SALES AND MARKETING CONSULTING AGREEMENT
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THIS SALES AND MARKETING CONSULTING AGREEMENT (this "Agreement") is entered
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into and is effective as of June 15, 2001 (the "Effective Date") by and between
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E-XXX, INC., a Nevada corporation with principal offices at 00000 Xxxxxxxx Xxxx,
Xxxxx 000, Xxxxx, Xxxxxxx 00000 ("Company") and XXXX XXXXXXXX, an individual,
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residing at 0000 Xxxxxxxx Xxxxx Xxxx, Xxxx Xxxxxx, Xxxxxxxx 00000
("Consultant").
R E C I T A L S:
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A. Consultant has particular knowledge and experience in the sale and
marketing of telecommunication and wireless internet products and services and
is in the business of providing research and development assistance in the
creation of strategic sales and marketing plans for such products and services.
B. Company is currently developing a portable wireless internet-capable
device (the "Dragonfly") which should have complete working prototype models
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available sometime after the date of this Agreement and is engaged in the
provision of various related and incidental technical and business services.
C. Company desires to develop a sales and marketing plan for the
Dragonfly and strategy for introducing the Dragonfly into the marketplace and
wishes to engage Consultant for such purposes in accordance with this Agreement.
T E R M S:
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NOW THEREFORE, for and in consideration of the mutual premises and
covenants contained herein, and other good and valuable consideration, the
receipt, sufficiency and adequacy of which is hereby acknowledged, the parties
agree as follows:
1. Recitals. The foregoing recitals are true and correct and are hereby
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incorporated by reference into the substance of this Agreement.
2. Engagement of Consultant. Subject to the terms and conditions hereof,
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Company hereby engages Consultant, and Consultant hereby accepts such
engagement, to, prior to the Delivery Deadline (hereinafter defined) (i)
research the overall consumer sales and distribution markets (wholesale, retail,
OEM and otherwise) for the Dragonfly, (ii) prepare a report (the "Marketing
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Plan") of its research results and a strategic plan for introducing and
distributing the Dragonfly into and throughout appropriate markets and market
segments in accordance with the "Proposed Outline" attached hereto as Exhibit A
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and (iii) deliver to Company the Marketing Plan and all working papers, research
materials and raw data discovered or created by Consultant in connection with
its preparation of the Marketing Plan (the "Deliverables").
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3. Term; Consideration; Default.
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A. The term of this Agreement shall commence on the Effective Date and
shall expire at 5:00 p.m., Miami, Florida time, on the sixtieth (60th) day
thereafter (the "Delivery Deadline").
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B. As compensation for Consultant's services hereunder, Consultant
shall be entitled to receive, upon its delivery of the Deliverables, an amount
equal to $150.00 per hour times the number of hours Consultant actually spent
researching for, or working on, the Marketing Plan, up to a maximum amount of
$17,250.00 (155 hours) (the "Consideration"). The Consideration may be paid by
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Company, in the Company's sole discretion, either in cash or by the issuance of
common stock of the Company registered with the Securities and Exchange
Commission on Form S-8. Consultant shall deliver, along with the Deliverables,
an invoice or written certification of the number of hours it actually spent
researching for, or working on, the Marketing Plan.
C. In the event Consultant shall default in its performance of its
obligations hereunder or otherwise breaches the terms of this Agreement, Company
may immediately terminate this Agreement and shall not be obligated to accept
any of the results of Consultant's efforts hereunder, nor compensate Consultant
therefor; provided, however, if Company requests some or all of Consultant's
results, Consultant shall immediately deliver to Company any such information
requested. If Company requests and accepts some or all of the results of
Consultant's efforts, Company shall be obligated to pay Consultant a fair and
reasonable amount therefor.
4. Non-Exclusive License.
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A. Provided Consultant complies with the terms and conditions of this
Agreement, Company hereby grants to Consultant, during the term of this
Agreement, a non-exclusive license to use, to the extent necessary to perform
Consultants obligations hereunder, present and future trademarks, trade names,
service marks, brand names, logos and slogans, provided such usage conforms with
Company's guidelines.
B. No license granted herein shall be assignable or transferable.
5. Proprietary Information and Disclosure. Consultant acknowledges that in
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the course of performing under this Agreement it may obtain Company information
which is of a confidential and proprietary nature ("Proprietary Information").
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Such Proprietary Information may include, but is not limited to, business
information such as marketing strategies and principles, trade secrets, existing
and potential customers, and, sales and marketing plans. Consultant, its
employees, agents, and representatives shall, during the term of this Agreement
and after its termination, keep in trust and confidence all such Proprietary
Information, and shall not use such Proprietary Information other than in the
course of Consultant's performance under this agreement, and shall diligently
protect any and all Proprietary Information of Company from unauthorized
disclosure.
