Michael Barber Agreement CONSULTANT SERVICES AGREEMENT
EXHIBIT 10.15
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Agreement
THIS
CONSULTANT SERVICES AGREEMENT (the “Agreement”) is entered into as of
_________________(the “Effective Date”) by and between China Wi-Max
Communications, Inc. (“China Wi-Max”), a Nevada corporation with its principal
offices located at ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ #▇▇▇, ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇, and ▇▇▇▇▇▇▇
▇▇▇▇▇▇, a resident of the State of Colorado, (“Consultant”). China
Wi-Max and Consultant are referred to individually as a “Party” and collectively
as the “Parties.” This Agreement replaces, supersedes and renders
void any and all agreements, arrangements or contracts for services between the
Parties prior to the date of this Agreement. China Wi-Max and
Consultant agree as follows:
Consultant’s
Services.
Subject to the terms and conditions of
this Agreement and beginning on the Effective Date, China Wi-Max hereby engages
Consultant to render services for China Wi-Max including, without
limitation, as investment relations manager (the “Services”). Such duties
shall include (a) introducing China Wi-Max to Consultant’s contacts, including
brokerage houses, financial personnel and investors for PIPEs and other
capital-raising activities; (b) assisting China Wi-Max with media coverage,
relations and press releases; and (c) preparing a biographical sketch to be
posted on the website of China Wi-Max to inform the public of Consultant’s
background and capabilities. Consultant hereby accepts such
engagement from China Wi-Max. In performing his obligations
hereunder, Consultant shall coordinate the Services to be performed with
a China Wi-Max-designated employee or representative, who shall be Consultant’s
principal contact with regard to any and all services requested of Consultant,
and to whom Consultant should direct all reports, findings, services, ▇▇▇▇▇▇▇▇
and the like, relating to its provision of Services to China
Wi-Max.
Term
and Termination.
Term. The
term of this Agreement shall begin on the Effective Date and end on the first
anniversary hereof; provided, however, that China Wi-▇▇▇ ▇▇▇, in its sole
discretion, with written notice given at least fifteen (15) days prior to the
first anniversary hereof, have the option to extend the Agreement for a period
of additional six months beyond the first anniversary (collectively, the
“Term”). Any further extension of the performance of Consultant’s
Services hereunder shall be by a written amendment to this Agreement, which
shall be signed by both Parties.
Termination. This
Agreement may be terminated for any reason by China Wi-Max with thirty (30) days
prior written notice to the other Party. This Agreement may be
terminated immediately by either Party upon prior written notice if the other
Party: (i) becomes insolvent; (ii) files a petition in bankruptcy; or (iii)
makes an assignment for the benefit of its creditors. If China Wi-Max
terminates this Agreement, it shall remain liable for payment of the
consideration stated in Section 3(a) below. Consultant acknowledges
that since this Agreement is temporary in nature, Consultant is not entitled to
any additional advance notice of termination as may be required, in the absence
of this provision, by any federal or state law.
Consideration.
Payment. In
consideration of the Services to be performed by Consultant for the Term of this
Agreement, and in exchange for a full and final release and waiver of all claims
of Consultant prior to the date of this Agreement concerning China Wi-Max, China
Wi-Max will: (a) pay Consultant the sum of Seventy-Five Thousand Dollars
($75,000.00); (ii) as of the date of this Agreement, grant Consultant that
number of shares of the common stock of China Wi-Max required to bring
Consultant’s total number of all shares owned to Five Hundred Thousand
(500,000); and (c) as of the date of this Agreement, grant Consultant options to
purchase additional shares of the common stock of China Wi-Max for $0.25 per
share, in an amount necessary to bring the total number of all options owned by
Consultant equal to Six Hundred Fifty Thousand (650,000). In
exchange, Consultant hereby releases and discharges for itself and its
predecessors, successors and assigns China Wi-Max, its owners, employees agents,
predecessors, successors and assigns of and from any and all actions, causes of
action, claims, demands, damages, costs, expenses, and all consequential damage
on account of, or in any way growing out of any contractual agreement,
employment or service relationship, or any other understanding, whether written
or oral, between Consultant and China Wi-Max which was entered into prior to the
date of this Agreement and release of all claims. Consultant
understands that this settlement is a compromise and that the foregoing payment
is not to be construed as an admission of liability on the part of China Wi-Max,
its owners, employees, agents, predecessors, successors and
assigns. This Section 3(a) contains the entire agreement between the
Parties regarding the release.
