CONSULTANCY AGREEMENT
THIS
AGREEMENT
effective as of May 16, 2006 (the "Effective Date"), between:
INYX,
INC.,
a body
corporate duly registered and authorized to carry on business in the State
of
Nevada with its corporate office located at 000 Xxxxx Xxxxxx, 00xx
Xxxxx,
Xxx Xxxx, XX, 00000 (hereinafter referred to as “INYX”)
OF
THE FIRST PART
-and-
ZIRCON
CONSULTANTS LLC, an
individual member limited liability company incorporated in the state of
Florida, and carrying on business at 0000 Xxxxxxx Xxxxxx, Xxxxxxxxx Xxxx 0,
in
the City of Surfside in the State of Florida (hereinafter referred to as
“ZIRCON
CONSULTING”)
OF
THE SECOND PART
WHEREAS
INYX
desires to retain the Services of ZIRCON CONSULTING;
AND
WHEREAS
INYX and
ZIRCON CONSULTING wish to enter into an agreement respecting the terms and
conditions, and performance of certain consulting and commercial and project
management services by ZIRCON CONSULTING on behalf of INYX.
NOW
THEREFORE
this
Agreement witnesses that, in consideration of these premises and of the terms,
conditions and agreements herein contained, the Parties do hereby agree as
follows:
ARTICLE
1 - DEFINITIONS
In
this
Agreement, the following words shall have the meanings set out
below:
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1.
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“Agreement”
means this agreement and all amendments thereto made in writing by
the
Parties, and expressions “herein”, “hereof”, and “hereto”, “above”,
“below” and similar expressions used in any paragraph, subparagraph,
section or article of this agreement refer and relate to the whole
of this
agreement and not to that paragraph, subparagraph, section or article
only, unless otherwise expressly
provided.
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2.
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“Confidential
Information”
shall mean all information, whether written or oral, which is or
has been
disclosed by INYX to ZIRCON CONSULTING in relation to ZIRCON CONSULTING’s
Services under this Agreement only and shall not include: (i) information
which is publicly disclosed by INYX; (ii) information which is obtained
by
ZIRCON CONSULTING from a third party that (a) ZIRCON CONSULTING does
not
know to have violated, or to have obtained such information in violation
of, any obligation to INYX with respect to such information, and
(b) does
not require ZIRCON CONSULTING to refrain from disclosing such information;
and (iii) information which is required to be disclosed by ZIRCON
CONSULTING under compulsion of law (whether by oral question,
interrogatory, subpoena, civil investigative demand or otherwise)
or by
order of any court or governmental or regulatory body provided that,
in such circumstance, ZIRCON CONSULTING shall give INYX prior written
notice of such disclosure and cooperate with INYX to minimize the
scope of
any such disclosure.
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1
3. "Effective
Date"
has the
meaning ascribed thereto in the first line hereof.
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4.
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“For
Cause”
means any one of the following: (i) a breach or failure to observe
any
provisions herein; (ii) any act of gross negligence relating to the
performance of the Services or the performance of the assigned
responsibilities; (iii) the commission of an indictable offense by
ZIRCON
CONSULTING, which significantly impairs ZIRCON CONSULTING’s ability to
deliver the Services and responsibilities hereunder or which materially
or
adversely affects the reputation of INYX, as determined in the sole
discretion of the INYX; (iv) failure to comply with reasonable
instructions, orders and directions of
INYX.
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5.
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“INYX”
shall include any affiliate of such Party.
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6.
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“Parties”
means INYX and ZIRCON CONSULTING, and Party means either one of them
as
the context requires
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7.
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“Services”
means the services to be provided by ZIRCON CONSULTING to INYX pursuant
to
Article 3.
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8.
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“Term”
means the time period commencing on the Effective Date and ending
on the
effective date of the termination of this
Agreement.
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9.
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“Territory”
means
identified pharmaceutical market areas that may be designated by
the
Parties from time to time. The Parties have identified Eastern Europe
as
an initial Territory.
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10.
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“ZIRCON
CONSULTING”
shall include any shareholder, director, officer or employee of such
Party.
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ARTICLE
2 - LEGAL RELATIONSHIP BETWEEN PARTIES
The
Parties agree and acknowledge that ZIRCON CONSULTING is an independent
contractor and through this Agreement is representing INYX on a project by
project basis. Unless given authority, in writing by duly authorized
representatives of INYX, ZIRCON CONSULTING has no authority to enter into any
contract, assume any obligations or to give any warranties or representations
on
behalf of INYX. ZIRCON CONSULTING warrants that it shall at no time represent
to
third parties that ZIRCON CONSULTING or any of its employees, affiliates, or
assigns has authority to enter into contracts, assume obligations or give
warranties or representations on behalf of INYX, unless specifically authorized
to do so, in writing, by duly authorized representatives of INYX.
