Consultant Agreement
CONSULTANCY AGREEMENT
BETWEEN
VGTEL INC.
AND
BRAIN and POWER LTD.
This CONSULTANCY AGREEMENT ("Agreement"), dated this 18TH day of May 2006 (the
"Effective Date"), is entered into by and between, VGTel Inc., a New-York
Corporation, having its business offices at 0000 Xxxxx Xxxx, Xxxxxxx XX 00000
("VGTEL"), and Brain & Power Ltd. an Israeli Corporation with offices located at
0 Xxxxxxx Xx., Xxxxxx Xxxxxx, Xxxxxx ("B&P"), hereinafter individually referred
to as "Party" and collectively referred to as "Parties".
RECITALS
--------
WHEREAS, VGTel developed a unique platform providing Global Messaging Gateway
using Voice Over Internet Protocol to bypass the need for traditional telecom
equipment; and,
WHEREAS, B&P has experience and knowledge developing out-of-the-box solutions
for remote digitally controlled communication applications; and,
WHEREAS, VGTel is looking for ways to expand the availability of its platform,
making it easy for people to use, and take advantage of the offered services;
and
NOW THEREFORE, the Parties, in consideration of the mutual covenants and
agreements hereinafter set forth,
agree as follows:
WHEREAS, B&P has will explore, design and test new easy ways to access the GMG
platform.
1. DUTIES AND OBLIGATIONS
------------------------
1.1 PARTIES OBLIGATIONS: During the Term of this Agreement, as defined
---------------------
herein in section 1.2, B&P will suggest new ideas and ways for users to access
the GMG platform, and present the ways to implement those ideas. Following the
consent of VGTel, B&P will proceed to design and develop the tools associate
with the new approach.
VGTel will provide B&P marketing and background technical materials,
as may be requested from time to time to support B&P effort. VGTel's will update
B&P with all new developments and provide technical updates and know-how to
assist B&P's activity.
1.2 TERM OF AGREEMENT: This Agreement shall be effective and the Parties'
--------------------
obligations shall commence upon the Effective Date of this Agreement, and shall
continue for an initial period of six (6) months from the Effective Date
("Term"). This Agreement will be renewed on a year-to-year basis after the
expiration of the initial Term or any subsequent term. If either Party desires
to cancel this Agreement upon the expiration of the initial Term or any Renewal
Term, it shall give the other Party notice of its intent to cancel at least
thirty (30) days prior to the expiration of the current Term or Renewal Term.
This Agreement shall continue and remain in full force and effect until
cancelled by either party upon notice as provided herein.
1.4 ADDITIONAL SERVICE: The Parties may agree to additional services during
-------------------
the Term of this Agreement ("Additional Service"). Any Additional Service shall
be set forth as an addendum to this Agreement and shall otherwise be governed by
the terms and conditions of this Agreement.
1.5 COMPENSATIONS: For its effort, B&P will be compensated for Time &
--------------
Materials + travel and
expenses, as follows:
Time:
Hourly rate of $100
Traveling days will be paid as 8 hours.
Travel: Actual
expenses + accommodations
2. INVOICING AND PAYMENT TERMS :
---------------------------------
2.1 INVOICING: On the first day of each month, during the term of this
----------
agreement, B&P will issue an invoice to cover the activities done during the
previous month. The invoice will be sent by Email to VGTel designated Email
address, and/or faxed to VGTel accounting.
2.2 PAYMENT TERMS: VGTel will wire the payment for each invoice no later
--------------
than 5 days after receiving the invoice. The wire will be done into B&P account,
and VGTel will be responsible for all costs associated with the transfer.
2.3 STOCK : B&P will accept 400,000 A series Units of VGTel, as a payment
--------
for the first $10,000 owed by VGTel for services rendered by B&P under this
contract.
2.4 TAXES: Parties acknowledge that the paid compensations are
-----
free from all taxes and/or fees associated with the service, and no other
charges will be expected from B&P for the provided service.
3. DISPUTED CHARGES: Should VGTel dispute any of the charges on an
------------------
invoice, it shall notify B&P of the disputed charges not later than four (4)
days from the date of receiving the invoice. Said dispute shall set forth in
writing all details concerning the disputed sum. After resolution of the
disputed charges, the adjustments, if any, shall be immediately applied. If any
dispute is not accepted or denied within thirty (30) days then the dispute will
be considered as accepted by B&P failure to respond.
4. PROVISION OF INFORMATION AND CONFIDENTIALITY
------------------------------------------------
4.1 CONFIDENTIAL INFORMATION: The parties understand and agree that the Terms
-------------------------
and Conditions of this Agreement, all documents referenced herein,
communications between the parties regarding this Agreement or the Service to be
provided hereunder (including price quotes to each Party for any Service propose
to be provided or actually provided hereunder) and all information regarding the
Customers of either Party, as well as such information relevant to any other
agreement between the parties (collectively "Confidential Information"), are
confidential.