The shares and options referred to
above shall be delivered to Consultant within a reasonable time following the
execution of this Agreement by both Parties. Payment of the
Seventy-Five Thousand Dollars ($75,000.00) referred to above shall be made in
monthly installments in six (6) equal installments of Ten Thousand Dollars
($10,000) each and a final payment of Fifteen Thousand Dollars
($15,000). Payment shall commence after the end of the calendar month
following the calendar month in which this Agreement is executed.
Additional
Compensation. Consultant shall receive
additional compensation, in the form of a bonus, in the minimum amount of
one-half of one percent (.5%) of the net proceeds to China Wi-Max of any
offering of private investment in a public entity (“PIPE”) transaction which
closes during the Term or within six (6) months thereafter, which is directly
attributable to an opportunity originating from contacts proprietary to
Consultant, and could reasonably be shown not to have closed but for
Consultant’s principal efforts to obtain such PIPE financing. The
amount of compensation for a PIPE transaction as described herein may be
increased, at the discretion of the president and CEO, up to five percent (5%)
of such net proceeds, provided that such agreement is signed by both parties at
least thirty (30) days prior to the closing of such PIPE.
Expense
Reimbursement. Reasonable and necessary
expenses may be incurred by Consultant under this Agreement and charged to China
Wi-Max at Consultant’s cost, provided that Consultant obtains prior written
approval of the president and CEO of China Wi-Max for any such
expenses. First-class air travel will
not be reimbursed. Consultant acknowledges that any reimbursement of
expenses by China Wi-Max will be funds diverted from the mission of China Wi-Max
and accordingly, Consultant agrees to use reasonable efforts to adopt cost
saving measures. Consultant shall be responsible at its own expense
for all secretarial and clerical support services, office overhead, and for all
expenses not directly caused by performance of the Services under this
Agreement.
Cap on Fees and
Expenses. Notwithstanding anything stated in this Agreement or
the exhibits attached hereto, in no event shall China Wi-Max pay Consultant an
aggregate sum under this Agreement that exceeds the consideration specified in
Section 3(a), plus approved expenses under Section
3(c). Notwithstanding anything herein to the contrary, China Wi-Max
shall have no obligation to engage Consultant for any minimum number of
projects, days or hours.
Billing
Procedures. Copies of receipts for all fees and expenses shall
be submitted to the president and CEO of China Wi-Max for approval prior to
reimbursement. Additionally, effective upon any extension of the
Term, China Wi-Max shall have the right to request Consultant to submit monthly
invoices to China Wi-Max in a mutually acceptable format with individual
itemization that lists hours worked and a description of the work performed, as
well as any and all such other information requested by China Wi-Max as may be
reasonably necessary to determine Consultant’s compliance with this
Agreement.
Performance
Standard. All work will be performed to the complete
satisfaction of China Wi-Max.
Compliance/Confidentiality.
Compliance. Each
Party covenants that all of its activities pursuant to this Agreement shall
comply with all applicable laws, rules and regulations at the federal, state and
local levels. Each Party shall be responsible for obtaining all
licenses, permits and approvals, if any, which are necessary for the performance
of its duties hereunder. Consultant shall be responsible for
payment of all taxes arising out of consideration paid to Consultant in
accordance with this Agreement. Consultant shall be responsible for
issuing the Internal Revenue Service Form W-2 or Form 1099 to all individuals
receiving compensation from Consultant with China Wi-Max funds paid to
Consultant pursuant to this Agreement and shall be responsible for withholding
and paying all required federal and state payroll taxes with regard to such
compensation. Consultant shall comply at its own expense with all
federal, state and local laws (including, but not limited to, the Fair Labor
Standards Act and applicable employment discrimination
laws). Consultant shall not incur any liabilities or obligations of
any kind in the name of or on behalf of China Wi-Max other than those
specifically approved in writing by China Wi-Max.
