EXHIBIT 10.3
CONSULTING AGREEMENT
This Agreement (the "Agreement") is dated January 9,2002, and is entered into by
and between DIMENSIONAL VISIONS INCORPORATED. A DELAWARE CORPORATION
(hereinafter "DVUI" or "Client") and XXXXX XXXXXX, AN INDIVIDUAL (hereinafter
referred to as "Consultant").
1. CONDITIONS. UPON EXECUTION OF THIS AGREEMENT, CLIENT AGREES TO FULLY
COOPERATE WITH CONSULTANT IN CARRYING OUT THE PURPOSES OF THIS AGREEMENT, KEEP
CONSULTANT INFORMED OF ANY DEVELOPMENTS OF IMPORTANCE PERTAINING TO CLIENT'S
BUSINESS AND ABIDE BY THIS AGREEMENT IN ITS ENTIRETY.
2. SCOPE AND DUTIES. DURING THE TERM OF THIS AGREEMENT, CONSULTANT WILL PERFORM
THE FOLLOWING SERVICES FOR CLIENT:
2.1 ADVICE AND COUNSEL. CONSULTANTS WILL PROVIDE ADVICE AND COUNSEL
REGARDING CLIENT'S STRATEGIC BUSINESS PLANS, POTENTIAL BUSINESS STRATEGIC
PARTNERING, CORPORATE PLANNING AND OR OTHER GENERAL BUSINESS CONSULTING NEEDS AS
EXPRESSED BY CLIENT.
2.2 ADDITIONAL DUTIES. CLIENT AND CONSULTANTS SHALL MUTUALLY AGREE, IN
WRITING, FOR ANY ADDITIONAL DUTIES THAT CONSULTANTS MAY PROVIDE TO CLIENT FOR
COMPENSATION PAID OR PAYABLE BY CLIENT UNDER THIS AGREEMENT. ALTHOUGH THERE IS
NO REQUIREMENT TO DO SO, SUCH ADDITIONAL AGREEMENT(S) MAY BE ATTACHED HERETO AND
MADE A PART HEREOF BY WRITTEN AMENDMENTS TO BE LISTED AS "EXHIBITS" BEGINNING
WITH "EXHIBIT A" AND INITIALED BY BOTH PARTIES.
2.3 STANDARD OF PERFORMANCE. CONSULTANTS SHALL DEVOTE SUCH TIME AND EFFORTS
TO THE AFFAIRS OF THE CLIENT AS IS REASONABLY NECESSARY TO RENDER THE SERVICES
CONTEMPLATED BY THIS AGREEMENT. ANY WORK OR TASK OF CONSULTANTS PROVIDED FOR
HEREIN WHICH REQUIRES CLIENT TO PROVIDE CERTAIN INFORMATION TO ASSIST
CONSULTANTS IN COMPLETION OF THE WORK SHALL BE EXCUSED (WITHOUT EFFECT UPON ANY
OBLIGATION OF CLIENT) UNTIL SUCH TIME AS CLIENT HAS FULLY PROVIDED ALL
INFORMATION AND COOPERATION NECESSARY FOR CONSULTANTS TO COMPLETE THE WORK. THE
SERVICES OF CONSULTANTS SHALL NOT INCLUDE THE RENDERING OF ANY LEGAL OPINIONS OR
THE PERFORMANCE OF ANY WORK THAT IS IN THE ORDINARY PURVIEW OF A CERTIFIED
PUBLIC ACCOUNTANT, OR OTHER LICENSED PROFESSIONAL. CONSULTANTS CANNOT GUARANTEE
RESULTS ON BEHALF OF CLIENT, BUT SHALL USE COMMERCIALLY REASONABLE EFFORTS IN
PROVIDING THE SERVICES LISTED ABOVE. IF AN INTEREST IS COMMUNICATED TO
CONSULTANTS REGARDING SATISFYING ALL OR PART OF CLIENT'S BUSINESS AND CORPORATE
STRATEGIC PLANNING NEEDS, CONSULTANTS SHALL NOTIFY CLIENT AND ADVISE IT AS TO
THE SOURCE OF SUCH INTEREST AND ANY TERMS AND CONDITIONS OF SUCH INTEREST.
