GMV HOLDINGS, LLC SERVICES AGREEMENT
Exhibit
10.1
This
Services Agreement (“Agreement”) is made and entered into as of December 1,
2008, (“Effective Date”), by and between GMV Holdings, LLC, a Nevada limited
liability company (“GMV”), having a
principal place of business at 000 00xx Xx,
Xxxxxxxxx Xxxxx, XX 00000 and GMV Wireless, Inc. (“Contractor”) a
Nevada corporation,
having a principal place of business at 00000 Xxxxxxx Xxxx, Xxxxx 000,
Xxxxxx, XX 00000.
RECITALS
A. WHEREAS, GMV is a national provider of
WIFI Internet services to the hospitality, timeshare, apartment and planned
communities;
B. WHEREAS, Contractor is a Business
Development and Capital Investment Company focusing on wireless
telecommunications; and
C. WHEREAS, both GMV and Contractor desire
to enter into this Agreement for the purpose of Contractor providing customers
and capital to GMV.
NOW, THEREFORE, in consideration
of the foregoing and the obligations herein made and undertaken, as well as
other good and valuable consideration, the sufficiency of which is hereby
acknowledged, the parties, intending to be legally bound, covenant and agree as
follows:
|
|
1.
|
Definitions
|
1.1 “GMV”
shall mean GMV Holdings, LLC. and its employees, officers, directors, agents,
consultants or independent contractors or any subsidiary or other affiliate of
GMV, their employees, officers, directors, agents, consultants, or independent
contractors who provide services to Contractor pursuant to this
Agreement.
1.2 “Contractor”
shall mean GMV Wireless, Inc. and its employees, officers, directors, agents,
consultants, or independent contractors or any subsidiary or other affiliate of
Contractor, including their employees, officers, directors, agents, consultants,
or independent contractors.
1.3 “Client”
shall mean an individual that desires to enter into a contract with GMV for the
purpose of receiving WIFI services from GMV.
1.4 “Client
Information” shall mean all information and material which is personal to the
client including, but not limited to, client’s name, address, telephone number,
social security number, credit card accounts, financial information, employment
information, marital and information.
1.5 “Confidential
Information” means all information and material which is proprietary to GMV,
whether or not marked as “confidential” or “proprietary” and which is disclosed
to or obtained by Contractor, which relates to the Parties past, present or
future research, development or business activities. Confidential
Information is all information or materials prepared by or for the Parties and
includes, without limitation, all of the following: data, source
code, object code, documentation, diagrams, flow charts, research, development,
processes, procedures, “know-how,” new product or new technology information,
product prototypes, product copies, manufacturing, development or marketing
techniques and materials, development or marketing timetables, strategies
related to clients, suppliers or personnel, pricing policies and financial
information, client and prospective client lists, and other information of a
similar nature, whether or not reduced to writing or other tangible form, and
any other Trade Secrets or nonpublic business
information. Confidential Information does not include any
information which (a) was in the lawful and unrestricted possession of
Contractor prior to its disclosure by the Parties, (b) is or becomes generally
available to the public by acts other than those of Contractor after receiving
it, or (c) has been received lawfully and in good faith by Contractor from a
third party who did not derive it from Contractor.
1.6 “Trade
Secrets” shall mean any scientific or technical data, information, design,
process, procedure, formula, or improvement that is commercially valuable to
GMV, kept confidential by GMV, and is not generally known in the
industry.
2. Retention of
Services. GMV hereby retains Contractor to perform services
for GMV’s WIFI Internet solution. Such services include
identification of potential clients desiring WIFI service at their property and
the capital financing of the installtion and equipment.
3.1 Fees. Contractor
will provide the financing of the equiptment and the expenses incurred in
Section 3.2 (on a case by case basis) for select GMV ‘s customers (“Select
Customers”) and GMV will pay Contractor fees for each Select Customer that
successfully signs a contract for GMV’s WIFIF Internet Service. Fees
will be paid upon the following: (1) Client’s acceptance of the terms in the
Client Services Contract; (2) GMV’s execution of the contract and 3) Contactor’s
funding said transaction. Unless the facts and circumstances
surrounding the agreement between GMV and its Select Customer prohibit the same
or make it otherwise impractical, Contractor will be the preferred provider for
the services set forth herein for each of GMV’s prospective
customers.
3.1.1 Entrance
Fee: GMV will pay to Contractor a fee equal to 80% of the
gross profit from all Select Customers. All fee payments paid to Contractor
under this Section 3.1.1 will be paid on the 15th of each
calendar month for installations completed in the proceeding month.