Confidentiality. Consultant
understands and agrees that China Wi-Max is engaged in activities which make it
crucial for China Wi-Max to develop and retain trade secrets, contact and
customer lists, proprietary techniques, information regarding its employees,
contacts, clients and recipients of China Wi-Max Services (“Constituents”)
including confidential information and acknowledges that Consultant may develop
and learn such information in the course of its performance of work under this
Agreement. In light of these facts and in consideration of
Consultant’s engagement with China Wi-Max and China Wi-Max’s obligation to
compensate Consultant on the terms of this Agreement, Consultant covenants and
agrees with China Wi-Max that it shall protect all China Wi-Max Confidential
Information (as defined below) at all times, both during and after the Term, and
shall not disclose to any Person (as defined below) or otherwise use, except in
connection with its duties performed in accordance with this Agreement, any
China Wi-Max Confidential Information. For purposes of this
Agreement, “China Wi-Max Confidential Information” shall include any and all
technical, business and other information of China Wi-Max or any affiliate of
China Wi-Max which derives value, economic or otherwise, actual or potential,
from not being generally known to the public or other Persons who can obtain
value from its use or disclosure (other than the Party disclosing such
information and its affiliates), including without limitation, technical or
non-technical data, compositions, devices, methods, techniques, drawings,
inventions, processes, financial data, financial plans, product plans, client
and contact lists, lists of or information concerning actual or potential
contacts or suppliers, and information regarding the strategies, business plans
or operations, methods and plans of operation and marketing strategies of China
Wi-Max or any affiliate of China Wi-Max. China Wi-Max Confidential
Information includes information disclosed or owned by third parties (including
information of any affiliate of China Wi-Max) that is treated by China Wi-Max as
confidential or that China Wi-Max is required to treat as confidential, whether
such obligation is contractual or arises by operation of law. For
purposes of this Agreement, China Wi-Max Confidential Information shall not
include confidential business information that does not constitute a trade
secret under Section 134.90, Wis. Stats., as amended after the third
anniversary of the termination of this Agreement, but such information will
remain subject to any other limitation of use or disclosure under any other
agreement, applicable law or otherwise; provided, further, that
such obligation shall continue with respect to confidential business information
that constitutes a trade secret for so long as it remains a trade secret under
applicable law. China Wi-Max shall not be obligated to keep
confidential any oral or written disclosure made by Consultant to China Wi-Max
unless Consultant expressly designates in writing that such information is
confidential. As used in this Agreement, “Person” means any
individual, corporation, limited liability company or partnership, bank,
partnership, joint venture, association, joint-stock company, trust,
unincorporated organization or other entity.
Intellectual
Property.
Ownership of China Wi-Max
Intellectual Property. Consultant acknowledges and agrees that
all right, title, and interest to China Wi-Max’s trademarks, trade names, logos,
copyrighted works, information of any kind, digital assets, and any other China
Wi-Max intellectual property belongs to and remains solely the property of China
Wi-Max, any Consultant’s use thereof is subject to the terms of this
Agreement.
Work for Hire
Acknowledgment. Consultant acknowledges that all Consultant’s
work on and contribution to the documents, writings, flow charts, algorithms,
formulas, computer programs, designs, layouts and other works in any tangible
medium of expression, regardless of the form, as well as modifications and
improvements thereof, and copyrights and other rights therein (collectively
“Project Works”), prepared, conceived or developed by Consultant in connection
with the Services alone or jointly with others, are within the scope of this
Agreement, and are part of the Services and Consultant’s duties and
responsibilities hereunder. Consultant’s work on and contribution to
the Project Works will be rendered and made by Consultant for, at the
instigation of, and under the overall direction of, China Wi-Max, and are and at
all times shall be regarded as “work made for hire” as that term is used in the
United States Copyright Laws.