3. COMPENSATION TO CONSULTANT.
3.1 ISSUANCE OF SHARES FOR ENTERING INTO AGREEMENT. AS CONSIDERATION FOR
CONSULTANTS ENTERING INTO THIS AGREEMENT, CLIENT AGREES TO CAUSE 500,000 SHARES
OF ITS COMMON STOCK, PAR VALUE $.001 PER SHARE, TO BE IMMEDIATELY ISSUED TO
XXXXX XXXXXX. WHEN ISSUED, SAID SHARES SHALL BE FREE TRADING SHARES, REGISTERED
WITH THE U.S. SECURITIES AND EXCHANGE COMMISSION ON ITS FORM S-8 OR SIMILAR
REGISTRATION. THE REGISTRATION AND ISSUANCE OF SAID SHARES SHALL TAKE PLACE BY
NO LATER THAN 5 DAYS FOLLOWING THE EXECUTION AND DELIVERY OF THIS AGREEMENT, AND
ALL COSTS IN CONNECTION THEREWITH SHALL BE BORNE BY CLIENT.
NOTE: CONSULTANTS SHALL HAVE NO OBLIGATION TO PERFORM ANY DUTIES PROVIDED
FOR HEREIN IF PAYMENT IS NOT RECEIVED BY CONSULTANTS WITHIN 15 DAYS OF MUTUAL
EXECUTION OF THIS AGREEMENT BY THE PARTIES. IN ADDITION, CONSULTANTS'S
OBLIGATIONS UNDER THIS AGREEMENT SHALL BE SUSPENDED IF ANY PAYMENT OWING
HEREUNDER IS MORE THAN FIFTEEN (15) DAYS DELINQUENT. FURTHERMORE, THE RECEIPT OF
ANY FEES DUE TO CONSULTANTS UPON EXECUTION OF THIS AGREEMENT ARE NOT CONTINGENT
UPON ANY PRIOR PERFORMANCE OF ANY DUTIES WHATSOEVER DESCRIBED WITHIN THIS
AGREEMENT.
3.2 EXPENSES. CLIENT SHALL REIMBURSE CONSULTANTS FOR REASONABLE EXPENSES
INCURRED IN PERFORMING ITS DUTIES PURSUANT TO THIS AGREEMENT (INCLUDING
PRINTING, POSTAGE, EXPRESS MAIL, PHOTO REPRODUCTION, TRAVEL, LODGING, AND LONG
DISTANCE TELEPHONE AND FACSIMILE CHARGES); PROVIDED, HOWEVER, THAT CONSULTANTS
MUST RECEIVE PRIOR WRITTEN APPROVAL FROM CLIENT FOR ANY EXPENSES OVER $500. SUCH
REIMBURSEMENT SHALL BE PAYABLE WITHIN SEVEN DAYS AFTER CLIENT'S RECEIPT OF
CONSULTANTS INVOICE FOR SAME.
3.3 ADDITIONAL FEES. CLIENT AND CONSULTANTS SHALL MUTUALLY AGREE UPON ANY
ADDITIONAL FEES THAT CLIENT MAY PAY IN THE FUTURE FOR SERVICES RENDERED BY
CONSULTANTS UNDER THIS AGREEMENT. SUCH ADDITIONAL AGREEMENT(S) MAY, ALTHOUGH
THERE IS NO REQUIREMENT TO DO SO, BE ATTACHED HERETO AND MADE A PART HEREOF AS
EXHIBITS BEGINNING WITH EXHIBIT A.