6. Relationship of the Parties. Consultant is and will hold itself out to
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be an independent contractor and not an agent, partner or employee of Company.
Consultant is not authorized to make any promise, warranty or representation on
Company's behalf with respect to any of Company's products or services or any
other matter, except as expressly authorized by Company.
7. Notice. All notices must be in writing and sent to the appropriate
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address listed above or to such other address as either party may request in
accordance with this Section 7, by certified mail, return receipt requested, or
by reputable overnight courier service. Notice shall be deemed given as of the
date of deposit with the United States Postal Service (in the case of certified
mail) or the reputable overnight courier.
8. Miscellaneous.
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A. Each of the parties shall hereafter execute all documents and do all
acts reasonably necessary to effect the provisions of this Agreement.
B. The provisions of this Agreement shall be deemed to obligate, extend
to and inure to the benefit of the successors, assigns, transferees, grantees,
and indemnities of each of the parties to this Agreement.
C. This Agreement and the interpretation and enforcement of the terms
of this Agreement shall be governed under and subject to the laws of the State
of Florida. Venue for any action taken hereunder shall be Dade County, Florida.
D. This Agreement, after full execution, acknowledgment and delivery,
memorializes and constitutes the entire agreement and understanding between the
parties and supersedes and replaces all prior negotiations and agreements of the
parties, whether written or unwritten. Each of the parties to this Agreement
acknowledges that no other party, nor any agent or attorney of any other party
has made any promises, representations, or warranty whatsoever, express or
implied, which is not expressly contained in this Agreement; and each party
further acknowledges that he or it has not executed this Agreement in reliance
upon any belief as to any fact not expressly recited hereinabove.
E. In the event of a dispute between the parties concerning the
enforcement or interpretation of this Agreement, the prevailing party in such
dispute, whether by legal proceedings or otherwise, shall be reimbursed
immediately for the reasonably incurred attorneys' fees and other costs and
expenses by the other parties to the dispute.
F. Wherever the context so requires, the singular number shall include
the plural and the plural shall include the singular.
G. The captions by which the sections and subsections of this Agreement
are identified are for convenience only, and shall have no effect whatsoever
upon its interpretation.
H. If any provision of this Agreement is held to be illegal or invalid
by a court of competent jurisdiction, such provision shall be deemed to be
severed and deleted and neither such provision, nor its severance and deletion,
shall affect the validity of the remaining provisions.
I. This Agreement may be executed in any number of counterparts, each
of which shall be deemed an original and, when taken together shall constitute
one and the same instrument.
J. Except as permitted under this Section 8, each of the parties hereto
agrees to bear its own costs, attorney's fees and related expenses associated
with this Agreement.
K. Any dispute or claim arising to or in any way related to this
Agreement shall be settled by arbitration in Miami, Florida. All arbitration
shall be conducted in accordance with the rules and regulations of the American
Arbitration Association ("AAA"). AAA shall designate a panel of three
arbitrators from an approved list of arbitrators following both parties' review
and deletion of those arbitrators on the approved list having a conflict of
interest with either party. Each party shall pay its own expenses associated
with such arbitration (except as set forth in this Section 8). A demand for
arbitration shall be made within a reasonable time after the claim, dispute or
other matter has arisen and in no event shall such demand be made after the date
when institution of legal or equitable proceedings based on such claim, dispute
or other matter in question would be barred by the applicable statutes of
limitations. The decision of the arbitrators shall be rendered within sixty
(60) days of submission of any claim or dispute, shall be in writing and mailed
to all the parties included in the arbitration. The decision of the arbitrator
shall be binding upon the parties and judgement in accordance with that decision
may be entered in any court having jurisdiction thereof.
L. Neither Company, nor Consultant, shall have the right to assign or
delegate this Agreement or any rights or obligations created hereby unless the
non-assigning party expressly approves the assignment in writing.
M. A responsible officer of each party has read and understands the
contents of this Agreement and is empowered and duly authorized on behalf of
that party to execute it.
[SIGNATURES ON THE FOLLOWING PAGE]
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date set
forth above.
COMPANY:
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E-XXX, INC., a Nevada corporation
/s/ Xxxx X. Xxxxxx
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By: Xxxx X. Xxxxxx, President
CONSULTANT:
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/s/ Xxxx Xxxxxxxx
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Xxxx Xxxxxxxx
EXHIBIT A
Proposed Outline for Marketing & Product Introduction Plan
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[Please see attached.]