Inventions, Ideas and
Patents. Consultant
agrees to promptly disclose to China Wi-Max, any and all technical and other
information developed, conceived or made by Consultant or otherwise arising in
connection with the Services or Consultant’s relationship with China Wi-Max,
including any and all patents, patent rights, trade secrets, know-how,
inventions, ideas, designs, processes, methods, research and development, and
anticipated research and development, in each case in any way connected with
Consultant’s performance of the Services or related to China Wi-Max business
(collectively “Project Information”). Consultant hereby to agrees to
transfer, convey, assign, grant and deliver to China Wi-Max, all right, title
and interest in and to all Project Works and all Project Information, and
Consultant agrees to execute such further grants and assignments of all rights,
including all patent rights and copyrights, in the Project Works and Project
Information as China Wi-Max from time to time requests for the
purpose of establishing, evidencing, enforcing, registering or defending China
Wi-Max’s complete, exclusive, perpetual and worldwide ownership of all rights in
the Project Works and Project Information.
Use of
Data. Consultant represents and warrants that it has the
full and unrestricted right to disclose any information or data which Consultant
may present to China Wi-Max and that China Wi-Max shall have the full and
unrestricted right to use, reproduce, distribute or publish any information or
data prepared by Consultant pursuant to or in connection with this Agreement, as
China Wi-▇▇▇ ▇▇▇ ▇▇▇▇ appropriate.
Notice. All notices
given under this Agreement shall be in writing and shall be addressed to the
Parties at their respective addresses set forth below:
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If
to China Wi-Max:
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▇▇▇▇▇▇, President & CEO
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Fax
No.: (▇▇▇) ▇▇▇-▇▇▇▇
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If
to Consultant:
Consultant
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____________________________
Fax
No.: _____________________
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Either
Party may change its contact person, address or facsimile number for purposes of
this Agreement by giving the other Party written notice of such change, and any
notice thereafter required to be given shall be sent according to the new
information. Any notice shall be effective on the earlier of actual
receipt (via facsimile, personal delivery or overnight mail) or deemed receipt
if given or made by registered mail, which shall be the date fifteen (15)
calendar days after the same was posted (and in proving such it shall be
sufficient to prove that the envelope containing the same was properly addressed
and posted). If notice is by facsimile transmission, it shall be
deemed to have been received at the time of dispatch, unless such date of deemed
receipt is not a business day, in which case the date of deemed receipt shall be
the next such succeeding business day.
Independent
Contractors. Neither the making of this Agreement nor the
performance of its provisions shall be construed to constitute either of the
Parties as an agent, employee, partner, joint venturer or legal representative
of the other. Each Party acknowledges that it has no right or
authority to obligate or represent the other, nor to bind the other in any
manner whatsoever. All persons employed by either Party shall be
deemed to be employees of such Party only. Consultant shall at all
times be deemed to be an independent contractor. Some jurisdictions
may not permit the independent contractor provisions described by this
Section. For any such jurisdictions, it is the express intention of
Consultant and China Wi-Max to limit the contractual relationship between them
to the least amount permitted by the law of that jurisdiction.
Governing
Law/Dispute Resolution.
This
Agreement shall be governed by and construed in accordance with the laws of the
State of Wisconsin, without regard to the conflict of laws provisions thereof,
and the laws of that state shall govern all of the rights, remedies,
liabilities, powers and duties of the Parties under this Agreement and of any
arbitrator or mediator to whom any matter hereunder may be submitted for
resolution by the Parties hereto.
