EXHIBIT 10.2
CORPORATE DEVELOPMENT SERVICES AGREEMENT
THIS AGREEMENT by and between IVDesk Minnesota, Inc. referred to herein as
"Client", having an office at ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇,
▇▇, and 5X Partners LLC referred to herein as "5X", having an office at ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ (the "Agreement") is made effective
as of the 15th day of February, 2013 and supersedes all previous agreements
between the parties.
In consideration of the mutual covenants and conditions contained herein and
other good and valuable consideration, the receipt and sufficiency of all of
which is hereby acknowledged, the parties hereto mutually agreed as follows:
SCOPE OF WORK: 5X will perform the services described in its Scope of Work
attached and approved by 5X and Client, (referred to herein as "Services") in
accordance with the following "Commercial Terms".
COMMERCIAL TERMS
CONFIDENTIALITY: 5X agrees to be bound by the BI-DIRECTIONAL CONFIDENTIALITY AND
NON-DISCLOSURE AGREEMENT signed into effect on September 14th, 2012. Client
recognizes the need for 5X to be able to document its experience and
qualifications. To permit this process, and notwithstanding any other or
subsequent obligation or confidentiality entered into by 5X, 5X shall, at a
minimum, be entitled to describe its Services and/or the project by title and
generally as to scope, type and size, and upon completion of this scope of work,
state the name of Client in qualifications, promotional and experience
materials. These materials may include information that is not restricted by the
signed BI-DIRECTIONAL CONFIDENTIALITY AND NON-DISCLOSURE AGREEMENT.
COMPENSATION: In consideration for performance of the Services, Client shall
compensate 5X in accordance with the Compensation/Payment Terms included in
attached Scope of Work. Should Client desire to change or add to the Scope of
Work, and 5X is required to exceed its original estimate for any reason, the
Client and 5X may, by mutual written agreement: i) redefine the Scope of Work in
order to accomplish Client's budget objectives; or ii) increase compensation
paid to accomplish additional requested services.
REIMBURSED EXPENSES: Out-of-pocket expenses including but not limited to
shipping charges, printing and reproduction, travel/travel-related expenses and
miscellaneous materials will be billed at cost. Copies of supporting
documentation will be provided upon Client's request and at Client's expense.
Client shall reimburse 5X for out-of-pocket expenses in accordance with the
Payment Terms included in the attached Scope of Work.
GOVERNING LAW: This agreement shall be governed and interpreted in accordance
with the laws of The State of Minnesota, excluding provisions thereof that refer
to the laws of another jurisdiction.
AGREEMENT: These Commercial Terms, the attached General Conditions, and the
Scope of Work together with the Confidentiality Agreement, all incorporated
addendums, amendments, exhibits, orders or schedules define and govern the
performance of the Services and rights and obligations of the parties and their
respective subsidiaries, if any. This Agreement supersedes all prior oral and
written communications, agreements and understandings of the parties with
respect to the subject matter of this Agreement. No amendment, change or
modification of this Agreement shall be valid unless in writing signed by the
parties hereto. If any provision of this Agreement, or any portion thereof, is
held to be invalid and unenforceable, then the remainder of this Agreement shall
nevertheless remain in full force and effect.
IN WITNESS WHEREOF, the parties hereto, through their authorized agents, have
executed this Agreement, effective as of the date first above written.
IV DESK MINNESOTA, INC. 5X PARTNERS, LLC
A CORPORATION: A MINNESOTA LIMITED LIABILITY COMPANY:
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print name print name
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Title Title
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Signature Signature
DATE: DATE:
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GENERAL CONDITIONS
WARRANTY. 5X warrants that it will perform the Services in accordance with the
standards of care and diligence normally practiced by recognized consulting
firms in performing services of a similar nature. If, during the ten (10)
business day period following completion or termination of 5X's Services, it is
shown that 5X has failed to meet this standard, the Client has promptly notified
5X in writing of such failure, 5X shall perform such corrective services within
the original scope of work as may be necessary to make its Services conform to
such standard. This warranty shall constitute 5X's sole warranty and guarantee
obligation and Client's exclusive remedy in respect of the quality of the
Services.
INDEPENDENT CONTRACTOR. This Agreement shall not render 5X an employee, partner,
or agent of the Client for any purpose. 5X is and will remain an independent
contractor in relationship to the Client. The Client shall not be responsible
for withholding taxes with respect to the 5X's compensation hereunder. 5X shall
have no claim against the Client hereunder or otherwise for vacation pay, sick
leave, retirement benefits, social security, worker's compensation, health or
disability benefits, unemployment insurance benefits, or employee benefits of
any kind. 5X hereby acknowledges it has no authority to enter into any contract
or incur any liability on behalf of the Client except to the extent authorized
by the Scope of Work or expressly granted by Client.
CONFLICT OF INTEREST. 5X affirms that it is not engaged by any third party in
services that constitutes a conflict of interest with the Services specified in
this Agreement. If such situation may arise, 5X will disclose, in writing, such
occurrence to Client and Client shall have the right to terminate this Agreement
for cause. Client acknowledges and waives any possible conflict of interest for
5X that exists or may exist between the Client and any existing or potential
subsidiary.
