EXHIBIT 10.21
IPVoice COMMUNICATIONS, INC.
Consulting and Agent Agreement
THIS CONSULTING AGREEMENT (the "Agreement") is made this 17th day of July
1998, by and between IPVoice COMMUNICATIONS, INC., a Nevada corporation with
offices at 0000 Xxxxxxxxx Xxxxx, Xxxxxx Xxxx, Xxxxxxxx 00000 ("Client") and
CALPE, LTD., residing at 4560 Podoleo St., Baintown, Nassau, Bahamas
("Consultant").
RECITALS
I. Consultant, and its network of professionals, is experienced in providing
assistance with international sales, service and public relations;
II. Client has become a publicly traded corporation;
III. Client wishes to engage the services of Consultant and its network of
professionals to include Client within the select and limited group of clients
for which Consultant and the professionals provide various consulting services
as described above.
IV. Consultant agrees to be retained for the foregoing purposes for which
Consultant has the requisite skills, abilities and qualifications, subject to
the terms and conditions provided herein.
AGREEMENT
NOW THEREFORE, in consideration of the mutual promises, covenants and
agreements contained herein, and for other good and valuable consideration, the
receipt and sufficiency of which are expressly acknowledged, Client and
Consultant agree as follows:
A. Recitals
The foregoing recitals are true and correct and are incorporated herein
by this reference.
B. Engagement of Consultant
Client hereby appoints Consultant and Consultant's professionals
(Consultant's Professionals") to be its counsel/agent for the
aforementioned service and hereby retains and employs Consultant,
pursuant to the terms and conditions of the Agreement. Consultant
accepts such appointment and agrees to perform the services pursuant to
the terms and conditions of the Agreement.
C. Terms of Agreement
This Agreement shall have an initial term of three years (the "Initial
Term") commencing July 1, 1998 and shall not extend beyond the Initial
Term unless the parties enter into a separate
and independent written agreement. The parties agree not to terminate
this Agreement pursuant to this section unreasonably or in bad faith.
D. Duties of the Consultant
Client retains Consultant to assist Client with Client's international
sales, service, public relations and possible acquisitions by providing
the services of Consultants and other professionals. Specifically,
Consultant agrees to provide the following services:
1. Acting as an Agent for client with respect to
international sales, service and public relations
and/or acquisitions.
2. Assist Client to make Client and Client's
management, products and activities known to
appropriate international markets and customers, and
to seek out new business acquisitions, which are
consistent with Client's strategic growth plan.
3. Consultant will represent and assist the client in
its dealings with its existing contacts in ; Greece,
Cyprus, Turkey; South America, Franch and the
Caribbean.
The entirety of the services to be provided by Consultant pursuant to
this Sub-Section E-1.
E. Duties of the Client
1. On a regular and timely basis, Client shall provide
Consultant and Consultant's designees with all approved data
and pertinent information about Client and Client's
management, products and operations. Client shall advise
Consultant of any facts which would affect the accuracy of any
prior data or information provided Consultant or Consultant's
Professionals by Client.
2. Client shall use its best efforts to promptly provide
Consultant and Consultant's Professionals with full and
complete copies of all product and marketing literature and
details; and copies of all product/service brochures, sales
materials, etc.
F. Representation and Indemnification
1. Client shall be deemed to make a continuing representation
of the accuracy of any and all material facts, information and
data which Client supplies to Consultant or Consultant's
Professionals, and Client acknowledges its awareness that
Consultant and Consultant's Professional will rely on such
continuing representation in disseminating such information
and otherwise performing its technical functions.
2. Consultant, in the absence of written notice from Client,
may rely upon the continuing occurrence of material
information and data supplied by Client.
3. Client hereby agrees to indemnify Consultant against, and
to hold Consultant harmless from any claims, demands, suits,
loss, damages, including legal fees and expenses arising from
Consultant's reliance upon the occurrence and continuing
accuracy of such facts, material, information and data, if and
only if, the facts, materials, information and data was
provided to Consultant by Client.
G. Compensation
For services rendered, Client shall pay Consultant and/or Consultant's
designee(s) EightHundred Fifty Thousand (850,000) shares of IPVoice
Common Stock at a xxxxx xxxxx of $0.10 per share. Consultant
understands and agrees that ^($62,700.00 /s/ BW) US dollars will be
deducted from commissions due the Consultant/Agent for customers who
are sold IPVoice services by the Consultant/Agent for customers who
are sold IPVoice services by the Consultant/Agent or Consultant's
designee(s). The commissions will be paid to the Consultant out of
monthly revenues generated by sales of IPVoice products and services
as well as signed distributors in Consultant's/Agent's base.