Any
controversy or claim arising out of or relating to this Agreement or breach
hereof, other than an allegation of a breach of the provisions relating to
confidentiality or intellectual property rights, shall be settled by arbitration
to be held in Milwaukee, Wisconsin in accordance with the commercial arbitration
rules of the American Arbitration Association. Additionally, any
decision or award shall be in writing, shall provide an explanation for all
conclusions of law and fact, and shall include the assessment of costs, expenses
and reasonable attorney fees. The award of the arbitrator shall be
binding and judgment upon the award rendered by the arbitrator may be entered in
any court having jurisdiction. The Parties may submit matters to
nonbinding mediation, prior to arbitration, if they so agree.
For
allegations arising out of or relating to confidentiality and intellectual
property rights, the state and federal courts located in Milwaukee,
Wisconsin shall
have exclusive jurisdiction for the purposes of adjudicating such
disputes. The Parties hereby waive all objections to venue and
personal jurisdiction in these forums for such disputes, and agree that service
of process may be made by certified mail addressed to the relevant Party’s
address given in Section 8 of this Agreement, with a copy to the attention of
the person signing below.
Indemnification.
Indemnification of China
Wi-Max. Consultant agrees to indemnify, defend, and hold China
Wi-Max, its employees, officers, directors, agents, servants, separately
incorporated divisions, affiliates, successors and assigns harmless from any and
all claims, actions, suits, proceedings, investigations, arbitrations,
assessments, losses, damages, liabilities, settlements, penalties, costs and
expenses (“Claims”), including reasonable attorneys’ fees and other expenses of
litigation, arising out of or resulting in any manner in whole or in part from
(i) Consultant’s breach of this Agreement, (ii) Consultant’s gross negligence or
intentional misconduct, including Claims for bodily injury, death or damage to
property, including loss of use, and (iii) material(s) developed for China
Wi-Max by Consultant hereunder or material(s) utilized by Consultant in
program(s) or material(s) created or used for China Wi-Max, including, but not
limited to, claims relating to patent, trade secrets, copyright or other
proprietary rights infringement.
Indemnification of
Consultant. China Wi-Max agrees to indemnify, defend, and hold
Consultant harmless from any Claim arising out of (i) Consultant’s use, in a
manner approved by China Wi-Max, of any intellectual property in which China
Wi-Max claims ownership or any information supplied by China Wi-Max; provided,
however, that before any such obligation to indemnify shall apply, Consultant
shall give China Wi-Max prompt notice of such Claim and China Wi-Max shall have
the right to exclusive control of the defense of any such Claim, and (ii) China
Wi-Max’s gross negligence or intentional misconduct, including Claims for bodily
injury, death or damage to property, including loss of use, except to the extent
injuries or damages are caused in whole or part by the negligence or intentional
misconduct of Consultant.
Right to Injunction; Right
to Costs and Attorney Fees. Consultant recognizes and agrees
that the covenants regarding confidentiality, intellectual property, use of
information, including Project Works and Project Information are reasonably
necessary to protect China Wi-Max’s legitimate interests and also are reasonable
with respect to Consultant’s interests. Consultant agrees that China
Wi-▇▇▇ ▇▇▇, in addition to other remedies, enjoin Consultant’s violation of the
covenants contained in this Agreement. Consultant agrees to pay China
Wi-Max the costs and reasonable attorneys’ fees.
Special
Damages. In no event shall either Party be liable for any
indirect, incidental, punitive or special damages, including lost profits, under
this Agreement.
Insurance. Consultant shall
maintain insurance to provide adequate protection to China Wi-Max as an
additional insured on Consultant’s policy from and against any and all Claims as
defined in Section 10(a), resulting from or in connection with any of the
circumstances described in Section 10 of this Agreement.
Conflicts
of Interest. Consultant
represents and warrants to China Wi-Max that Consultant will not enter into any
contract or agreement which will create a conflict of interest or which will
prevent Consultant from freely performing any of the provisions of the
Agreement.
