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CONSULTING AGREEMENT
THIS AGREEMENT made effective this 18th day of August 2003, by and between
Xxxxxxx Xxxxx ("Consultant") and NeWave, Inc. (F.K.A Utah Clay Technology)
("Client") (collectively, the "Parties" and separately, the "Party").
WITNESSETH:
WHEREAS, Client is an alternative distribution network providing wholesale
products along with a full suite of business solutions; and
WHEREAS, Consultant has experience providing certain advisory services to
companies; and
WHEREAS, Client and Consultant wish to enter into a relationship whereby
Consultant will provide certain services to Client on the terms and conditions
hereinafter set forth.
NOW THEREFORE, in consideration of, and for the mutual promises and covenants
contained herein, and for good and valuable consideration, the receipt of which
is hereby acknowledged, the parties agree as follows:
1. STATEMENT OF SERVICES-SCOPE OF WORK
Client agrees to engage Consultant to perform the services and undertake the
duties and responsibilities as set forth below and incorporated herein (the
"Services") and Consultant agrees to render the Services under the terms and
conditions set forth in this Agreement. Consultant shall perform the Services
without a fixed schedule or a commitment of a minimum number of hours provided;
however, Consultant will provide a reasonable number of hours to perform the
Services.
2. NO EMPLOYMENT
Consultant will be engaged solely as a consultant and not as an employee. The
relationship between Consultant and Client shall at all times be a
contractor/principal relationship, and Consultant shall not be deemed to be an
employee of Client.
3. COMPENSATION AND PAYMENT
Client shall pay Consultant $10,000 per month. 4. TERM OF AGREEMENT
The term of this Agreement (the "Term") shall commence as of the date of this
Agreement and shall remain in full force and effect for eight months unless
terminated pursuant to Section 5.
5. TERMINATION OF AGREEMENT
Either Party may terminate this Agreement due to a material breach by the other
party and failure by that party to cure within 30 days of written notice of said
breach (the "Notice of Termination"). Upon receiving Notice of Termination from
Client, Consultant shall discontinue performance of the Services on the date
specified in the Notice of Termination (the "Termination Date").
6. CONFIDENTIALITY OF INFORMATION
Consultant acknowledges that he has executed the Confidentiality Agreement
attached hereto. The Parties further agree that Client retains sole and
exclusive right, title and ownership of any and all proprietary technology and
any new products, improvements, enhancements or the like that result from
Consultants services (the "Developments") and that Consultant shall not have any
right to or claim for any interest in the technology and/or the Developments.
7. RESPONSIBILITY OF THE CLIENT
Client shall:
(a) Provide reasonable assistance to Consultant by making available to
Consultant pertinent information relating to the Services.
(b) Provide prompt written notice to Consultant whenever Client becomes aware of
any development that affects the scope or timing of the Services.
(c) Pay Consultant for the Services in a timely manner.
8. RESPONSIBILITIES OF THE CONSULTANT
Consultant shall:
(a) Use best efforts to perform the Services in a professional and xxxxxxx like
manner consistent with the professional standards of the industry.
(b) Inform and update Client regarding matters pertinent to the performance of
the Services.
(c) Although Consultant may perform services for other customers/clients,
Consultant has agreed that shall devote such time as is reasonable and necessary
to complete the Services in a timely manner consistent with the time frame
established by Client.
9. COMPLIANCE WITH LAW
Consultant agrees to comply with all applicable local, state and federal laws,
regulations and orders relating to the Services, including but not limited to,
fair and equal opportunity practices and policies.
10. NOTICES
Any notice to be given under and pursuant to the terms of this Agreement shall
be in writing and shall be made by personal delivery, by a nationally recognized
overnight carrier or by registered or certified mail, postage prepaid, return
receipt requested and such notice shall be deemed given upon receipt if
delivered personally or by overnight carrier, or forty-eight (48) hours after
deposit in the United States mails as set forth herein. Any notice to the
parties shall be sent to the following addresses or to such other address, as
either party to this Agreement shall specify by notice to the other:
11. GOVERNING LAW
The laws of the State of California shall govern this Agreement.
12. BINDING ARBITRATION
Any controversy or claim arising out of or relating to this Agreement, or any
alleged breach thereof, will be settled by binding arbitration in accordance
with the Commercial Rules of the American Arbitration Association. Such action
shall be brought in Orange County, California and judgment upon the award
rendered by the Arbitrator(s) may be entered in any court having jurisdiction
thereof. The prevailing party in such action shall be entitled to recover
reasonable attorney's fees.
13. ENTIRE AGREEMENT
This Agreement constitutes the entire agreement between the Parties and the
terms and conditions may be waived, modified or amended only by written
agreement signed by both Parties.
14. WAIVER
No covenant, term or condition of this Agreement or breach thereof shall be
deemed waived unless the waiver is in writing and signed by the party against
whom enforcement is sought. Any waiver shall not be deemed to be a waiver of any
proceeding or succeeding breach of the same or any other covenant, term or
condition.
15. MUTUAL REPRESENTATION AND WARRANTIES
Each Party represents to the other that:
(a) They are not restricted or prohibited, contractually or otherwise, from
entering into and performing each of the terms and conditions of this Agreement.
(b) The person executing this Agreement on behalf of the respective party has
the requisite power and authority to execute this Agreement and to cause the
respective party to be legally bound.
(c) No suits, actions or proceedings are threatened or pending that will
adversely affect its ability to perform its obligations under this Agreement.
16. ASSIGNMENT
This Agreement and the rights hereunder may not be assigned by either Party
without the prior written consent of the other and shall be binding upon and
enure to the benefit of the Parties, their respective successors and assigns.
17. SEVERABILITY
The provisions of this Agreement are meant to be enforced severally so that the
determination that one or more provisions are enforceable or invalid shall not
affect or render invalid any other provisions of this Agreement and such
provisions shall continue to be in full force in accordance with their terms.
18. COUNTERPARTS
This Agreement may be executed simultaneously in any number of counterparts,
each of which shall be deemed to be an original and such counterparts shall
constitute but one and the same instrument.
IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed
effective as of the date set forth above.
CONSULTANT: CLIENT:
Xxxxxxx Xxxxx NeWave, Inc.
/s/ Xxxxxxx Xxxxx By: /s/ Xxxxxxx Xxxx
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Xxxxxxx Xxxxx Xxxxxxx Xxxx
Chief Executive Officer