4.2 LIMITED DISCLOSURE: A party shall not disclose Confidential Information
-------------------
unless subject to discovery or disclosure pursuant to legal process, or to any
other party other than the directors, officers, and employees of a party or
agents of a party including their respective brokers, lenders, insurance
carriers or prospective purchasers who have specifically agreed in writing to
nondisclosure of the terms and conditions hereof. Any disclosure hereof
required by legal process shall only be made after providing the non-disclosing
party with notice thereof in order to permit the non-disclosing party to seek an
appropriate protective order or exemption. Violation by a party or its agents
of foregoing provisions shall entitle the non-disclosing party, at its option,
to obtain injunctive relief without a showing of irreparable harm or injury and
without bond.
4.3 SURVIVAL AND CONFIDENTIALITY: The provisions of this Section 4 will be
------------------------------
effective as of the date of this Agreement and remain in full force and effect
for a period equal to the longer of: (i) three (3) years following the effective
date of this Agreement; or (ii) one (1) year following the termination of all
Service hereunder.
5. TERMINATION: This Agreement can be terminated:
------------
5.1 If payment has not been received by the due date described above, or any
extension thereof permitted in writing, for all undisputed payments to B&P,
and/or if the other Party fails to abide by all of the terms of this Agreement
hereof, including, without limitation, any breach of this Agreement, either
Party may at its sole discretion and after fourteen (14) days prior written
notice to the other Party, terminate this agreement. The damaged Party reserves
the right to collect reasonable attorney's fees and any and all costs incurred
by it in the enforcement of this Agreement whether or not suit is instituted.
Nothing herein shall be construed to constitute a waiver of either Party's right
to declare the other to be in default under this Agreement on account of such
breach, or to terminate this Agreement after the fourteen (14) days written
notice has elapsed and the parties expressly waives and relinquishes any right
to receive any notice longer than such fourteen (14) days which may exist under
any federal, state or local law or regulation; and /or
5.2 If either party is prohibited from furnishing or fulfill its
obligations, or if any material term contained herein is substantially changed
by order of the highest court of competent jurisdiction to which the matter is
appealed, the FCC, or any other federal, state or local government authority,
either party may immediately upon written notice to the other party terminate
this Agreement without liability or further obligation, except for unpaid
charges as of the effective date of such termination; and /or
5.3 A Party may, immediately upon written notice to the other Party and
after complying with the applicable requirements of this subsection, without
incurring any liability except for willful misconduct, terminate this Agreement,
or restrict, suspend, or discontinue providing its Services, if the Party has
reason to believe that the other Party and/or any of its officers, directors,
employees, contractors, agents, and/or servants has engaged or is engaging in
any unethical, illegal, and/or fraudulent use of the Services with the intent to
avoid payment of charges.
6. NO WARRANTIES: B&P will use reasonable efforts under the
--------------
circumstances to come up with the expected ways and devices to promote VGTel's
-----
products and technologies, adhered with government regulations and sound
business practices. B&P makes no warranties about the services provided
hereunder, expressed or implied, including but not limited to any warranty of
merchantability or fitness for particular purpose.
7. LIMITATION OF LIABILITY AND INDEMNIFICATION: Each Party agrees that the
---------------------------------------------
other shall in no event be liable for any loss, expense or damage for (i) loss
of revenue, profits, savings, business or goodwill, and (ii) exemplary,
proximate, consequential, or incidental damages and expenses of any type or
nature on account of any breach or default hereunder by the other, except as it
applies to SECTION 2 above.
7.1 INDEMNIFICATION: Each Party agrees to indemnify, defend, and hold
---------------
each other and their Affiliates free and harmless from and against any and all
loss, cost, liability, or expense (including court costs and actual fees of
attorneys and other professionals) arising out of or in connection with the
Service, including, but not limited to any such loss, cost, liability, or
expense arising out of or resulting from any claim brought by a customer or
other third party utilizing the other Party's services for any special,
incidental, indirect or consequential damages of any kind whatsoever, whether
such damages arise from the use, inability to use, failure of, defects in, the
conditions of, delay in delivery of, non-delivery of, or quality of the
products, or any component thereof.
8. ENTIRE AGREEMENT: This Agreement supersedes and merges all prior
-----------------
agreements, promises, understanding, statements, representations, warranties,
indemnities and covenants and all inducements to the making of this Agreement
relied upon by either Party herein, whether written or oral, and embodies the
Parties' complete and entire agreement with respect to the subject matter
hereof. No statement or agreement, oral or written, made before the execution
of this Agreement shall vary or modify the written terms hereof in any way
whatsoever.
9. SEVERABILITY: In the event that any portion of this Agreement is found
------------
to be invalid, illegal or not binding for any reason whatsoever, the remaining
portions of this Agreement shall remain in effect and binding upon the parties.
10. GOVERNING LAW: This Agreement shall be governed by and construed in
--------------
accordance with the laws of the State of Texas with venue in the city of
Houston, Texas.