Consultant further agrees that 23,000 shares will be given/issued to
Xxxx Xxxx, Corporate Imaging, and an additional 200,000 shares with
IPVoice to do public relations promotions. This will leave Calpe
627,000 shares of IPVoice Common Stock. Client and Consultant/Agent
agree that a percentage of revenue will be deducted from Consultant's
commissions by the client for all sales made after the Consultant base
of accounts is billing in excess of $250,000 US dollars per month in
revenues. This percentage will be determined at the time of sale.
If Client should request Consultant to perform other services not
included in the Services listed in Section D herein, Client shall
compensate Consultant or Consultant's designee(s) as may be agreed to
by the parties in connection with those specific services.
H. Best Efforts Basis
The parties agree that they individually and separately shall at all
times faithfully and to the best of their experience, ability, and
talents, perform all the duties that may be required of and from each
other pursuant to the terms of this Agreement. Consultant does not
guarantee or warrant that its efforts shall have any impact on Client's
business or that any subsequent financial improvement shall have any
impact on Client's business or that any subsequent financial
improvement shall result from Consultant's efforts.
I. Client's Right to Approve Consultant's Actions
Client expressly retains the right to approve, in its sole discretion,
the sales and marketing services provided by Consultant that involves
Client, including with limitation, all sales activities and marketing
materials. Consultant and Client mutually agree that Consultant is not
authorized to enter into agreements on behalf of Client. Client agrees
not to withhold its approval pursuant to this section unreasonably.
J. Costs and Expenses
Consultant shall be responsible for paying all daily and ordinary
expenses incurred during and in relation to Consultant's performance
under this Agreement including, but not limited to, ordinary phone,
fax, delivery, and copying expenses. Client agrees to pay for all
extraordinary expenses, if any, incurred by Consultant in relation to
Consultant's performance under this Agreement, including without
limitation, long distance travel expenses for any trips exceeding fifty
(50) miles taken on behalf of Client, and printing costs; provided that
Consultant must obtain Client's written approval of all such costs and
expenditures prior to incurring them.
K. Consultant is an limited Agent
Consultant obligations under this Agreement consist solely of the
Consulting Services described herein. In no event shall Consultant be
considered to act as a legal agent of Client or otherwise represent or
bind Client. For the purposes of this Agreement, Consultant is an
independent contractor. All final decisions with respect to acts of
Client or its affiliate, whether or not made pursuant to or in reliance
on information or advice furnished by Consultant hereunder, shall be
those of Client or such affiliated and Consultant shall under no
circumstances be liable for any expense incurred or loss suffered by
Client as a consequence of such action or decisions.
L. Non-Exclusive Services
Client acknowledges that Consultant is currently providing services of
the same or similar nature to other parties and Client agrees that
Consultant is not prevented or barred from rendering services of the
same nature or a similar nature to any other individual or entity.
Consultant understands and agrees that Client shall not be prevented or
barred from retaining other persons or entities to provide services of
the same or similar nature as those provided by Consultant. Consultant
shall advise Client of Consultant's positions with respect to any
activity, employment, business arrangement or potential conflict of
interest which may be relevant to this Agreement.
M. Non-Circumvention of Consultant
Client agrees, represents and warrants hereby that it will not
circumvent Consultant with respect to any prospective customer
introduced by Consultant to Client nor with respect to any transaction,
merger, acquisition, or other business opportunity proposed by,
assisted with or otherwise promoted by Consultant for the benefit of
Client pursuant to the terms of this Agreement.
N. Miscellaneous
1. Authority. The execution and performance of this Agreement
has been duly authorized by all requisite corporate action. This
Agreement is a valid and binding obligation of the parties hereto.
2. Amendment. This Agreement may be amended or modified at any
time and in any manner only by an instrument in writing executed by the
parties hereto.
3. Waiver. All the rights and remedies of either party under
this Agreement are cumulative and not exclusive of any other rights and
remedies provided by law. No delay or failure on the part of either
party in the exercise of any right or remedy arising from a breach of
this Agreement shall operate as a waiver of any subsequent right or
remedy arising from a subsequent breach of this Agreement. The consent
of any party, where required hereunder, to any act or occurrence shall
not be deemed to be a consent to any other act or occurrence.
4. Assignment. Neither this Agreement nor any right created by
it shall be assignable by either party without the prior written
consent of the other. Nothing in this Agreement, expressed or implied,
is intended to confer upon any person, other than the parties and their
successors, any rights or remedies under this Agreement.