4. INDEMNIFICATION. The Client agrees to indemnify and hold harmless
Consultants, each of their employees, agents, affiliates, other licensees, and
shareholders against any and all liability, loss and costs, expenses or damages,
including but not limited to, any and all expenses whatsoever reasonably
incurred in investigating, preparing or defending against any litigation,
commenced or threatened, or any claim whatsoever or howsoever caused by reason
of any injury (whether to body, property, personal or business character or
reputation) sustained by any person or to any person or property, arising out of
any act, failure to act, neglect, any untrue or alleged untrue statement of a
material fact or failure to state a material fact which thereby makes a
statement false or misleading, or any breach of any material representation,
warranty or covenant by Client or any of its agents, employees, or other
representatives. Consultants agrees to indemnify and hold harmless the Client,
each of its officers, directors, employees, agents, and shareholders against any
and all liability, loss and costs, expenses or damages, including but not
limited to, any and all expenses whatsoever reasonably incurred in
investigating, preparing or defending against any litigation, commenced or
threatened, or any claim whatsoever or howsoever caused by reason of any injury
(whether to body, property, personal or business character or reputation)
sustained by any person or to any person or property, arising out of any act,
failure to act, neglect, any untrue or alleged untrue statement of a material
fact or failure to state a material fact which thereby makes a statement false
or misleading, or any breach of any material representation, warranty or
covenant by Consultants or any of its agents, employees, or other
representatives. Nothing herein is intended to nor shall it relieve either party
from liability for its own willful act, omission or negligence. All remedies
provided by law, or in equity shall be cumulative and not in the alternative.
5. CONFIDENTIALITY.
5.1 CONSULTANTS AND CLIENT EACH AGREE TO KEEP CONFIDENTIAL AND PROVIDE
REASONABLE SECURITY MEASURES TO KEEP CONFIDENTIAL INFORMATION WHERE RELEASE MAY
BE DETRIMENTAL TO THEIR RESPECTIVE BUSINESS INTERESTS. CONSULTANTS AND CLIENT
SHALL EACH REQUIRE THEIR EMPLOYEES, AGENTS, AFFILIATES, OTHER LICENSEES, AND
OTHERS WHO WILL HAVE ACCESS TO THE INFORMATION THROUGH CONSULTANTS AND CLIENT
RESPECTIVELY, TO FIRST ENTER APPROPRIATE NON-DISCLOSURE AGREEMENTS REQUIRING THE
CONFIDENTIALITY CONTEMPLATED BY THIS AGREEMENT IN PERPETUITY.
5.2 CONSULTANTS WILL NOT, EITHER DURING THEIR ENGAGEMENT BY THE CLIENT
PURSUANT TO THIS AGREEMENT OR AT ANY TIME THEREAFTER, DISCLOSE, USE OR MAKE
KNOWN FOR THEIR OR ANOTHER'S BENEFIT ANY CONFIDENTIAL INFORMATION, KNOWLEDGE, OR
DATA OF THE CLIENT OR ANY OF ITS AFFILIATES IN ANY WAY ACQUIRED OR USED BY
CONSULTANTS DURING ITS ENGAGEMENT BY THE CLIENT. CONFIDENTIAL INFORMATION,
KNOWLEDGE OR DATA OF THE CLIENT AND ITS AFFILIATES SHALL NOT INCLUDE ANY
INFORMATION THAT IS, OR BECOMES GENERALLY AVAILABLE TO THE PUBLIC OTHER THAN AS
A RESULT OF A DISCLOSURE BY CONSULTANTS OR ITS REPRESENTATIVES.
6. MISCELLANEOUS PROVISIONS.
6.1 AMENDMENT AND MODIFICATION. THIS AGREEMENT MAY BE AMENDED, MODIFIED AND
SUPPLEMENTED ONLY BY WRITTEN AGREEMENT OF CONSULTANTS AND CLIENT.
