CONSULTING AGREEMENT
This Consulting Agreement ("Agreement") made on this 1st day of January,
2000, by and between ZiaSun Technologies, Inc., a Nevada corporation, located at
000 Xxxxxxx Xxxxxx, Xxxxx 000, Xxxxxx Xxxxx, Xxxxxxxxxx ("Client"), and
Netgenesis Strategic Internet Marketing, Ltd., located at 000-0000 Xxxxxxxx
Xxxxxx, Xxxxxxxxx, XX X0X 0X0, an entity organized under the laws of British
Columbia ("Consultant"), is made in consideration of the mutual promises made
herein and set forth as follows:
ARTICLE 1. TERM OF CONTRACT
1.1 This Agreement will become effective on the date first stated above and
will continue in effect until the services provided for in this Agreement have
been performed, or until terminated as provided in Article 6, below.
ARTICLE 2. SERVICES TO BE PERFORMED BY CONSULTANT
2.1 Services: Consultant agrees to perform the following consulting
services to Client:
2.1.1 Strategic business development consultation.
2.1.2 Advice and counsel concerning Client's press releases, marketing
strategies, investor relations, advertising, and financial websites.
2.1.3 Consultant shall assist Client in the selection and management
of qualified subcontractors, by performing the following tasks: (1)
identify qualified subcontractors; (2) provide subcontractors with a
detailed description of the scope of work to be performed on behalf of
Client; (3) prepare a proposal for Client's approval with recommended
subcontractors and overall project cost; (4) oversee work performed by such
subcontractors; and, (7) oversee the implementation of programs or
procedures developed by such subcontractors.
2.1.4 Subject to the direction and control of Client, Consultant shall
assist in directing and managing Client's employees responsible for
investors' relations.
2.2 Delivery Schedule: Within ten (10) days following execution of this
Agreement and receipt of the payment due upon execution, Consultant shall
deliver a draft of the Investor's Report to Client for review and approval. All
other services shall commence immediately upon execution of this Agreement and
receipt of the payment due upon execution, and shall continue throughout the
term of this Agreement.
2.3 Method of Performing Services: Consultant will determine the method,
details, and means of performing the above-described services. Consultant may
perform the Services under this Agreement at any suitable time and location of
Consultant's choice.
2.4 Status of Consultant: Consultant is and shall remain an independent
contractor. Consultant and any agents or employees of Consultant shall not act
as an officer or employee of Client. Client assumes no liability for
Consultant's actions in performance, or responsibility for taxes, funds,
payments or other commitments, implied or expressed, by or for Consultant.
Consultant has no authority to assume or create any commitment or obligation on
behalf of, or to bind, Client in any respect.
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2.5 Use of Employees or Subcontractors: Upon Client's prior written
approval if any additional cost to Client will be incurred, Consultant may use
any employees or subcontractors as Consultant deems necessary to perform the
services required of Consultant by this Agreement. Client acknowledges and
agrees that Consultant may realize a commission on the use of such employees and
subcontractors for the performance of additional services as described in
paragraph 3.4, below, and such commission shall be an included cost in any
proposal submitted to Client by Consultant. Notwithstanding the foregoing, any
proposal prepared by Consultant which includes consulting fees to be charged by
Consultant to Client shall be clearly identified and quoted as such.
ARTICLE 3. COMPENSATION
3.1 Retainer Fee: Client shall pay an annual retainer fee, which shall be
due and payable, as follows ("Retainer Fee"):
3.1.1 Year One: One hundred twenty thousand and no/100 dollars
($120,000.00):
$30,000.00 Upon execution of this Agreement.
$7,500.00 On the first day of each month of the first twelve
months of this Agreement, commencing January 1, 2000.
3.1.2 Year Two and Beyond: Sixty thousand and no/100 dollars
($60,000.00):
$5,000.00 On the first day of each month of this Agreement,
commencing January 1, 2001.