3.2 Expenses. Contractor
shall be responsible for and pay all expenses incurred by GMV in providing
services to Select Customers.
4. Independent Contractor
Relationship. Contractor’s relationship with GMV will be that
of an independent contractor, and nothing in this Agreement is intended to, or
should be construed to, create a partnership, agency, joint venture or
employment relationship. Contractor will not be entitled to any of
the benefits that GMV may make available to its employees, including, but not
limited to, group health, life insurance, profit-sharing or retirement benefits,
paid vacation, holidays or sick leave. Contractor will not be
authorized to make any representation, contract or commitment on behalf of GMV
unless specifically requested or authorized in writing to do so by the President
of GMV. Contractor will be solely responsible for obtaining any
business or similar licenses required by any federal, state or local
authority. In addition, Contractor will be solely responsible for,
and will file on a timely basis, all tax returns and payments required to be
filed with, or made to, any federal, state or local tax authority with respect
to the performance of services and receipt of fees under this
Agreement. No part of Contractor’s compensation will be subject to
withholding by GMV for the payment of any social security, federal, state or any
other employee payroll taxes.
4.1 Method of Performing
Services; Results. In accordance with GMV’s objectives,
Contractor will determine the method, details and means of performing the
services required by this Agreement. GMV shall have no right to, and
shall not, control the manner or determine the method of performing Contractor’s
services. Contractor shall provide the services for which Contractor
is engaged to the reasonable satisfaction of GMV. GMV may suggest to
Contractor, from time to time, methods or strategies GMV believes may assist
Contractor in the performance of Contractor’s services under this
Agreement.
5. Applicable
Laws. Contractor agrees to abide by all Federal, State
and local laws regulating the industry. By way of example and not
limitation, Contractor agrees not to violate any Telemarketing, Do-Not-Call,
Spam, Federal Trade Communications regulations and other such laws or
regulations in the performance of this Agreement.
6. Advertising. Contractor
must obtain prior written approval from GMV for all advertising including print,
web based, radio or television advertising related to the performance of this
Agreement.
7. Intellectual Property
Rights.
|
|
7.1
|
Confidential
Information.
|
(a) Definition of Confidential
Information. “Confidential Information” as used in this
Agreement shall mean any and all technical and non-technical information
including patent, copyright, trade secret, and proprietary information,
techniques, sketches, drawings, models, inventions, know-how, processes,
apparatus, equipment, algorithms, software programs, software source documents,
and formulae related to the current, future and proposed products and services
of GMV, GMV’s suppliers and customers, and includes, without limitation, GMV
Innovations, GMV Property (defined below), and GMV’s information concerning
research, experimental work, development, design details and specifications,
engineering, financial information, procurement requirements, purchasing
manufacturing, customer lists, business forecasts, sales and merchandising and
marketing plans and information.
(b) Nondisclosure and Nonuse
Obligations. Except as permitted in this paragraph, Contractor
shall neither use nor disclose the Confidential
Information. Contractor may use the Confidential Information solely
to perform services for the benefit of GMV. Contractor agrees that
Contractor shall treat all Confidential Information of GMV with the same degree
of care as Contractor accords to Contractor’s own Confidential Information, but
in no case less than reasonable care. If Contractor is not an
individual, Contractor agrees that Contractor shall disclose Confidential
Information only to those of Contractor’s employees who need to know such
information, and Contractor certifies that such employees have previously
agreed, either as a condition of employment or in order to obtain the
Confidential Information, to be bound by terms and conditions substantially
similar to those terms and conditions applicable to Contractor under this
Agreement. Contractor agrees not to communicate any information to
GMV in violation of the proprietary rights of any third party. Contractor will
immediately give notice to GMV of any unauthorized use or disclosure of the
Confidential Information and agrees to assist GMV in remedying any such
unauthorized use or disclosure of the Confidential Information.
(c) Exclusions from
Nondisclosure and Nonuse Obligations. Contractor’s obligations
under Paragraph 7.1 (b) (“Nondisclosure and Nonuse Obligations”) with
respect to any portion of the Confidential Information shall not apply to any
such portion which Contractor can demonstrate: (a) was in the
public domain at or subsequent to the time such portion was communicated to
Contractor by GMV through no fault of Contractor; (b) was rightfully in
Contractor’s possession free of any obligation of confidence at or subsequent to
the time such portion was communicated to Contractor by GMV; or (c) was
developed by employees of Contractor independently of and without reference to
any information communicated to Contractor by GMV. A disclosure of
Confidential Information by Contractor, either: (a) in response
to a valid order by a court or other governmental body; (b) otherwise
required by law; or (c) necessary to establish the rights of either party
under this Agreement, shall not be considered to be a breach of this Agreement
or a waiver of confidentiality for other purposes; provided, however, that
Contractor shall provide prompt prior written notice thereof to GMV to enable
GMV to seek a protective order or otherwise prevent such
disclosure.