6.2 ASSIGNMENT. THIS AGREEMENT AND ALL OF THE PROVISIONS HEREOF SHALL BE
BINDING UPON AND INURE TO THE BENEFIT OF THE PARTIES HERETO AND THEIR RESPECTIVE
SUCCESSORS AND PERMITTED ASSIGNS. THE OBLIGATIONS OF EITHER PARTY HEREUNDER
CANNOT BE ASSIGNED WITHOUT THE EXPRESS WRITTEN CONSENT OF THE OTHER PARTY.
6.3 GOVERNING LAW; VENUE. THIS AGREEMENT AND THE LEGAL RELATIONS AMONG THE
PARTIES HERETO SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF
THE STATE OF CALIFORNIA, WITHOUT REGARD TO ITS CONFLICT OF LAW DOCTRINE. CLIENT
AND CONSULTANTS AGREE THAT IF ANY ACTION IS INSTITUTED TO ENFORCE OR INTERPRET
ANY PROVISION OF THIS AGREEMENT, THE JURISDICTION AND VENUE SHALL BE IRVINE,
ORANGE COUNTY, CALIFORNIA.
6.4 ATTORNEYS' FEES AND COSTS. IF ANY ACTION IS NECESSARY TO ENFORCE AND
COLLECT UPON THE TERMS OF THIS AGREEMENT, THE PREVAILING PARTY SHALL BE ENTITLED
TO REASONABLE ATTORNEYS' FEES AND COSTS, IN ADDITION TO ANY OTHER RELIEF TO
WHICH THAT PARTY MAY BE ENTITLED. THIS PROVISION SHALL BE CONSTRUED AS
APPLICABLE TO THE ENTIRE AGREEMENT.
6.5 SURVIVABILITY. IF ANY PART OF THIS AGREEMENT IS FOUND, OR DEEMED BY A
COURT OF COMPETENT JURISDICTION, TO BE INVALID OR UNENFORCEABLE, THAT PART SHALL
BE SEVERABLE FROM THE REMAINDER OF THE AGREEMENT.
6.6 COUNTERPARTS. THIS AGREEMENT MAY BE EXECUTED IN SEVERAL COUNTERPARTS
AND IT SHALL NOT BE NECESSARY FOR EACH PARTY TO EXECUTE EACH OF SUCH
COUNTERPARTS, BUT WHEN ALL OF THE PARTIES HAVE EXECUTED AND DELIVERED ONE OF
SUCH COUNTERPARTS, THE COUNTERPARTS, WHEN TAKEN TOGETHER, SHALL BE DEEMED TO
CONSTITUTE ONE AND THE SAME INSTRUMENT, ENFORCEABLE AGAINST EACH PARTY IN
ACCORDANCE WITH ITS TERMS.
6.7 FACSIMILE SIGNATURES. THE PARTIES HERETO AGREE THAT THIS AGREEMENT MAY
BE EXECUTED BY FACSIMILE SIGNATURES AND SUCH SIGNATURES SHALL BE DEEMED
ORIGINALS. THE PARTIES FURTHER AGREE THAT WITHIN TEN DAYS FOLLOWING THE
EXECUTION OF THIS AGREEMENT, THEY SHALL EXCHANGE ORIGINAL SIGNATURE PAGES.