3.2 Share Fee: As additional compensation, within fifteen (15) days after
execution of this Agreement, the Client shall issue share certificates to
Consultant representing thirty thousand (30,000) shares of the Client's common
stock ("Share Fee"). Consultant acknowledges and understands said stock is
unregistered, restricted stock, as more fully described in the Memorandum from
Xxxxxx X. Xxxxxxx, Esq., to ZiaSun Technologies, Inc., dated February 17, 2000,
and the SEC Release No. 33-7390, dated February 20, 1997, copies of which are
attached hereto as Exhibit "A" and made a part hereof by this reference.
Consultant agrees to fully comply with the requirements set forth in Exhibit
"A," as amended from time to time, and acknowledges that any certificate(s) for
shares of the Client issued pursuant to this paragraph will contain the
following restrictive legend:
THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED WITH
THE SECURITIES AND EXCHANGE COMMISSION UNDER THE SECURITIES ACT OF 1933, AS
AMENDED. THE SHARES HAVE BEEN ACQUIRED FOR INVESTMENT AND MAY NOT BE SOLD,
TRANSFERRED, ASSIGNED, PLEDGED OR HYPOTHECATED IN THE ABSENCE OF AN
EFFECTIVE REGISTRATION FOR THESE SHARES UNDER SUCH ACT OR AN OPINION OF THE
COMPANY'S COUNSEL THAT SUCH REGISTRATION IS NOT REQUIRED UNDER SAID ACT.
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3.2 Invoicing and Payment Terms: Consultant shall submit to Client an
invoice for the Retainer Fee and all additional services rendered on or before
the first of each month. Client agrees to pay the net amount due to Consultant
within ten (10) days after receipt of the statement.
3.3 Payment of Expenses: Consultant shall be responsible for its normal and
customary overhead business expenses incurred in performing services under this
Agreement, including without limitation, telephone, facsimile, postage,
photocopying, supplies, rent, employee salaries and benefits, insurance, and
travel expenses. Consultant shall obtain the prior written approval of Client
for any expenses to be billed to Client in addition to the Retainer Fee set
forth above.
3.4 Additional Services: Upon submission by Consultant to Client, and
Client's prior written approval, of a detailed proposal which specifically
outlines cost, deliverables, and date(s) of performance, Consultant shall
perform the following additional services, the cost of which shall be in
addition to the Retainer Fee and billed on a cost-plus basis:
o Lead generation campaign.
o Shareholders/Investor communications.
o Client Investor Fact Sheet sent to Consultant's exclusive
database of 14,000+ investors.
o Writing and scheduling of all Client's press releases.
o Distribute Client Fact Sheet to Consultant's broker network.
o Financial Community Investor Relations Support System (establish
national network of investors, stockbrokers, analysts, and
traders who are both informed and interested in the Client's
company).
Client's approval shall be evidenced by execution of Consultant's proposal by
both parties, and shall be attached to this Agreement. Upon execution and
attachment, such proposal(s) shall be incorporated herein by this reference and
made a part of this Agreement.
3.5 M&A Fee: In the event Consultant is the procuring cause (i.e., the
first communication between Client and the third party occurs solely as the
result of Consultant's introduction) of a successful merger, acquisition, or
receipt of financing by Client, Consultant shall be paid additional compensation
in an amount equal to three percent (3%) of the total merger/acquisition value,
or five percent (5%) of the total amount of financing secured on behalf of the
Client ("M&A Fee"). The M&A Fee shall be due and payable to Consultant within
fifteen (15) days following the close of the applicable transaction.
ARTICLE 4. OBLIGATIONS OF CONSULTANT
4.1 Non-Exclusive Relationship: Client acknowledges and agrees that the
relationship with Consultant is non-exclusive and Consultant may represent,
perform services for, and contract with, as many additional clients, persons or
companies as Consultant in Consultant's sole discretion sees fit.
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4.2 Consultant's Qualifications: Consultant represents and warrants that
Consultant has the qualifications and skills necessary to perform the services
under this Agreement in a competent and professional manner, and is able to
fulfill the requirements of this Agreement. Consultant shall comply with all
applicable federal, state and local laws in the performance of its obligations
hereunder, and all materials used by Consultant in fulfilling its obligations
under this Agreement shall not infringe upon any third party copyright, patent,
trade secret or other proprietary right. Consultant acknowledges and agrees that
failure to perform all the services required under this agreement constitutes a
material breach of the Agreement.
