be entered in any
court having jurisdiction thereof. Nothing, however, contained herein shall
limit CBXC's rights to injunctive relief as set out in Paragraph V of this
Agreement The prevailing Party in any litigation, arbitration or mediation
relating to collection of fees, or any other matter under this Agreement, shall
be entitled to recover all its costs, if any, including without limitation,
reasonable attorney's fees, from the other Party for all matters, including, but
not limited to, appeals.
V. Injunctive Relief: BALCONI agrees that his violation or threatened
violation of any of the provisions of this Agreement shall cause immediate
and irreparable harm to CBXC and, in such event, an injunction restraining
BALCONI from such violation may be entered against BALCONI in addition
to any other relief available to CBXC.
VI. Representations and Warranties: BALCONI represents, warrants,
covenants and agrees that BALCONI has a right to enter into this Agreement;
that BALCONI is not a Party to any agreement or understanding, whether
written or oral, which would prohibit BALCONI's performance of his
obligations hereunders, and BALCONI is not in possession of any proprietary
information belonging to another party which BALCONI is legally prohibited
from using. A breach of this Paragraph VI shall be ground for immediate
VII. Indemnification and Hold Harmless Clause: BALCONI agrees to indemnify
and hold CBXC and its affiliates, control persons, directors, officers,
employees and agents (each an "Indemnified Person") harmless from and
against all losses, claims, damages, liabilities, costs or expenses, including
those resulting from any threatened or pending investigation, action, proceeding
or dispute whether or not CBXC or any such other Indemnified Person is a party
to such investigation, action, proceeding or dispute, arising out of CBXC's
entering into or performing services under this Agreement, or arising out of
any matter referred to in this Agreement. This indemnity shall also include
CBXC's and/or any such other Indemnified Person's reasonable attorneys'
and accountants' fees and out-of-pocket expenses incurred in, and the cost of
CBXC's personnel whose timeis spent in connection with, such investigations,
actions, proceedings or disputes which fees, expenses and costs shall be
periodically reimbursed to CBXC and/or to any such other Indemnified Person
by BALCONI as they are incurred; provided however, that the indemnity herein
set forth shall not apply to an Indemnified Person where a court of competent
jurisdiction has made a final determination that such Indemnified Person acted
in a grossly negligent manner or engaged in willful misconduct in the
performance of the services hereunder which gave rise to the loss, claim,
damage, liability, cost or expense sought to be recovered
hereunder (but pending any such final determination the indemnification and
reimbursement provisions hereinabove set forth shall apply and BALCONI shall
perform its obligations hereunder to reimburse CBXC and/or each such other
Indemnified Person periodically for its, his or their fees, expenses and costs
as they are incurred). BALCONI also agrees that no Indemnified Person shall
have any liability (whether direct or indirect, in contract or tort or
otherwise) to BALCONI for or in connection with any act or omission to act as
a result of its engagement under this Agreement except for any such liability
for losses, claims, damages, liabilities or expenses incurred by BALCONI is
found in a final determination by a court of competent jurisdiction to have
resulted from such Indemnified Person's gross negligence or willful misconduct.
If for any reason, the foregoing indemnification is unavailable to CBXC
or any such other Indemnified Person or insufficient to hold it harmless, then
BALCONI shall contribute to the amount paid or payable by CBXC or any such other
Indemnified Person as a result of such loss, claim, damage or liability in such
proportion as is appropriate to reflect not only the relative benefits received
by BALCONI and its shareholders on the one hand and CBXC or any such other
Indemnified Person on the other hand, but also the relative fault of BALCONI and
CBXC or any such other Indemnified Person, as well as any relevant equitable
considerations; provided that in no event will the aggregate contribution by
CBXC and any such other Indemnified Person hereunder exceed the amount of fees
actually received by CBXC pursuant to this Agreement. The reimbursement,
indemnity and contribution obligations of BALCONI hereinabove set forth shall be
in addition to any liability which BALCONI may otherwise have and these
obligations and the other provisions hereinabove set forth shall be binding upon
and inure to the benefit of any successors, assigns, heirs and personal
representatives of BALCONI, CBXC and any other Indemnified Person.
The terms and conditions hereinabove set forth shall survive the
termination and expiration of this Agreement and shall continue indefinitely
thereafter.
VIII. Notice: Any notice given or required to be given under this Agreement
shall be in writing and service thereof shall be sufficient if sent be hand or
by telex or telegram, facsimile transmission or other similar means of
communication if confirmed by mail, or by certified mail, return-receipt
requested, with postage prepaid, directly to the Parties' respective addresses
herein above set forth. Each Party may, from time to time, by like written
notice, designate a different address to which notice should thereafter be sent.
IX. Survival: The covenants contained in this Agreement shall survive the
termination of this Agreement, for whatever reason, and shall be binding on the
Parties.
X. Binding Effect: The terms of the Agreement shall be binding upon the
respective Parties hereto, their heirs, their owners, co-owners, partners,
associates, employers, affiliates, subsidiaries, parent companies, nominees,
representatives, employees, agents, consultants and successors and assigns.
XI. Assignment: This Agreement and the rights and obligations hereunder may
not be assigned or delegated by either Party without the prior consent of the
other Party.
XII. Choice of Law: This Agreement is made in Washington, and all questions
related to the execution, construction, validity, interpretation and performance
of this Agreement and to all other issues or claims arising hereunder, shall be
governed and controlled by the laws of Washington.
XIII. Venue: The state of Washington shall be proper venue for any and all
litigation and other proceeds involving this Agreement.
XIV. Counterparts: This Agreement may be signed in more than one
counterpart, in which case each counterpart shall constitute an original of
XV. Severability: In the event that any term, covenant, or condition of
this Agreement or the application thereof to any Party or circumstances
shall, to any extent, be invalid or unenforceable, the remainder of this
Agreement, or the application of such term, covenant or condition to Parties
or circumstances other than those as to which it is held invalid or non
enforceable, shall not be affected thereby; and each term, covenant, or
condition of this Agreement shall be valid and shall be enforced to the
XVI. Modification: No amendment, modification, or waiver of this Agreement
or any provision hereof shall be valid unless in writing duly signed by the
Parties hereto, which writing specifically refers to this Agreement and states
that it is an amendment, modification, or waiver.
XVII. Entire Agreement: This Agreement represents the entire agreement
between the Parties to this Agreement concerning its subject matter, and any
and all prior representations and agreements with respect to such subject
matter, if any, are merged herein and are superseded by this Agreement.
XVII. Construction: Paragraph headings are for convenience only and are not
intended to expand or restrict the scope or substance of the provisions of this
Agreement. Whenever used herein, the singular shall include the plural, the
plural shall include the singular, and pronouns shall be read as masculine,
feminine, or neuter as the context requires.
ACCEPTED:
CONSULTANT CIMBIX CORPORATION
By: /s/ Xxx Xxxxxxx By: /s/ Xxxxxx Xxxxxx
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Xxx Xxxxxxx Xxxxxx Xxxxxx
Consultant President/Chief Executive Officer
