CONSULTING AGREEMENT
(the "Agreement")
This Agreement, dated for reference the 1st day of May 2007, by and between:
EYI Industries, Inc.
0000 Xxxxxxx Xxxxxx
Xxxxxxx, XX X0X 0X0
Tel: 000-000-0000 Fax: 000-000-0000
("EYI")
AND:
Flaming Gorge, Inc.
00 Xxxxx Xxxx Xxxxxx
Xxxxxxxx, XX 00000
Tel: 000-000-0000 Fax: 000-000-0000
(the "Consultant").
WHEREAS:
A. EYI is engaged in the sale and marketing of health and wellness
products, water filtration systems and a fuel additive product
and requires assistance in the sale and marketing of EYI products
and services: (the "Business");
B. Consultant is a company incorporated under the laws of the
State of Idaho; the Consultant, as at the date of this Agreement,
is in good standing under the laws of the State of Idaho,
Xxx Xxxxxxxx is the President of the Consultant;
C. The Principal of the Consultant is Xxx Xxxxxxxx (the "Principal");
and
D. The Principal has the necessary experience to assist EYI and the
Business.
NOW THEREFORE the parties hereto agree as follows:
1. APPOINTMENT
1.1 EYI hereby appoints Consultant to provide services on behalf of
EYI and Consultant hereby accepts such appointment on the terms and
conditions set out herein.
1.2 Subject to the approval of the Board of Directors of EYI, the
Principal whose services are being provided via the Consultant shall
be the President of EYI and such other title as the Consultant and EYI
shall agree upon from time to time.
2. TERM
2.1 The term of this Agreement shall be for an initial period of
five (5) years ("Initial Term") commencing on May 1, 2007. This
Agreement shall automatically renew on a year to year basis at the end
of the Initial Term unless terminated in accordance with the provisions
set out in paragraphs 2.2 and 2.3 herein.
2.2 This Agreement shall terminate, without further notice upon:
a. The winding up or bankruptcy of Consultant or its Principal;
b. The Consultant or its Principal being found guilty of fraud or other
serious criminal offense or being declared mentally incompetent;
c. The Agreement of the Consultant and EYI to so do;
d. The Consultant being unable, for whatever reason, to continue to provide
services to EYI;
e. A material breach of the terms of this Agreement, including, without
limiting the generality of the foregoing, a breach by Consultant of the
provisions of Article 3.1.
2.3 Notwithstanding the foregoing either party may terminate this
Agreement without reason, upon one (1) year's written notice to the other.
Provided however, termination of this Agreement shall not adversely affect
payment of any monies due hereunder to Consultant unless termination was
due to a material breach of this Agreement by Consultant or its Principal
or due to their fraud or other serious criminal offense.
3. SERVICES
3.1 The Consultant shall provide the following services and advice
to EYI in addition to such other services as EYI shall reasonably request and
Consultant agrees to provide, namely:
a. Consultant will perform the duties and services usually expected of a person
holding the office of President of a Nevada corporation;
b. Consultant will also supervise the officers and senior management of
Essentially Yours Industries, Inc., a subsidiary of EYI; the COO and CFO
of Essentially Yours Industries, Inc. will report to the Consultant;
c. Consultant will provide advice, experience and supervise sales and marketing
activities;
d. Consultant will be responsible for raising financing and capital for the
operations of EYI;
e. Consultant will have signing authority for legal and financial matters of
EYI;
f. Consultant will provide and perform functions and duties of a CEO for EYI;
g. Consultant agrees to provide EYI with such further and other services and
advice as EYI shall reasonably request and the Consultant agree to provide.
3.2 Consultant agrees to provide the services described in paragraph 3 and will
provide such services as necessary for the orderly conduct of EYI's business.
4 REMUNERATION
4.1 In consideration of the efforts of Consultant to be provided herein EYI
agrees to pay a salary to the Consultant in the sum of Twenty Thousand
($20,000.00) USD and Six Hundred ($600.00) USD per month for a monthly car
allowance, payable on the 15th and 30th of the month that services are
provided.
5. RELATIONSHIP
5.1 Nothing contained herein will be construed to make the Consultant an
employee of EYI. The Consultant will at all times act as an independent
contractor. The Consultant will determine the method, details, and means of
performing its services under this Agreement. The Consultant agrees to comply
with all laws, ordinances, rules, and regulations, which are applicable to the
performance of its services. The Consultant agrees to indemnify and hold EYI
harmless from all claims, damages, and expenses resulting from the Consultant's
failure to comply and his performance hereunder. EYI may provide Consultant
with authority to bind EYI to contracts and agreements and to make
representations on behalf of EYI; in such case the authority will be set out
herein or approved in writing by resolution of the Board of Directors of EYI.
6. CONFIDENTIALITY
6.1 The Consultant acknowledges that EYI has certain rights in certain
confidential, proprietary, trade secret or technical information including
but not limited to:
a. Computer software, including, but not limited to,
source and object codes, flowcharts, algorithms, record layouts, routines,
report formats, data, compilers, assemblers, design concepts and related
documentation, manuals, and other materials whether in human or machine
readable form;
b. Discoveries, inventions, copyrights, concepts and ideas, whether patentable
or not, and including, without limitation, the nature and result of research,
development, manufacturing, marketing, planning and any other business
activities;
c. Product specifications, formulas, designs, manufacturing processes and
methods, production machinery, quality assurance methods, binary compensation
plans, accounting systems, know-how and any other proprietary information of
any kind whatsoever;
d. Database of independent business associates and/or possible users of EYI's
products;
All of which shall hereinafter be referred to as "Subject Information"; and
The Consultant further acknowledges that the Subject Information was
developed or acquired by EYI at considerable expense, has independent
economic value from not being known or readily ascertainable by others, and
is the subject of effortsmade by EYI to maintain in secrecy; and
EYI wishes to maintain its rights to the Subject Information, and
The Consultant agrees not to, directly or indirectly, in any way,
reveal, report, publish, disclose, transfer or otherwise use any of the
Subject Information for his own personal benefit or gain or in any way
other than in the best interests of EYI.