Anti-Terrorism
Certification. Consultant hereby certifies that is does not
advocate, support, assist or engage in, and has not advocated, supported,
assisted or engaged in, any illegal or terrorist activity. Consultant
further certifies that it does not employ, support, assist or otherwise
associate with any entities, organizations or individuals that Consultant knows,
or has reason to know, support terrorism, or that appear on any official
terrorist lists published by the U.S. Government, the United Nations, the
European Union, or the Consultant’s government.
Modification. China
Wi-Max reserves the right to expand or contract the scope of Services under this
Agreement at any time without penalty.
Assignment. This
Agreement is being entered into in reliance upon and in consideration of the
qualifications of Consultant. China Wi-Max specifically contracts for
the professional services of Consultant, and Consultant may not assign or
delegate the performance of Services under this Agreement without the express
written consent of China Wi-Max, which may be withheld by China Wi-Max in its
sole discretion.
Successors and
Assigns. This Agreement shall be binding upon and shall inure
to the benefit of the Parties hereto and their respective heirs, executors,
administrators, personal representatives, successors and permitted
assigns.
Force
Majeure. Neither Consultant nor China Wi-Max shall be deemed
to be in default of any provision of this Agreement for failures in performance
resulting from acts or events beyond its reasonable control (a “Force Majeure
Event”) for the duration of the Force Majeure Event. Such Force
Majeure Events shall include but not be limited to, acts of God, civil or
military authority, terrorists, civil disturbance, war, strikes, fires, other
catastrophes, labor disputes, parts shortages, or other events beyond the
reasonable control of either Party.
Captions and
Headings. The captions and section headings used in this
Agreement are for convenience of reference only and shall not affect the
construction or interpretation of this Agreement or any of the provisions
thereof.
No Third Party
Beneficiaries. This Agreement inures to the benefit of
Consultant and China Wi-Max only, and no third party shall enjoy the benefits of
this Agreement or shall have any rights under it except as expressly provided in
this Agreement.
Non-
Exclusivity. This Agreement is not exclusive and China Wi-▇▇▇
▇▇▇ enter into similar agreements without restriction as to number, location or
application, and Consultant hereby waives any conflict of interest that may
arise by virtue of same.
No Waiver. Unless
expressly stated to the contrary elsewhere in this Agreement, none of the
conditions or provisions of this Agreement shall be held to have been waived by
any act or knowledge on the part of either Party, except by an instrument in
writing signed by a duly authorized officer or representative of such
Party. Further, the waiver by either Party of any right hereunder or
the failure to enforce at any time any provisions of this Agreement, or any
rights with respect thereto, shall not be deemed to be a waiver of any other
rights hereunder or any breach or failure of performance of the other
Party.
No Inference. No
provision of this Agreement shall be interpreted against any Party solely
because the Party or its legal representatives drafted the
provision.
Survival. Unless
expressly stated to the contrary elsewhere in this Agreement, the provisions
entitled Compliance/Confidentiality, Intellectual Property, Indemnification,
Governing Law/Dispute Resolution, No Inference and Severability shall survive
the termination or the expiration of this Agreement.
Severability. If
any provision of this Agreement is declared invalid or unenforceable by a court
having competent jurisdiction, it is mutually agreed that this Agreement shall
endure except for the part declared invalid or unenforceable by order of such
court. The Parties shall promptly consult and use their best efforts
to agree upon a valid and enforceable provision which shall be a reasonable
substitute for such invalid or unenforceable provision in light of the intent of
this Agreement.
Entire
Agreement/Counterparts. This Agreement (and any attachments
incorporated herein) supersedes all prior agreements and understandings, written
or oral. 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.
IN
WITNESS WHEREOF, with the intent to be legally bound, the Parties have caused
this Agreement to be duly executed and entered into as of the Effective Date
above.
| China Wi-Max COMMUNICATIONS, INC. | CONSULTANT | ||||
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| ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ #▇▇▇ | [street address] _________________ | ||||
| ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ | [city, state, zip] _________________ | ||||
| Fax No. (▇▇▇) ▇▇▇-▇▇▇▇ | [fax no.] _______________________ | ||||