7.2 Ownership and Return of GMV
Property. All materials (including, without limitation,
documents, drawings, models, apparatus, sketches, designs, lists, all other
tangible media of expression), equipment, documents, data, and other property
furnished to Contractor by GMV, whether delivered to Contractor by GMV or made
by Contractor in the performance of services under this Agreement (collectively,
the “GMV Property”) are the sole and exclusive property of GMV or GMV’s
suppliers or customers, and Contractor hereby does and will assign to GMV all
rights, title and interest Contractor may have or acquire in the GMV
Property. Contractor agrees to keep all GMV Property at Contractor’s
premises unless otherwise permitted in writing by GMV. At the end of
this Agreement, or at GMV’s request, and no later than five (5) days after
the end of this Agreement or GMV’s request, Contractor shall destroy or deliver
to GMV, at GMV’s option: (a) all GMV Property; (b) all
tangible media of expression in Contractor’s possession or control which
incorporate or in which are fixed any Confidential Information; and
(c) written certification of Contractor’s compliance with Contractor’s
obligations under this subparagraph.
8. Term and
Termination.
8.1 Term. The
initial term of this Agreement shall one (1) year from the Effective Date set
forth in the first paragraph of this Agreement (“Initial
Term”). Thereafter, this Agreement shall automatically renew for
successive one (1) year periods unless either party provides written notice to
the other party of its desire not to renew within thirty (30) days of the next
anniversary date at which time the automatic renewal is scheduled to
occur.
8.2 Termination for
Breach. This Agreement may be terminated by either party upon
ten (10) days’ prior written notice, if the other party breaches any term
hereof, and the breaching party fails to cure such breach within the ten-day
(10) period.
8.3 Termination with
Notice. Either party may terminate this Agreement at any time
upon Thirty (30) days written notice to the other party. However, in
event of a termination by GMV, Contractor shall be entitled to its revenues
hereunder for the useful life of any equipment purchased with funding from the
Contractor.
8.4 Return of GMV
Property. Upon termination of this Agreement for any reason,
Contractor shall promptly return to GMV all copies of any GMV data, records, or
materials of whatever nature or kind, including all materials incorporating the
Confidential Information of GMV and its Clients. Contractor shall also furnish
to GMV all work in progress or portions thereof, including all incomplete
work.
8.5 Final
Invoice. Within thirty (30) days of termination of this
Agreement for any reason. GMV shall pay Contractor for any fees theretofore
accrued, but unpaid under this Agreement. Upon payment in full of all accrued,
but unpaid amounts so invoiced, GMV shall have no further liability or
obligation to pay Contractor.
9. Noninterference With
Business. During this Agreement, and for a period of one
(1) year immediately following this Agreement’s termination or expiration,
Contractor agrees not to interfere with the business of GMV in any
manner. By way of example and not limitation, Contractor agrees not
to: (1) solicit or induce any employee or independent contractor
to terminate or breach an employment, contractual or other relationship with
GMV; or (2) interfere with, impair, disrupt or damage GMV’s relationship
with any of its current or prospective clients by soliciting or encouraging
others to solicit any of them for the purpose of diverting or taking away
business from GMV.
10. General
Provisions.
10.1 Successors and
Assigns. The rights and obligations of GMV under this
Agreement shall inure to the benefit of and shall be binding upon the successors
and assigns of GMV. Contractor may not assign its rights, subcontract
or otherwise delegate its obligations under this Agreement without GMV’s prior
written consent. This shall not, however, prevent Contractor from
employing employees to assist in Contractor’s rendering of services to GMV under
Contractor’s supervision, as deemed necessary by Contractor.
10.2 Contractor
Indemnification. Contractor shall be liable for, and agrees to
pay, any and all debts, claims, demands, liabilities, expenses, losses,
injuries, damages and reasonable attorneys’ fees arising out of Contractor's
services rendered hereunder. Further, Contractor shall indemnify and
hold GMV harmless from and against any and all debts, claims, demands,
liabilities, expenses, losses, injuries, damages for injury to or death of
persons, including, but not limited to, Contractor's employees, if any, and
customers and employees of GMV, and damages or destruction to property,
including, but not limited to property of GMV, resulting, in any manner, from
Contractor's performance of services hereunder.