4.3 Availability of Xxxx Xxxxxx: Consultant acknowledges and agrees that a
material consideration of this Agreement is that Xxxx Xxxxxx shall be in charge
of all services rendered to Client by Consultant under this Agreement, and that
the unavailability of Xxxx Xxxxxx to oversee the performance of such services
shall constitute a material breach of this Agreement.
4.4 Indemnity: Consultant agrees to indemnify, defend, and hold Client free
and harmless from all claims, demands, losses, costs, expenses, obligations,
liabilities, damages, recoveries, and deficiencies, including interest,
penalties, attorneys' fees, and costs, including without limitation expert
witnesses' fees, that Client may incur as a result of a breach by Consultant of
any representation or agreement contained in this Agreement.
4.5 Assignment: Neither this Agreement nor any duties or obligations under
this Agreement may be assigned by Consultant without the prior written consent
of Client.
ARTICLE 5. OBLIGATIONS OF CLIENT
5.1 Compliance with Requests: Client agrees to comply with all reasonable
requests of Consultant necessary to the performance of Consultant's duties under
this Agreement.
5.2 Place of Work: Client agrees to furnish an office for Xxxx Xxxxxx on
Client's premises for use by said representative of Consultant from time-to-time
when visiting the San Diego area to facilitate his performance of the
above-described services.
5.3 Company Provided Information: Client assumes full responsibility for
the accuracy and completeness of all information provided to Consultant.
5.4 Indemnity: Client agrees to indemnify, defend, and hold Consultant free
and harmless from all claims, demands, losses, costs, expenses, obligations,
liabilities, damages, recoveries, and deficiencies, including interest,
penalties, attorneys' fees, and costs, including without limitation expert
witnesses' fees, that Consultant may incur as a result of any information
provided to Consultant by Client under this Agreement.
ARTICLE 6. TERMINATION OF AGREEMENT
6.1 Termination on Notice: Notwithstanding any other provision of this
Agreement, either party may terminate this Agreement at any time by giving
thirty (30) days written notice to the other party. Unless otherwise terminated
as provided in this Agreement, this Agreement will continue in force until the
Services provided for in this Agreement have been fully and completely
performed.
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6.2 Termination on Occurrence of Stated Events: This Agreement will
terminate automatically on the occurrence of any of the following events:
6.2.1 Unavailability of Xxxx Xxxxxx to manage and oversee all services
rendered to Client by Consultant under this Agreement.
6.2.2 Bankruptcy or insolvency of either party.
6.2.3 Dissolution of either party.
6.2.4 Assignment of this Agreement by Consultant without the prior
written consent of Client.
6.3 Termination for Default: If either party defaults in the performance of
this Agreement or materially breaches any of its provisions, the non-breaching
party may terminate this Agreement by giving written notification to the
breaching party. Termination will take effect immediately on receipt of notice
by the breaching party or five (5) days after mailing of notice, whichever
occurs first. For the purposes of this paragraph, material breach of this
Agreement includes, but is not limited to, the following:
6.3.1 Consultant's failure to perform the services specified in this
Agreement.
6.3.2 Consultant's material breach of any representation or agreement
contained in Article 4, above.
6.3.3 Client's material breach of any representation or agreement
contained in Article 5, above.
6.3.4 Client's failure to pay Consultant any compensation due within
thirty (30) days after written demand for payment.
ARTICLE 7. CLIENT INFORMATION
7.1 Nondisclosure/Nonuse of Client Information: Consultant agrees that all
information provided by Client to Consultant under this Agreement shall not be
disclosed or used by Consultant for any purpose other than Consultant's
performance under this Agreement.
7.2 Confidential Information: Any written, printed, graphic, or
electronically or magnetically recorded information furnished by Client for
Consultant's use is and shall remain the sole property of Client. This
proprietary information includes, but is not limited to, investor lists,
marketing information, planning, drawings, specifications, and information
concerning Client's employees, products, services, prices, and operations.
