EXHIBIT 3
CONSULTING AGREEMENT
This consulting agreement (this "Agreement") is made this 5th day of February,
2003, between Reality Wireless Networks, Inc., a bulletin board public company
("RWNT"), having a principal place of business located at 000 X. Xxxxxxxx, Xxxxx
X, Xxxxxxxx, Xxxxxxxxxx 00000, and Artco Enterprises ("ARTCO"), having a
principal residence at 0000x Xxxxxxxxx Xxxxxxxx, Xxxxxxxx Xxxxxx, XX
(collectively the "Parties" and each individually a "Party").
RECITALS:
ARTCO is a consulting firm whose principal place of business is located in
Franklin Square, NY; and
RWNT desires to retain ARTCO as a business development consultant.
NOW THEREFORE, in consideration of their mutual promises made herein, and for
other good and valuable consideration, receipt of which is hereby acknowledged
by each Party, the Parties, intending to be legally bound, hereby agree as
follows:
I. Recitals. The Parties agree that the foregoing recitals are true and
correct and are incorporated herein by reference.
II. Engagement. RWNT hereby engages ARTCO and ARTCO hereby accepts such
engagement upon the terms and conditions set forth in this Agreement.
A. Duties: ARTCO is engaged by RWNT as a business development and
marketing consultant, to represent RWNT and its business in
the United States; to assist RWNT in expanding its business
operations in "business consulting" services and trade. ARTCO
will report directly to the Chief Executive Officer ("CEO") of
RWNT. The term of this Agreement begins immediately.
B. Terms: Subject to the terms of this Agreement relating to
termination, this Agreement shall continue in full force and
effect for a term of twelve (12) months from the date hereof,
and may be renewed for successive periods of twelve (12)
months thereafter by the mutual written agreement of the
Parties hereto made at least one (1) month prior to the
expiration of such term.
C. Fee Structure:
1. Time is of the Essence: Time is of the essence with
respect to the Parties' respective obligations under
this Agreement.
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2. Amount of Fee: RWNT hereby agrees to issue to ARTCO,
and ARTCO agrees to accept from RWNT, one million
shares (1,000,000) shares of common stock of RWNT,
which will be registered by RWNT on a Registration
Statement Form S-8 with the Securities and Exchange
Commission.
3. Timing of Payment of Fee: Any and all fees due to
ARTCO under this Agreement shall be paid upon
execution of this Agreement.
D. Expense Reimbursement: RWNT shall reimburse ARTCO for all
pre-approved expenses incurred. Expenses and materials
reimbursements requests shall be made in writing and submitted
to RWNT.
E. Independent Contractors: In all matters relating to this
Agreement and otherwise, the Parties hereto shall be and act
as independent contractors, neither shall be the employee or
agent of the other, and each shall assume any and all
liabilities for its own acts. As a result of his independent
contractor status, ARTCO, and not RWNT, shall be responsible
for any and all income taxes and any and all other employment
related taxes or assessments which may be required of ARTCO in
his jurisdiction. Neither Party shall have any authority to
create any obligations, express or implied, on behalf of the
other Party and neither Party shall have any authority to
represent the other Party as an employee or in any capacity
other than as herein provided.
III. Termination: This Agreement may be terminated by written notice of
either Party hereto forwarded to the other Party hereto. This Agreement
shall be binding on the Parties hereto for the Term provided herein,
unless terminated as provided herein.
IV. Arbitration: Any controversy or claim arising out of or relating to
this Agreement, or the breach thereof, or its interpretation or
effectiveness, and which is not settled between the Parties themselves,
shall be settled by binding arbitration in New York and judgment upon
the award may be entered in any court having jurisdiction thereof.
Nothing, however, contained herein shall limit RWNT's rights to
injunctive relief as set out in Paragraph V of this Agreement. The
prevailing Party in any litigation, arbitration or mediation relating
to collection of fees, or any other matter under this Agreement, shall
be entitled to recover all its costs, if any, including without
limitation, reasonable attorney's fees, from the other Party for all
matters, including, but no limited to, appeals.
V. Injunctive Relief: ARTCO agrees that his violation or threatened
violation of any of the provisions of this Agreement shall cause
immediate and irreparable harm to RWNT and, in such event, an
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injunction restraining ARTCO from such violation may be entered against
ARTCO in addition to any other relief available to RWNT.
VI. Representations and Warranties: ARTCO represents, warrants, covenants
and agrees that ARTCO has a right to enter into this Agreement; that
ARTCO is not a Party to any agreement or understanding, whether written
or oral, which would prohibit ARTCO's performance of his obligations
hereunder; and ARTCO is not in possession of any proprietary
information belonging to another Party which ARTCO is legally
prohibited from using. A breach of this Paragraph VI shall be ground
for immediate termination of this Agreement.