7. COVENANTS
7.1 The Consultant covenants to EYI as follows:
a. To carry out the services performed on behalf of EYI with due
diligence and in the best interests of EYI;
b. To exercise all reasonable effort to provide the services to EYI
on a timely basis and to perform the services in accordance with good
business practice;
c. To comply with all lawful and reasonable directions and instructions
of EYI;
The Consultant acknowledges that the foregoing covenants are material
provisions of this Agreement and if Consultant breaches these covenants
whether by action or inaction that material harm will result to EYI and
its Business. The Consultant also acknowledges that the harm that may
result from a breach may not be fully compensated to EYI by payment of
damages and that an injunction or similar remedy may be necessary to
fully protect EYI and the Consultant agrees that EYI may obtain an
injunction or other similar relief from a Court of competent jurisdiction
and that if EYI seeks such a remedy that the Consultant will not
oppose the application of EYI.
8. NON-ASSIGNMENT
8.1 The Consultant shall not assign any of the rights
or benefits granted herein.
9. ARBITRATION
9.1 Save and except for actions for injunctive relief or similar, the
Consultant and EYI shall make every effort to resolve amicably by direct,
informal negotiation any disagreement or dispute arising between them
under and in connection with this Agreement. If, after TEN (10) DAYS
from the commencement of such informal negotiations, the Consultant
and EYI have been unable to amicably resolve any dispute arising out
of or in connection with this Agreement, except for actions for
injunctive relief or similar, either Consultant or EYI may require
that the dispute be referred to and finally resolved by Arbitration,
under the rules of the American Arbitration Association (the "Rules"),
which Rules are deemed to be incorporated by reference into this Article.
The tribunal shall consist of One (1) Arbitrator. The Consultant and
EYI will endeavour within TEN (10) DAYS of the matter being referred
to Arbitration to agree upon an Arbitrator, failing which the Arbitrator
shall be appointed in accordance with the Rules. The place of Arbitration
shall be Las Vegas, Nevada.
9.2 The language of the Arbitration shall be English. The Consultant and EYI
agree that the Arbitrator shall be requested to make his award within SIXTY
(60) DAYS following the later of the conclusion of the Arbitration hearings
or any exchange of final written submissions by the Consultant or EYI, and
further agree that word of the Arbitrator shall be final and binding.
10. NOTICES
10.1 Any notice required or permitted to be given hereunder shall be in
writing and shall be effectively given if:
a. Delivered personally;
b. Sent by prepaid courier service or mail; or
c. Sent by fax;
addressed to the relevant party at the address/number shown for that party
at the beginning of this Agreement.
10.2 Any notice so given shall be deemed conclusively to have been given
and received when so personally delivered or, if sent by fax, on the first
business day thereafter, or if sent by mail, on the third business day
thereafter. Either Consultant or EYI may change any particulars of its
address/number for notice by notice to the others in the manner above
described.
11. PRINCIPAL
11.1 Xxx Xxxxxxxx acknowledges that he is the Principal of the Consultant,
has reviewed this Agreement, and being content therewith covenants and
agrees to cause the Consultant to comply and abide with all of the terms
and conditions of this Agreement.
11.2 Xxx Xxxxxxxx, the Principal of the Consultant, further agrees to
provide his services under Section 3 on a full-time basis to EYI.
12. GENERAL
12.1 Time shall be of the essence of this Agreement.
12.2 Any changes or amendments or additions to this Agreement must
be in writing and signed by both parties to be effective.
12.3 This Agreement shall be construed in accordance with the laws
of the State of Nevada and the Courts of said State sitting at Las
Vegas, Nevada shall have, subject to the arbitration provisions
contained herein and without regard to conflicts of law provisions,
exclusive jurisdiction to hear all actions arising out of or in respect
of this Agreement.
12.4.1 Failure on the part of a 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 any rights hereunder.
12.5 This is a complete and exclusive statement of the Agreement between
the parties, which supersedes and merges all prior proposals, understandings
and all other agreements, oral or written, between the parties relating to
this Agreement. This Agreement may not be modified or altered except by
a written instrument duly executed by both parties.
12.6 The provisions of this Agreement are severable and if any term is
alleged or invalid for any reason whatsoever such allegations or invalidity
shall not affect the validity of the remainder of this Agreement.
12.7 This Agreement shall inure to the benefits of and be binding upon
the parties hereto and their respective successors and assigns, as
permitted herein.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement
effective as of the date first above written.
EYI Industries, Inc. Flaming Gorge, Inc.
Per: /s/ Xxxx X'Xxxxx Per: /s/ Xxx Xxxxxxxx
Name: Xxxx X'Xxxxx Name: Xxx Xxxxxxxx
Title: Chief Operations Officer Title: President & CEO
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