EXHIBIT 10.8
CONSULTING AGREEMENT
THIS AGREEMENT is entered into as of May 1, 2005 by Sunwin International
Neturacuticals, Inc., organized and existing under the laws of Nevada State
("Sunwin" or "Company") and China Direct Investments, Inc. existing under the
laws of Florida State ("CDI or Consultant"),
WITNESSETH:
In consideration of the premises and mutual covenants hereinafter contained, the
parties hereto agree as follows:
1. THE SERVICES
Consultant will provide Company consulting services in capital markets
including, but not limited to,
a. Providing all necessary assistance in accounting, auditing and legal services
b. Providing assistance in preparation of SB-2 registration statement
c. Translation of all necessary documents
d. Providing general business consulting services
e. Providing funding sources
f. Providing assistance in preparing all offering documents
In addition, the Company appoints the Consultant as its representative in the
United States, and that the Consultant, through Dr. Xxxxx Xxxx, as the CEO of
the Consultant, is authorized to communicate with, translate to and provide
instructions to and from the Company to and from the Company's professionals in
the United States, including the Company's attorneys and accountants, on all
matters relating to the Company, including but not limited to the filings made
with the United States Securities and Exchange Commission.
2. WORK FOR HIRE
It is the intention of the parties hereto that all rights, including without
limitation copyright in any reports, surveys, marketing promotional and
collateral materials prepared by the Consultant pursuant to the terms of this
Agreement, or otherwise for Company (hereinafter "the Work") vest in Company.
The parties expressly acknowledge that the Work was specially ordered or
commissioned by Company, and further agree that it shall be considered a "Work
Made for Hire" within the meaning of the copyright laws of the United States and
that Company is entitled as author to the copyright and all other rights
therein, throughout the world, including, but not limited to, the right to make
such changes therein and such uses thereof, as it may determine in its sole and
absolute discretion.
3. PROPRIETARY INFORMATION
a. For purposes of this Agreement, "proprietary information" shall mean any
information relating to the business of Company or any entity in which Company
has a controlling interest and shall include (but shall not be limited to)
information encompassed in all drawings, designs, programs, plans, formulas,
proposals, marketing and sales plans, financial information, costs, pricing
information, customer information, and all methods, concepts or ideas in or
reasonably related to the business of Company.
b. Consultant agrees to regard and preserve as confidential, all proprietary
information, whether Consultant has such information in memory or in writing or
other physical form. Consultant shall not, without written authority from
Company to do so, directly or indirectly, use for the benefit or purposes, nor
disclose to others, either during the term of its engagement hereunder or
thereafter, except as required by the conditions of Consultant's engagement
hereunder, any proprietary information.
c. Consultant shall not disclose any reports, recommendations, conclusions or
other results of the Services or the existence or the subject matter of this
contract without the prior written consent of Company. In
Consultant's performance hereunder,
Consultant shall comply with all legal obligations it may now or hereafter have
respecting the information or other property of any other person, firm or
corporation.
d. The Consultant expressly agrees that the covenants set forth in this
Paragraph are being given to Company in connection with the engagement
of the Consultant by Company and that such covenants are intended to
protect Company against the competition by the Consultant, within the
terms stated, to the fullest extent deemed reasonable and permitted in
law and equity. In the event that the foregoing limitations upon the
conduct of the Consultant are beyond those permitted by law, such
limitations, both as to time and geographical area, shall be, and be
deemed to be, reduced in scope and effect to the maximum extent
permitted by law.
e. The foregoing obligations of this Paragraph shall not apply to any part
of the information that (i) has been disclosed in publicly available
sources of information, (ii) is, through no fault of the Consultant,
hereafter disclosed in publicly available sources of information, (iii)
is now in the possession of Consultant without any obligation or
confidentiality, or (iv) has been or is hereafter lawfully disclosed to
Consultant by any third party, but only to the extent that the use or
disclosure there of has been or is rightfully authorized by that third
party.
4. FEES AND REIMBURSEMENT OF CERTAIN EXPENSES
a. Company shall pay Consultant consulting fee for 500,000 warrants at
purchase 500,000 shares of Sunwin's common stock (OTCBB: SUWN) at
$0.15 per share.