VII. Indemnification and Hold Harmless Clause: ARTCO agrees to indemnify and
hold RWNT and its affiliates, control persons, directors, officers,
employees and agents (each an "Indemnified Person") harmless from and
against all losses, claims, damages, liabilities, costs or expenses,
including those resulting from any threatened or pending investigation,
action, proceeding or dispute whether or not RWNT or any such other
Indemnified Person is a party to such investigation, action, proceeding
or dispute, arising out of RWNT's entering into or performing services
under this Agreement, or arising out of any matter referred to in this
Agreement. This indemnity shall also include RWNT's and/or any such
other Indemnified Person's reasonable attorneys' and accountants' fees
and out-of-pocket expenses incurred in, and the cost of RWNT's
personnel whose time is spent in connection with, such investigations,
actions, proceedings or disputes which fees, expenses and costs shall
be periodically reimbursed to RWNT and/or to any such other Indemnified
Person by ARTCO as they are incurred; provided, however, that the
indemnity herein set forth shall not apply to an Indemnified Person
where a court of competent jurisdiction has made a final determination
that such Indemnified Person acted in a grossly negligent manner or
engaged in willful misconduct in the performance of the services
hereunder which gave rise to the loss, claim, damage, liability, cost
or expense sought to be recovered hereunder (but pending any such final
determination the indemnification and reimbursement provisions
hereinabove set forth shall apply and ARTCO shall perform its
obligations hereunder to reimburse RWNT and/or each such other
Indemnified Person periodically for its, his or their fees, expenses
and costs as they are incurred). ARTCO also agrees that no Indemnified
Person shall have any liability (whether direct or indirect, in
contract or tort or otherwise) to ARTCO for or in connection with any
act or omission to act as a result of its engagement under this
Agreement except for any such liability for losses, claims, damages,
liabilities or expenses incurred by ARTCO that is found in a final
determination by a court of competent jurisdiction to have resulted
from such Indemnified Person's gross negligence or willful misconduct.
If for any reason, the foregoing indemnification is unavailable to RWNT
or any such other Indemnified Person or insufficient to hold it
harmless, then ARTCO shall contribute to the amount paid or payable by
RWNT or any such other Indemnified Person as a result of such loss,
claim, damage or liability in such proportion as is appropriate to
reflect not only the relative benefits received by ARTCO and its
shareholders on the one hand and RWNT or any such other Indemnified
Person on the other hand, but also the relative fault of ARTCO and RWNT
or any such other Indemnified Person, as well as any relevant equitable
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considerations; provided that in no event will the aggregate
contribution by RWNT and any such other Indemnified Person hereunder
exceed the amount of fees actually received by RWNT pursuant to this
Agreement. The reimbursement, indemnity and contribution obligations of
ARTCO hereinabove set forth shall be in addition to any liability which
ARTCO may otherwise have and these obligations and the other provisions
hereinabove set forth shall be binding upon and inure to the benefit of
any successors, assigns, heirs and personal representatives of ARTCO,
RWNT and any other Indemnified Person.
The terms and conditions hereinabove set forth shall survive the
termination and expiration of this Agreement and shall continue
indefinitely thereafter.
VIII. Notice: Any notice given or required to be given under this Agreement
shall be in writing and service thereof shall be sufficient if sent be
hand or by telex or telegram, facsimile transmission or other similar
means of communication if confirmed by mail, or by certified mail,
return-receipt requested, with postage prepaid, directly to the
Parties' respective addresses herein above set forth. Each Party may,
from time to time, by like written notice, designate a different
address to which notice should thereafter be sent.
IX. Survival: The covenants contained in this Agreement shall survive the
termination of this Agreement, for whatever reason, and shall be
binding on the Parties.
X. Binding Effect: The terms of the Agreement shall be binding upon the
respective Parties hereto, their heirs, their owners, co-owners,
partners, associates, employers, affiliates, subsidiaries, parent
companies, nominees, representatives, employees, agents, consultants
and successors and assigns.
XI. Assignment: This Agreement and the rights and obligations hereunder may
not be assigned or delegated by either Party without the prior consent
of the other Party.
XII. Choice of Law: This Agreement is made in New York, and all questions
related to the execution, construction, validity, interpretation and
performance of this Agreement and to all other issues or claims arising
hereunder, shall be governed and controlled by the laws of New York.
XIII. Venue: The state of New York shall be proper venue for any and all
litigation and other proceeds involving this Agreement.
XIV. Counterparts: This Agreement may be signed in more than one
counterpart, in which case each counterpart shall constitute an
original of this Agreement.
XV. Severability: In the event that any term, covenant, or condition of
this Agreement or the application thereof to any Party or circumstances
shall, to any extent, be invalid or unenforceable, the remainder of
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this Agreement, or the application of such term, covenant or condition
to Parties or circumstances other than those as to which it is held
invalid or non enforceable, shall not be affected thereby; and each
term, covenant, or condition of this Agreement shall be valid and shall
be enforced to the fullest extent permitted by law.
XVI. Modification: No amendment, modification, or waiver of this Agreement
or any provision hereof shall be valid unless in writing duly signed by
the Parties hereto, which writing specifically refers to this Agreement
and states that it is an amendment, modification, or waiver.
XVII. Entire Agreement: This Agreement represents the entire agreement
between the Parties to this Agreement concerning its subject matter,
and any and all prior representations and agreements with respect to
such subject matter, if any, are merged herein and are superseded by
this Agreement.
XVII. Construction: Paragraph headings are for convenience only and are not
intended to expand or restrict the scope or substance of the provisions
of this Agreement. Whenever used herein, the singular shall include the
plural, the plural shall include the singular, and pronouns shall be
read as masculine, feminine, or neuter as the context requires.
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IN WITNESS WHEREOF, the Parties have signed this Agreement as of the day and
year first above written.
Reality Wireless Networks, Inc.
Date: February 5, 2003 By: /s/ Xxxxxx Xxxxx
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Xxxxxx Xxxxx, CEO & Chairman
Date: February 5, 2003 By: /s/ ARTCO
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ARTCO
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