ARTICLE
3 - DUTIES AND RESPONSIBILITIES OF CONSULTANT -
SERVICES
During
the Term of this Agreement:
ZIRCON
CONSULTING shall provide general consulting services to INYX as may be directed
by INYX from time to time.
ZIRCON
CONSULTING shall provide INYX with general and commercial advisory services
regarding the business environment in the designated Territory including any
translation services that may be required by Inyx from time to
time.
2
ZIRCON
CONSULTING shall use its best commercial efforts to introduce INYX and its
representatives and agents to required or requested industry contacts in target
market areas within the specified Territory.
ZIRCON
CONSULTING shall ensure that it maintains and supports any such established
relationships in the Territory including keeping INYX informed about any change
in the status of such relationships.
ZIRCON
CONSULTING shall provide communication and infrastructure support to INYX,
its
agents and representatives in the target Territory.
ZIRCON
CONSULTING shall provide assistance in the identification, coordination and
procurement of necessary capital equipment and support services in the
identified Territory, as may be requested by INYX from time to
time.
ZIRCON
CONSULTING shall provide any necessary project management and project
supervisory services as may be requested by INYX from time to time. If such
project management services fall outside the scope of ZIRCON CONSULTING’s
expertise, ZIRCON CONSULTING shall promptly notify INYX of such, and at INYX’s
request and cost, identify and retain the necessary expertise that INYX may
require to carry out such services.
ARTICLE
4 - TERM OF ENGAGEMENT
INYX
hereby engages and retains ZIRCON CONSULTING to provide the Services as
described in Article 3 during the TERM commencing on the Effective Date through
May 15, 2007 unless this Agreement is extended by INYX for an additional
one-year period and agreed to by ZIRCON CONSULTING, in writing.
Such
extension shall be submitted to ZIRCON CONSULTING by notice in writing to the
notice address noted in this Agreement thirty days before expiration of this
Agreement. ZIRCON CONSULTING shall accept the extension, within 10 days after
such notice, by returning one executed copy of the renewal notice to the INYX's
offices at the notice address noted herein.
INYX
shall be able to terminate this Agreement For Cause upon providing ZIRCON
CONSULTING five (5) days written notice at any time.
ARTICLE
5 - COMPENSATION
During
the Term of this Agreement, ZIRCON CONSULTING shall invoice INYX for its
consulting fees on a retainer basis, with such fees being determined and
reconciled between the Parties from time to time, and on a project by project
basis. Such invoices shall also include disbursements that ZIRCON CONSULTING
may
need to make from time to time on INYX’s behalf and shall include any reasonable
costs, third-party deposits and payments, expenses and fees that ZIRCON
CONSULTING may incur in carrying out the Services.
In
addition to any project retainers agreed to between the Parties, INYX shall
pay
any additional invoiced fees to ZIRCON CONSULTING within fifteen days following
receipt of such invoice. INYX shall also provide ZIRCON CONSULTING with a travel
allowance not to exceed Two Thousand Dollars ($2,000.00) per month.
ZIRCON
CONSULTING shall be responsible for the payment of all taxes related to its
compensation, at its own cost.
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Within
thirty (30) days after receiving a written demand from INYX, ZIRCON CONSULTING
shall promptly refund to INYX any monies advanced by INYX to ZIRCON CONSULTING,
less any fees, expenses and costs owed to ZIRCON CONSULTING, and that have
been
previously approved by INYX.
ARTICLE
6 - CONFIDENTIALITY
In
the
course of its Services under this Agreement, ZIRCON CONSULTING shall only have
access to information relating to the projects that ZIRCON CONSULTING is
providing its Services for and not to information that INYX may determine,
at
its sole discretion, is material nonpublic information and which it must
withhold from ZIRCON CONSULTING.
ZIRCON
CONSULTING shall promptly notify INYX if it receives any such material nonpublic
information and that all such material nonpublic information shall be then
be
treated as Confidential Information in all respects by ZIRCON CONSULTING.
ZIRCON
CONSULTING’s obligation under this section shall continue after the
date
of expiration, termination or completion of this Agreement for a period of
two
years.
ARTICLE
7 - GENERAL
Preamble
Incorporation
The
Parties hereby confirm and ratify the matters contained and referred to in
the
preamble to this Agreement and agree that same are expressly incorporated into
and form part of this Agreement.
Indemnity
ZIRCON
CONSULTING is and shall be liable for and does hereby indemnify and save
harmless INYX of, from, against any and all liabilities, losses, costs, damages,
solicitors' fees and disbursements (on a solicitor-and-his-own-client basis
with
a right to full indemnity), claims, causes of action, actions, obligations,
suits, proceedings, fines, penalties and expenses of whatever kind or nature
(including direct losses, costs, fees, disbursements, damages and expenses
of
INYX), which INYX may suffer, sustain, incur, pay or be liable for, arising
out
of, relating to, in consequence of or in any way connected to ZIRCON CONSULTING
performing and discharging the Services for INYX.