COMPLETION. When 5X deems it has completed the Services, it shall so notify
Client in writing. Within ten (10) business days thereafter, Client shall advise
5X in writing of any defects in the Services for which 5X is responsible under
this Agreement. As soon as any such defects are corrected (or as soon as the ten
(10) day period for such notice has expired and Client has not advised 5X of any
such defects), all 5X Services shall be deemed as accepted by Client.
TERMINATION. Either 5X or Client may terminate this Agreement at its convenience
upon ten (10) business days prior written notice to the other. In addition,
either party may terminate this Agreement upon written notice to the other in
the event the other party becomes insolvent or bankrupt or is the debtor in any
receivership or bankruptcy proceeding or effects a general assignment for the
benefit of its creditors, in the event the other party commits a substantial
breech of this Agreement and fails to correct or take reasonable steps to
correct such substantial breach within ten (10) business days after receipt of
written notice thereof. Upon any termination of this Agreement, Client shall pay
5X only the costs incurred and fee earned through the effective date of
termination, and neither party shall have any further liability to the other.
CONSEQUENTIAL DAMAGES. In no event shall 5X incur any liability under or in
connection with this Agreement (including any breach thereof), whether based
▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ liability, tort, negligence, or other legal theory, for
any indirect, incidental, special or consequential damages of any nature
whatsoever including, without limitation, any damages arising out of or
pertaining to loss of use of property, loss of profits or other revenue,
interest, loss of product, increased expenses or business interruption, however
the same may be caused.
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LITIGATION SUPPORT. In the event 5X is requested by Client or compelled by
subpoena or otherwise by any party to give expert or witness testimony or
otherwise participate in a judicial or administrative proceeding involving
Client at any time. Client shall compensate 5X at 100% of the Billing Rate,
including preparation time, and shall reimburse 5X for all out-of-pocket costs
as provided herein.
INDEMNIFICATION. Client hereby agrees to indemnify, defend and hold 5X harmless
from and against any and all claims, liabilities, damages, judgments, costs,
awards and expenses (including reasonable attorney fees) suffered or incurred by
5X arising from or relating to the relationship between 5X and Client
established by this Agreement, provided that: i) 5X shall give Client reasonably
prompt notification in writing of any such claim, suit, threat or allegation;
ii) Client shall have control of the defense of any such claim or suit and
negotiation for its settlement or compromise; and iii) Client is given
information and assistance by 5X for the defense or settlement of same.
Client shall have no defense or indemnification obligations to 5X and 5X shall
be responsible for and shall hold Client harmless from claims or suits by third
parties arising from: i) the performance by 5X or its employees or agents of
5X's obligations hereunder in a grossly negligent manner or in violation of any
applicable federal or state laws or regulations; ii) any contract or other
agreement between 5X and a third party; iii) any activities by 5X, its employees
or agents which are outside of the scope of this Agreement; or iv) claims and
suits by third parties relating to personal injury or property damage caused by
the gross negligence of 5X employees or agents whether within or outside the
scope of this Agreement.
INTERPRETATION. Except and only to the extent expressly stated to the contrary
herein, indemnities against, releases from, assumptions of and limitations on
liability expressed in this Agreement, as well as waivers of subrogation rights,
shall apply even in the event of the fault, negligence or strict liability of
the party indemnified or released or whose liability is limited or assumed or
against whom rights of subrogation are waived and shall extend to the officers,
directors, employees, licensors, agents and partners of such party and their
partners and related entities.
LIMITATION OF LIABILITY.
EXCEPT FOR AMOUNTS DUE UNDER THE INDEMNIFICATION PROVISIONS FOR CLAIMS BY THIRD
PARTIES, IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR
INDIRECT, INCIDENTAL, PUNITIVE, SPECIAL OR CONSEQUENTIAL DAMAGES ARISING IN
CONNECTION WITH THIS AGREEMENT, ITS NEGOTIATION, FORMATION, BREACH, EXPIRATION
OR TERMINATION.
RESOLUTIONS OF DISPUTES. Any controversy arising out of or relating to this
Agreement, any modifications or extension hereof, or any order, sale or
performance hereunder, including any claim for damages or rescission, or both,
shall be settled by binding arbitration in Hennepin County, Minnesota in
accordance with the commercial rules then obtaining of the American Arbitration
Association. The parties consent to the jurisdiction of the state courts in and
for the County of Hennepin, State of Minnesota, and of the United States
District Court for the District of Minnesota, for all purposes in connection
with such arbitration. The parties consent that any process or notice of motion
or other application or paper in connection with arbitration, may be served by
certified mail, return receipt requested, on the persons/organization identified
in the signatures above. The parties further agree that arbitration proceedings
must be instituted within one year after the claimed breach occurred, and that
the failure to institute arbitration proceedings within such period or to make
any counterclaim in such arbitration shall constitute an absolute bar to the
institution of any proceedings and a waiver of all such claims. The prevailing
party in any arbitration or other proceedings shall be entitled, in addition to
any other rights or remedies it may have, to reimbursement for its expenses
incurred thereby including court and arbitration costs, reasonable attorney's
fees, witness fees, and arbitrators fees.