5. Notices. Any notice or other communication required or
permitted by this Agreement must be in writing and shall be deemed to
be properly given when delivered in person to an officer of the other
party, when deposited in the mails for transmittal by certified or
registered mail, postage prepaid, when deposited with a courier such as
Federal Express or the like, or when sent by facsimile transmission
with a confirming copy by first class mail, provided that such
communication is addressed:
In the case of Client:
Xxxxxxx Will, President
IPVoice Communications, Inc.
0000 Xxxxxxxxx Xxxxx
Xxxxxx Xxxx, Xxxxxxxx 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
In the Case of Consultant
Xxxxxx X. Xxxxxx
Calpe, Ltd.
0000 Xxxxxxx Xx.
Xxxxxxxx, Xxxxxx, Xxxxxxx
Telephone: (000) 000 0000
Fax: (000) 000 0000
Or to such other person or address designated by the parties hereto to
receive notice. Any such notice shall be deemed received the earlier of
actual receipt or five (5) business days following deposit of the same.
6. Headings and Captions. The headings of paragraphs are included
solely for convenience. If a conflict exists between any heading and
the text of this Agreement, the text shall control.
7. Entire Agreement. This instrument and the exhibits hereto contain
the entire Agreement between the parties with respect to the
transaction contemplated by the Agreement and no other prior written or
oral statement or agreement shall be recognized or enforced. This
agreement may be executed in any number of counterparts but the
aggregate of the counterparts together constitute only one and the same
instrument.
8. Effect of Partial Invalidity. In the event that any one or more of
the provisions contained in this Agreement shall for any reason be held
to be invalid, illegal, or unenforceable in any respect, such
invalidity, illegality of unenforceability shall not affect any other
provisions of this Agreement, but this Agreement shall be construed as
if it never contained any such invalid, illegal or unenforceable
provisions.
9. Governing Law. This Agreement shall be governed and construed in
accordance with the laws of the State of Colorado, and each party
submits to the jurisdiction of any state or federal court in the State
of Colorado, U.S.A.
If any action at law or in equity, including an action for declaratory
relief, is brought to enforce or interpret the provisions of this
Agreement, the prevailing party shall be entitled to recover actual
attorney fees from the other party. The attorney fees may be ordered by
the court in the trial of any action described in this paragraph or may
be enforced in a separate action brought for determining attorney fees.
10. Time is of the Essence. Time is of the essence of this Agreement
and of each and every provision hereof.
11. Mutual Cooperation. The parties hereto shall cooperate with each
other to achieve the purpose of this Agreement, and shall execute such
other and further documents and take such other and further actions as
may be necessary or convenient to effect the transactions described
herein.
12. Further Actions. At any time, and from time to time, each party
hereto agrees to take actions and to execute and deliver documents, at
its own expense, as may be reasonably necessary to effectuate the
purposes of this Agreement.
13. Indemnification. Client and Consultant agree to indemnify, defend
and hold each other harmless from and against all demands, claims,
actions, actions, losses, damages, liabilities, costs and expenses,
including without limitation, interest, penalties and attorneys fees
and expenses asserted against or imposed or incurred by either party by
reason of or resulting from a breach of any representation, warranty,
covenant condition or agreement of the other party to this Agreement.
14. Facsimile Counterparts. If a party signs this Agreement and
transmits an electronic facsimile of the signature page to the other
party, the party who receives the transmission may rely upon the
electronic facsimile as a signed original of this Agreement.
15. Confidentiality. Client and Consultant agree that all non-public
information furnished
and to be furnished pursuant to this Agreement shall be held in strict
confidence and shall not without prior written consent of the
respective party, be disclosed in any manner whatsoever, in whole or in
part, and shall not be used by the other party for any purpose other
than fulfilling the terms of this Agreement detailed herein. The term
"information" shall include, but is not limited to, all documents,
contracts, memoranda, customer names and lists, analyses, compilations,
data studies, financial data and other materials and information
exchanged hereunder.
IN WITNESS WHEREOF, the parties hereto have executed and delivered this
Agreement as of the date first above written.
IPVoice Communications, Inc.
Client Date July 23, 1998
By: /s/ Xxxxxxx X. Will
----------------------------------
Signature
Xxxxxxx X. Will
President/COO/Chairperson
Calpe, Ltd.
Consultant/Agent Date
By: /s/ Xxxxxx X. Xxxxxx
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Xxxxxx X. Xxxxxx
Director