11. DISPUTE RESOLUTION: The Parties will in good faith negotiate to resolve
------------------
any dispute arising out of or relating to this Agreement promptly between
representatives who have authority to settle the controversy. Any dispute
arising out of or relating to this Agreement that have not been resolved will be
finally settled by arbitration conducted in accordance with the Texas
Arbitration Act, Section 17.001 et seq. of the Texas Civil Practice and Remedies
Code. The location of the arbitration shall be in Houston, Xxxxxx County, Texas
by the American Arbitration Association unless agreement by mutual consents of
the Parties to the contrary. Judgment upon the award rendered by the
arbitrator(s) may be entered by any court with Jurisdiction. The Parties agree
that under no circumstances will either Party file or cause to be filed lawsuits
in any court.
12. REGULATIONS: This Agreement is made expressly subject to all present and
-----------
future valid orders and regulations of any regulatory body having jurisdiction
over the subject matter hereof and to the laws of the United States of America,
any of its states, or any foreign governmental agency having jurisdiction. In
the event this Agreement, or any of its provisions, shall be found contrary to
or in conflict with any such order, rule, regulation, or law, this Agreement
shall be deemed modified to the extent necessary to comply with any such order,
rule, regulation, or law and shall be modified in such a way as is consistent
with form, intent, and purpose of the Agreement.
13. REPRESENTATION: The Parties acknowledge and agree that the relationship
---------------
between them is solely that of independent contractors and nothing contained
herein should be deemed, interpreted, or construed as creating a joint venture,
partnership or agency relationship between the Parties. Neither Party, nor its
respective employees, agents or representatives, has any right, power or
authority to act or create any obligation, express or implied, on behalf of the
other Party.
14. FORCE MAJEURE: The Parties' obligations under this Agreement are
--------------
subject to, and neither Party shall be liable for delays, failures to perform,
damages, losses or destruction, or malfunction of any equipment or any
consequence thereof caused or occasioned by, or due to, fire, flood, water, the
elements, labor disputes or shortages, utility curtailments, power failures,
explosions, civil disturbances, governmental actions, shortages of equipment for
supplies, unavailability of transportation, act or omission of third Parties.
Each Party however shall use reasonable efforts under the circumstances to avoid
or remove such causes for non-performance and shall proceed to perform with
reasonable dispatch whenever such causes are removed or cease.
15. NO WAIVER: The failure of either Party to enforce or insist upon
----------
compliance with any of the provision of the Agreement or the waiver thereof, in
any instance, shall not be construed as a general waiver or relinquishment of
any other provisions of the Agreement.
16. NOTICES: All notices, requests, demands, and other communications
-------
under this Agreement shall be in writing and shall be deemed to have been duly
given on the date of service: If served personally on the party to whom notice
is to be given, or within five (5) days after mailing if mailed to the party to
whom notice is to be given, by certified mail return receipt or overnight
courier and properly addressed to the party at the address set forth immediately
below, or any other address that a party may designate by written notice to the
others.
If to B&P:
Brain & Power Ltd.
Xxxxxxx Xxxxx
0 Xxxxxxx Xx.
Xxxxxx Xxxxxx, Xxxxxx
Telephone: x000 0 0000000
Fax: x000 0 0000000
If to VGTel:
VGTel Inc.
Xxx Xxxxxx
0000 Xxxxx Xxxx.
Xxxxxxx XX 00000
XXX
Telephone: x0 000 0000000
Fax:: x0 000 0000000
17. COUNTERPARTS: This Agreement may be executed in one or more
------------
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
18. SUCCESSORS AND ASSIGNS: This Agreement shall be binding upon and
------------------------
inure to the benefit of the parties hereto and their respective successors or
assigns, provided, however, that either Party shall not assign or transfer its
rights or obligations under this AGREEMENT without the prior written consent of
the other Party, which consent shall not be unreasonably withheld or delayed,
and further provided that any assignment or transfer without such consent shall
be void.
19. FURTHER ACTS: Each party to this Agreement agrees to perform any
-------------
further acts and execute and deliver any documents that may be reasonably
necessary to carry out the provisions of this Agreement.
20. AUTHORITY: Each person executing this Agreement represents and
---------
warrants that he has full power to enter into this Agreement on behalf of the
Party hereto and that each Party has the full power to carry out its respective
obligations pursuant to this Agreement. Further, each person executing this
Agreement on behalf of a Party also represents and warrants that he has obtained
all corporate, third party approvals necessary to enter into this Agreement and
carry out the transaction contemplated thereby.
21. ATTORNEYS FEES: The prevailing Party in any action, suit,
---------------
proceeding, arbitration, or mediation shall be entitled to recover, in addition
--
to any other available remedies, their actual fees and costs incurred in
connection with the action, suit, proceeding, arbitration or mediation.
IN WITNESS WHEREOF, the Parties acknowledge that each of the provisions of this
Agreement has been expressly agreed to and each has caused this Agreement to be
signed and delivered by its duly authorized officer representatives as of the
"Effective Date" written above.
FOR B&P FOR VGTel
/s/ Xxxxxxx Xxxxx /s/ Name: Xxx Xxxxxx/s/
Title: General Manager Title: CEO
Date: May 18. 06 Date: May 18.06
B