AGREEMENT NOT TO DISPARAGE. Client, their officers and directors, on the one
hand, and 5X on the other hand, agree that they will not, directly or
indirectly, in public or in private, disparage, deprecate or impugn, or
otherwise make any remarks that would tend to or could reasonably be construed
to disparage, deprecate or impugn, the other party, nor shall any such party
encourage other persons or entities to do so.
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NO WAIVER. No failure by either party to insist on performance of any term,
condition, instruction, or to exercise any right or privilege included in this
Agreement, and no waiver of any breach shall constitute a waiver of any other or
subsequent term, condition, instruction, breach, right or privilege.
LATE PAYMENT. Invoices not paid within thirty (30) days are subject to interest
from the 31st day at the rate of 1-1/2% per month (18% per annum) but not to
exceed the maximum interest allowed by law. In the event 5X places Client's
account in the hands of an attorney or collection agency for collection, Client
agrees to pay 5X all fees and expenses, including attorneys' fees and expert
fees necessitated thereby.
MISCELLANEOUS.
a. This Agreement expresses the complete and exclusive statement of the
understanding between the parties regarding the subject matter herein and
supersedes any prior or contemporaneous written or oral proposals and
agreements, representations or courses of dealing. Any modifications to this
Agreement must be in writing and signed by the Client executive contact and an
authorized representative of 5X.
b. This Agreement shall not be assigned or transferred by either party
without the prior written approval of the other. Any such prohibited assignment
or transfer shall be null and void.
c. The obligations of the parties accrued as of the date of completion,
termination, or expiration of this Agreement and the obligations which, by their
nature are intended to survive such completion, termination, or expiration, and
which shall survive the completion, termination, or expiration of this
agreement, include without limitation the obligations relating to:
- payment of fees and expense reimbursement
- non-disclosure
- indemnification and hold harmless
- agreement not to disparage
- return and availability of information
- resolution of disputes
d. If any terms of this Agreement are deemed to be unenforceable by a court
of competent jurisdiction, then such term shall be deemed deleted. The remaining
terms shall be construed so as to give maximum lawful effect to any such deleted
terms.
e. Section headings and titles are for convenience only and shall be of no
force or effect in the construction or interpretation of this Agreement.
f. All notices pertaining to this Agreement should be in writing and shall
be sufficient if sent via: i) certified mail to the addresses for the parties
set forth in the first paragraph of this Agreement; or ii) sent via email and
acknowledged by returned email with such acknowledgment from the receiving
party.
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5X SCOPE OF WORK
1. INTRODUCTION
5X has completed two contracts (Scope of Work Addendums 1 & 2) for Client
that delivered the planning effort to grow the company via a financed
market launch (SOW Addendum 1) and implemented the first stage of the plan
(SOW Addendum 2) including the formation of a new corporate structure, and
the raising of a first round of launch funds. 5X and Client have signed a
third agreement dated September 15th 2012; this scope of work supersedes
that agreement.
2. THE SERVICES
This Scope of Work covers 5X's participation in the Market Launch and other
post-funding activities including the R&D planning, the raising of a second
round of financing, the registration of investor stock, and the initiation
of public trading, and the ramp up of the sales system including channel
sales.
3. THE DELIVERABLES
During this stage, the 5X participants will fill operating roles for
Client, and will deliver work results as defined by the Board-approved
Business Plan and management delegations as updated from time to time.
4. PROGRAM PARTICIPANTS AND ROLES
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MOBILE CONTACT
NAME ROLE INFORMATION
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▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ Business Development Role: 763/ 390 1444
Financing, Acquisitions, Public Filings,
Channel Sales
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▇▇▇ ▇▇▇▇▇▇▇ Sales and Marketing Leader Role: 651/ 269 7837
Business Planning, Building the Sales and
Marketing Systems
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▇▇▇▇▇▇ ▇▇▇▇▇ Investor Relations Role: 612/ 558 0007
Identifying and Closing Fitted Investors,
Investor Communications
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5. THE SCHEDULE & SERVICES TERM
5.1. The start date will be February 15, 2013 and shall continue until:
5.1.1. A mutually agreed upon updated scope of work is initiated
5.1.2. 90 day notice of termination by either party
5.2. The time commitments, compensation and term will be as shown in the
table below:
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NAME COMMITMENT
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▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ Time Commitment: 80%
Monthly Compensation: $10,000
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▇▇▇ ▇▇▇▇▇▇▇ Time Commitment: 80%
Monthly Compensation: $10,000
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▇▇▇▇▇ ▇▇▇▇▇ Time Commitment: 60%
Monthly Compensation: $7,500
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Total 5X Partners $27,500/mo
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6. COMPENSATION/PAYMENT TERMS
6.1. For each period, 5X will be compensated in the total amounts above,
payable on the 15th each month in the respective period. All payments
are made in advance of the period
6.2. Payment shall be payable to "5X Partners" and an account for
electronic transfer of funds will be provided to client.
6.3. The Client will also pay for the reasonable out-of-pocket expenses (at
cost) incurred by 5X.
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