10.3 Agreement to
Arbitrate. Contractor and GMV agree to arbitrate any
controversy, claim or dispute between them arising out of or in any way related
to this Agreement, the independent contractor relationship between Contractor
and GMV, and any disputes upon termination of the independent contractor
relationship, including claims for violation of any local, state or federal law,
statute, regulation or ordinance or common
law. The arbitration will be conducted in San Diego, California, by a
single neutral arbitrator and in
accordance with the American Arbitration Association’s (“AAA”) then current
rules for resolution of commercial disputes. The arbitrator shall
have the power to enter any award that could be entered by a judge of the trial
court of the State of California, and only such power, and shall follow the
law. In the event the arbitrator does not follow the law, the
arbitrator will have exceeded the scope of his or her authority and the parties
may, at their option, file a motion to vacate the award in court. The
parties agree to abide by and perform any award rendered by the
arbitrator. Judgment on the award may be entered in any court having
jurisdiction thereof.
10.4 Survival. The
definitions contained in this Agreement and the rights and obligations contained
in Paragraphs 7 (“Intellectual Property Rights”), Paragraph 9
(“Noninterference with Business”) and Paragraph 10 (“General Provisions”)
will survive any termination or expiration of this Agreement.
10.5 Notices. Any
notice required or permitted by this Agreement shall be in writing and shall be
delivered as follows, with notice deemed given as
indicated: (a) by personal delivery, when delivered personally;
(b) by overnight courier, upon written verification of receipt; (c) by
telecopy or facsimile transmission, upon acknowledgment of receipt of electronic
transmission; or (d) by certified or registered mail, return receipt
requested, upon verification of receipt. Notice shall be sent to the
addresses set forth above or to such other address as either party may specify
in writing.
10.6 Governing
Law. This Agreement shall be governed in all respects by the
laws of the United States of America and by the laws of the State of California,
as such laws are applied to agreements entered into and to be performed entirely
within California between California residents. Each of the parties
irrevocably consents to the exclusive personal jurisdiction of the federal and
state courts located in California, as applicable, for any matter arising out of
or relating to this Agreement, except that in actions seeking to enforce any
order or any judgment of such federal or state courts located in California,
such personal jurisdiction shall be nonexclusive.
10.7 Severability. If
any provision of this Agreement is held by a court of law to be illegal, invalid
or unenforceable, (i) that provision shall be deemed amended to achieve as
nearly as possible the same economic effect as the original provision, and
(ii) the legality, validity and enforceability of the remaining provisions
of this Agreement shall not be affected or impaired thereby.
10.8 Waiver; Amendment;
Modification. No term or provision hereof will be considered
waived by GMV, and no breach excused by GMV, unless such waiver or consent is in
writing signed by GMV. The waiver by GMV of, or consent by GMV to, a
breach of any provision of this Agreement by Contractor, shall not operate or be
construed as a waiver of, consent to, or excuse of any other or subsequent
breach by Contractor. This Agreement may be amended or modified only
by mutual agreement of authorized representatives of the parties in
writing.
10.9 Injunctive Relief for
Breach. Contractor’s obligations under this Agreement are of a
unique character that gives them particular value. Contractor’s
breach of any of such obligations will result in irreparable and continuing
damage to GMV for which there will be no adequate remedy at
law. Accordingly, in the event of such breach, the parties agree that
GMV will be entitled to injunctive relief and/or a decree for specific
performance, and such other and further relief as may be proper (including
monetary damages if appropriate.
10.10 Entire
Agreement. This Agreement constitutes the entire agreement
between the parties relating to this subject matter and supersedes all prior or
contemporaneous oral or written agreements concerning such subject
matter. The terms of this Agreement will govern all services
undertaken by Contractor for GMV.
IN
WITNESS WHEREOF, the parties have executed this Agreement on the dates shown
below.
|
GMV
HOLDINGS, LLC
|
GMV
WIRELESS, INC
|
|
|
By:/s/ Don Calabira
Xxx
Xxxxxxxx, Partner
|
By: /s/ Xxx
Xxxxxxxx
Xxx
Xxxxxxxx, CEO & President
|
|
|
Date:
as of December 1, 2008 _____
|
Date: as
of December 1, 2008
_____
|