7. ARBITRATION. ALL DISPUTES, CONTROVERSIES, OR DIFFERENCES BETWEEN CLIENT,
CONSULTANTS OR ANY OF THEIR OFFICERS, DIRECTORS, LEGAL REPRESENTATIVES,
ATTORNEYS, ACCOUNTANTS, AGENTS OR EMPLOYEES, OR ANY CUSTOMER OR OTHER PERSON OR
ENTITY, ARISING OUT OF, IN CONNECTION WITH OR AS A RESULT OF THIS AGREEMENT,
SHALL BE RESOLVED THROUGH ARBITRATION RATHER THAN THROUGH LITIGATION. WITH
RESPECT TO THE ARBITRATION OF ANY DISPUTE, THE UNDERSIGNED HEREBY ACKNOWLEDGE
AND AGREE THAT:
A. ARBITRATION IS FINAL AND BINDING ON THE PARTIES;
B. THE PARTIES ARE WAIVING THEIR RIGHT TO SEEK REMEDY IN COURT, INCLUDING
THEIR RIGHT TO JURY TRIAL;
C. PRE-ARBITRATION DISCOVERY IS GENERALLY MORE LIMITED AND DIFFERENT FROM
COURT PROCEEDING;
D. THE ARBITRATOR'S AWARD IS NOT REQUIRED TO INCLUDE FACTUAL FINDINGS OR
LEGAL REASONING AND ANY PARTY'S RIGHT OF APPEAL OR TO SEEK MODIFICATION OF
RULING BY THE ARBITRATORS IS STRICTLY LIMITED;
E. THIS ARBITRATION PROVISION IS SPECIFICALLY INTENDED TO INCLUDE ANY AND
ALL STATUTORY CLAIMS WHICH MIGHT BE ASSERTED BY ANY PARTY;
F. EACH PARTY HEREBY AGREES TO SUBMIT THE DISPUTE FOR RESOLUTION TO THE
AMERICAN ARBITRATION ASSOCIATION, IN IRVINE, ORANGE COUNTY, CALIFORNIA WITHIN
FIVE (5) DAYS AFTER RECEIVING A WRITTEN REQUEST TO DO SO FROM THE OTHER PARTY;
G. IF EITHER PARTY FAILS TO SUBMIT THE DISPUTE TO ARBITRATION ON REQUEST,
THEN THE REQUESTING PARTY MAY COMMENCE AN ARBITRATION PROCEEDING, BUT IS UNDER
NO OBLIGATION TO DO SO;
H. ANY HEARING SCHEDULED AFTER AN ARBITRATION IS INITIATED SHALL TAKE PLACE
IN IRVINE, ORANGE COUNTY, CALIFORNIA;
I. IF EITHER PARTY SHALL INSTITUTE ANY COURT PROCEEDING IN AN EFFORT TO
RESIST ARBITRATION AND BE UNSUCCESSFUL IN RESISTING ARBITRATION OR SHALL
UNSUCCESSFULLY CONTEST THE JURISDICTION OF ANY ARBITRATION FORUM LOCATED IN
IRVINE, ORANGE COUNTY, CALIFORNIA, OVER ANY MATTER WHICH IS THE SUBJECT OF THIS
AGREEMENT, THE PREVAILING PARTY SHALL BE ENTITLED TO RECOVER FROM THE LOSING
PARTY ITS LEGAL FEES AND ANY OUT-OF-POCKET EXPENSES INCURRED IN CONNECTION WITH
THE DEFENSE OF SUCH LEGAL PROCEEDING OR ITS EFFORTS TO ENFORCE ITS RIGHTS TO
ARBITRATION AS PROVIDED FOR HEREIN;
J. THE PARTIES SHALL ACCEPT THE DECISION OF ANY AWARD AS BEING FINAL AND
CONCLUSIVE AND AGREE TO ABIDE THEREBY;
K. ANY DECISION MAY BE FILED WITH ANY COURT AS A BASIS FOR JUDGMENT AND
EXECUTION FOR COLLECTION; AND
L. ANY ARBITRATION PROCEEDING PURSUANT TO THIS SECTION SHALL BE HELD BEFORE
A PANEL OF THREE ARBITRATORS.
8. TERM. THIS AGREEMENT IS AN AGREEMENT FOR THE TERM OF APPROXIMATELY THREE (03)
MONTHS ENDING APRIL 08, 2002.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed, all as of the day and year first above written.
DIMENSIONAL VISIONS INCORPORATED (DVUI)
Print Name: Xxxx X. XxXxxxxxx
Sign Name: /s/ Xxxx X. XxXxxxxxx
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Title: Chairman, CEO, President
CONSULTANT
Print Name: Xxxxx Xxxxxx
Sign Name: /s/ Xxxxx Xxxxxx
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Date: 1-9-2001