Survival
The
Parties hereto acknowledge that the provisions of this Agreement which by their
nature are meant to survive the expiration or termination hereof for the benefit
of either Party hereto shall survive and shall not be merged therein or
therewith.
Unenforceable
Terms
If
any
term, covenant or condition of this Agreement or the application thereof to
any
Party or circumstance shall be invalid or unenforceable to any extent, the
remainder of this Agreement shall not be affected thereby and each remaining
term, covenant or condition of this Agreement shall be valid and shall be
enforceable to the fullest extent permitted by law.
Entire
Agreement
This
Agreement constitutes the entire Agreement between the Parties hereto relating
to the subject matter hereof and supersedes all prior and contemporaneous
agreements, understandings, negotiations and discussions, whether oral or
written, of the Parties relating thereto and there are no general or specific
warranties, representations or other agreements by or among the Parties in
connection with the entering into of this Agreement or the subject matter hereof
except as specifically set forth herein.
4
Further
Assurances
The
Parties hereto and each of them, do hereby covenant and agree to do such things
and execute such further documents, agreements and assurances as may be
necessary or advisable from time to time, in order to carry out the terms and
conditions of this Agreement in accordance with their true intent.
Amendments
This
Agreement may be altered or amended in any of its provisions when any such
changes are reduced in writing and signed by the Parties hereto, but not
otherwise.
No
Waiver
No
consent or waiver, express or implied, by either Party to or of any breach
or
default by the other Party in the performance by the other Party of its
obligations hereunder shall be deemed or construed to be a consent or waiver
to
or of any other breach or default in the performance of obligations hereunder
by
such Party hereunder. Failure on the part of either Party to complain of any
act
or failure to act of the other Party or to declare the other Party in default,
irrespective of how long such failure continues, shall not constitute a waiver
by such Party of its rights hereunder.
Legal
Fees
In
the
event of any action, suit, arbitration or any other proceeding in any way
related to this Agreement brought by either Party hereto against the other,
the
prevailing Party shall be entitled to recover from the other, reasonable legal
fees (on a solicitor-and-his-own-client basis) in connection therewith in
addition to the cost of that action, suit, arbitration or other
proceeding.
Notices
Any
notice required or permitted to be given hereunder by any Party shall be in
writing and shall be deemed to have been well and sufficiently given
if:
· personally
delivered to the Party to whom it is intended or if such Party is a corporation,
to a director, officer or registered office of that corporation;
· if
mailed
by prepaid registered mail or delivered, to the address of the Party to whom
it
is intended as hereinafter set forth or to such other address as a Party may
from time to time give notice in writing;
· if
transmitted by facsimile transmission to the facsimile number of the Party
to
whom it is intended as hereinafter set forth.
ZIRCON
CONSULTANTS, LLC
PH
8,
0000 Xxxxxxx Xxxxxx
Xxxxxxxx,
Xxxxxxx, XXX
00000
c/o
INYX
CANADA, INC.
Xxxxx
000, 0000 Xxxxx Xxxxxx
Xxxxx
Xxxx, Xxxxxxx, Xxxxxx
X0X
0X0
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Any
notice delivered, or transmitted by facsimile, as aforesaid shall be deemed
to
have been received on the date of delivery or transmission [and any notice
mailed shall be deemed to have been received seventy-two (72) hours after the
date is postmarked]. If normal facsimile service [or mail] is interrupted by
strike, slow-down, force majeure or other cause after the notice has been sent,
the notice sent by such impaired means of communication will not be deemed
to be
received until actually received. In the event any of such means of
communication is impaired at the time of sending the notice, the Party sending
the notice shall utilize any other means which has not been so impaired or
shall
deliver the notice in order to ensure prompt receipt thereof.
Headings
The
headings in this Agreement have been inserted for reference and as a matter
of
convenience only and in no way define, limit or enlarge the scope or meaning
of
this Agreement or any provisions hereof.
Governing
Law and Submission to Jurisdiction
This
Agreement shall be governed by and construed in accordance with the laws of
the
State of Florida, and the Parties hereto hereby submit to the jurisdiction
of
the Courts in the State of Florida.
Counterparts
This
Agreement may be executed in several counterparts each of which when so executed
shall be deemed to be an original, and such counterparts shall constitute one
and the same instrument and notwithstanding their date of execution shall be
deemed to bear date as of the date of this Agreement.
Enurement
This
Agreement shall enure to the benefit of and be binding upon the Parties hereto
and their respective heirs, executors, administrators, successors and assigns.
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SIGNATURE
PAGE
IN
WITNESS WHEREOF the corporate Parties have hereunto affixed their corporate
seals duly attested to by the hands of their properly authorized officers in
that behalf and the individual Parties have executed this Agreement all on
the
day and year first above written.
PER:
/s/ Xxxx Xxxxxxxxx PER:
/s/ Rustam
Saidazimov
Inyx
Inc.
Zircon
Consulting
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