Consultant will keep this confidential information in the strictest confidence,
and will not disclose it by any means to any person except with Consultant's
prior written approval, and only to the extent necessary to perform the services
under this Agreement. This prohibition also applies to Consultant's employees,
agents, and subcontractors. On termination of this Agreement or request by
Client, Consultant will return within two (2) days any confidential information
in Consultant's possession to Client.
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ARTICLE 8. GENERAL PROVISIONS
8.1 Notices: Any notices to be given by either party to the other shall be
in writing and may be transmitted either by personal delivery or by mail,
registered or certified, postage prepaid with return receipt requested. Mailed
notices shall be addressed to the parties at the addresses appearing in the
introductory paragraph of this Agreement, but each party may change that address
by written notice in accordance with this section. Notices delivered personally
shall be deemed communicated as of the date of actual receipt. Mailed notices
shall be deemed communicated as of five (5) days after the date of mailing.
8.2 Attorneys' Fees and Costs: If this Agreement gives rise to a lawsuit or
other legal proceeding between any of the parties hereto, the prevailing party
shall be entitled to recover court costs, necessary disbursements (including
expert witnesses' fees) and reasonable attorneys' fees, in addition to any other
relief such party may be entitled.
8.3 Entire Agreement: This Agreement supersedes any and all other
agreements, either oral or in writing, between the parties hereto with respect
to the services provided by Consultant to Client under this Agreement, and
contains all of the covenants and agreements between the parties with respect to
this Agreement in any manner whatsoever. Each party to this Agreement
acknowledges that no representations, inducements, promises, or agreements,
orally or otherwise, have been made by any party, or anyone acting on behalf of
any party, which are not embodied herein, and that no other agreement,
statement, or promise not contained in this Agreement shall be valid or binding.
8.4 Modifications: Any modification of this Agreement will be effective
only if it is in writing signed by the party to be charged.
8.5 Effect of Waiver: The failure of either party to insist on strict
compliance with any of the terms, covenants, or conditions of this Agreement by
the other party shall not be deemed a waiver of that term, covenant, or
condition, nor shall any waiver or relinquishment of any right or power at any
one time or times be deemed a waiver or relinquishment of that right or power
for all or any other times.
8.6 Partial Invalidity: If any provision in this Agreement is held by a
court of competent jurisdiction to be invalid, void, or unenforceable, the
remaining provisions shall nevertheless continue in full force without being
impaired or invalidated in any way.
8.7 Law Governing Agreement: This Agreement shall be governed by and
construed in accordance with the laws of the State of California.
8.8 Jurisdiction/Venue: Jurisdiction and venue for any dispute arising out
of this Agreement shall be exclusively in the County of San Diego, State of
California.
8.8 Construction: If any construction is to be made of any provision of
this Agreement, it shall not be construed against either party on the ground
such party was the drafter of the Agreement or any particular provision.
8.9 Time: Time is of the essence in this Agreement.
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8.10 Corporate Authorization: If any signatory of this Agreement is a
corporation, said signatory represents and warrants that this Agreement and the
undersigned's execution of this Agreement have been duly authorized and approved
by the corporation's Board of Directors. The undersigned officers and
representatives of the corporation(s) executing this Agreement on behalf of the
corporation(s) represent and warrant they are officers of the corporation(s)
with full authority to execute this Agreement on behalf of the corporation(s).
IN WITNESS WHEREOF, the undersigned have executed this Agreement, effective
as of the date first above written.
CLIENT: CONSULTANT:
ZiaSun Technologies, Inc. Netgenesis Strategic Internet
Marketing, Ltd.
/S/ D. Xxxxx Xxxxx /S/Xxxx Xxxxxx
---------------------------------- -----------------------------------
By: Xxxxx Xxxxx By: Xxxx Xxxxxx
Its: Chairman & CEO Its: Managing Director
-and-
/S/ Xxxxx X. Xxxxxxx
----------------------------------
By: Xxxxx X. Xxxxxxx
Its: Executive Vice President
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