5. BENEFITS
The Consultant, as an independent contractor, shall not be entitled to any other
benefits.
6. DUTY TO REPORT INCOME
The Consultant acknowledges and agrees that it is an independent contractor and
not an employee of the Company and that it is Consultant's sole obligation to
report as income all compensation received from Company pursuant to this
Agreement. The Consultant further agrees that the Company shall not be obligated
to pay withholding taxes, social security, unemployment taxes, disability
insurance premiums, or similar items, in connection with any payments made to
the Consultant pursuant to the terms of this Agreement.
7. TERM
This Agreement shall be effective beginning as of first day of May 1, 2005, and
shall end on June 30, 2005.
8. NOTICES
All notices and xxxxxxxx shall be in writing and sent via first class mail to
the respective addresses of the parties set forth at the beginning of this
Agreement or to such other address as any party may designate by notice
delivered hereunder to the other party.
9. GENERAL
a. The terms and conditions of Paragraphs 3, 4 and 5 hereof shall survive the
termination of this Agreement or completion of the Services as the case may be.
b. Neither the Company nor Consultant shall assign this Agreement or delegate
its duties hereunder and shall not subcontract any of the Services to be
performed hereunder without the prior written consent of the other party hereto.
c. Consultant shall perform the Services as an independent contractor and shall
not be considered an employee of Company or Partner, joint venture or otherwise
related to Company for any purpose.
d. This Agreement shall be governed by the laws of the State of Florida.
e. This Agreement constitutes the entire understanding between Consultant and
Company respecting the Services described herein. The terms and conditions of
any purchase order shall have no effect upon this Agreement and shall be used
for accounting purposes only.
f. The failure of either party to exercise its rights under this Agreement shall
not be deemed to be a waiver of such rights or a waiver of any subsequent
breach.
g. Any delay or nonperformance of any provision of this Agreement caused by
conditions beyond the reasonable control of the performing party shall not
constitute a breach of this Agreement, provided that the delayed party has taken
reasonable measures to notify the other of the delay in writing. The delayed
party's time for performance shall be deemed to
be extended for a period equal to the duration of the conditions beyond its
control. "Conditions beyond a party's reasonable control" include, but are not
limited to, natural disasters, acts of government after the date of the
Agreement, power failure, fire, flood, acts of God, labor disputes, riots, acts
of war and epidemics. Failure of subcontractors and inability to obtain
materials shall not be considered a condition beyond a party's reasonable
control.
h. Non-Solicitation of Consultant's Employees: Company agrees not to knowingly
hire or solicit Consultant's employees during performance of this Agreement and
for a period of two years after termination of this Agreement without
Consultant's written consent.
i. Mediation and Arbitration: If a dispute arises under this Agreement, the
parties agree to first try to resolve the dispute with the help of a mutually
agreed-upon mediator in Palm Beach County, FL. Any costs and fees other than
attorney fees associated with the mediation shall be shared equally by the
parties. If the dispute is not resolved through mediation, the parties agree to
submit the dispute to binding arbitration in Florida under the rules of the
American Arbitration Association. Judgment upon the award rendered by the
arbitrator may be entered in any court with jurisdiction to do so.
j. Attorney Fees: If any legal action is necessary to enforce this Agreement,
the prevailing party shall be entitled to reasonable attorney fees, costs and
expenses.
k. Complete Agreement: This Agreement together with all exhibits, appendices or
other attachments, which are incorporated herein by reference, is the sole and
entire Agreement between the parties. This Agreement supersedes all prior
understandings, agreements and documentation relating to such subject matter. In
the event of a conflict between the provisions of the main body of the Agreement
and any attached exhibits, appendices or other materials, the Agreement shall
take precedence. Modifications and amendments to this Agreement, including any
exhibit or appendix hereto, shall be enforceable only if they are in writing and
are signed by authorized representatives of both parties.
IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement as of
the date first above written.
Sunwin International Neutraceuticals, Inc.
Signature: ______________________________
Xxxxxxxx Xxx
China Direct Investments, Inc.
Signature: _______________________________
Dr. Xxxxx Xxxx, CEO
