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CONSULTING AGREEMENT
THIS CONSULTING AGREEMENT (the "Agreement") is made and entered into effective
the 1st day of March ______ 1999 by and between XxxxxxxXxxxx.xxx Corporation,
(the "Consultant"); whose principal place of business is 0 Xxxxxxxx Xxxxx,
Xxxxxxxxx 0X, Xxxxx Xxxxxx, Xxxxxxx and Medalion Services Inc. (the "Client")
whose principal place of business is 0 Xxxx Xxxxxx Xxxx, Xxxxxxxx Xxxxx. Xxx
Xxxx, 00000.
WHEREAS, Consultants is in the business of providing services for internet based
public relations; and
WHEREAS, the Client deems it to be in its best interest to retain Consultant to
render to (the "Client"), such services as may be needed; and
WHEREAS, Consultant is ready, willing and able to render such consulting and
advisory services to the Client as hereinafter described an the terms and
conditions more fully set forth below
NOW, THEREFORE, in consideration of the mutual promises and covenants set forth
in this Agreement, the receipt and sufficiency of which are hereby acknowledged,
the parties hereto agree as follows.
1. Consulting Services- The Client hereby retains the Consultant as an
independent consultant to the Client and the Consultant hereby accepts and
agrees to such retention. The Consultant shall render to the Client such
services as set forth on Exhibit A, attached hereto and by reference
incorporated herein.
It is acknowledged and agreed by the Client that consultant carries no
professional licenses, other than any that may be listed on Exhibit A; and
it is not rendering legal advice or performing accounting services, no
acting as an investment advisor or broker/dealer within the meaning of the
applicable state and federal securities laws. It is further acknowledged
and agreed by the Client that the services to be provided to the Client
hereunder are presentl not contemplated to be rendered in connection with
the offer and sale of Securities in a capital raising transaction;
althought Client may request services of Consultant therefor and have
reached a basis for compensation if such additional services are rendered.
The services of consultant shall not be Exclusive nor shall be required to
render any specific number of hours or assign specific personnel to the
Client or its projects.
2. Independent Contractor. Consultant agrees to perform its consulting duties
hereto as an independent contractor. Nothing contained herein shall be
considered to as creating an employer-employee relationship between the
parties to this Agreement
The Client shall not be liable to third parties for the acts of Consultant
or its servants or agents, in performing the consulting duties hereunder,
except in the case of damages or injuries acting on behalf of the Client.
The Client shall not make social security, workers' compensation or
unemployment insurance payments on behalf of
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Consultant The parties hereto acknowledge and agree that Consultant cannot
guarantee the results or effectiveness of any of the services rendered or
to be rendered by Consultant hereunder- Rather, Consultant shall conduct
its operations and provide its services in a professional manner and in
accordance with good industry practice. Consultant will use its best
efforts and does not promise results.
3. Time, Place and Manner of Performance. The Consultant shall be available
for advice and counsel to the officers and directors of the Client as such
reasonable and convenient times and places as may be mutually agreed upon.
Except as aforesaid, the time, place and manner of performance of the
services hereunder, including the amount of time to be allocated by the
Consultant to any specific service, shall be determined at the sole
discretion of the Consultant
4. Term of Agreement. The term of this Agreement shall be six (6) months,
commencing on the date of this Agreement, both subject to prior termination
as hereinafter provided.
5. Compensation. In full consideration of the services to be provided for the
Client by the Consultant as fully set forth in Exhibit A, the Client agrees
to compensate Consultant in the manner set forth in Exhibit B.
6. Expenses. The Client shall reimburse the Consultant for all pre-approved
expense$ and distributions incurred by the Consultant on behalf of the
Client in connection with the performance of consulting services pursuant
to this Agreement Consultant shall be solely responsible for all expenses
and disbursement anticipated to be made in connection with its performance
under this Agreement
7. Termination,
(a) Consultants relationship with the client hereunder may be terminated
at any time by mutual written agreement of the parties hereto.
(b) This Agreement shall terminate upon the dissolution, bankruptcy or
insolvency of the Client.
(c) This Agreement may be terminated by either party upon giving written
notice to the other party if the other party is in default hereunder
and such default is not cured within fifteen (15) days of written
notice of such default.
(d) Without excusing the Clients obligations under Section 5 herein above.
Consultant shall have the right and discretion to terminate this Agreement
should the Client violate any law, ordinance, permit or regulation of any
governmental entity, except for violations which either singularly or in the
aggregate do not have or will not have a material adverse effect on the
operations of this Client.
(e) This Agreement may be terminated after specific written notice, the
continuation or doing of
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(i) Any willful breach of duty by Consultant;
(ii) Any material breach by Consultant of the obligations in Section 9;
(iii)Any material acts or events which inhibit Consultant from fully
performing its responsibilities under this Agreement in good faith
8. Work Product. It is agreed that all information and materials produced for
the Client shall be the property of the Consultant, free and clear of all
claims thereto by the Client, -and the Client shall retain no claim of
authorship therein.
9. Confidentiality. The consultant recognizes and acknowledges that it has and
will have access to certain confidential information of the Client and its
affiliates that are valuable, special and unique assets and property of the
Client and such affiliates. The Consultant will not, during the term of
this Agreement disclose, without the prior written consent or authorization
of the Client, any of such information to any person, for any reason or
purpose whatsoever. In this regard, the Client agrees that such
authorization or consent to disclose may be conditioned upon the disclosure
being made pursuant to the secrecy agreement, protection order, provision
of statute, rule, regulation or procedure under which the confidentiality
of the information is maintained in the hands of the person to whom the
information is to be disclosed or in compliance with the terms of a
judicial order or administration process.
10. Disclaimer of Warranty. Consultant is proud of its record in providing
state-of-the-art reliable services, but Consultant MAKES ABSOLUTELY NO
WARRANTIES WHATSOEVER, EXPRESS OR IMPLIED, INCLUDING WARRANTIES OF NOW
INFRINGEMENT,MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE.
CONSULTANT CANNOT GUARANTEE CONTINUOUS SERVICE, SERVICE AT ANY PARTICULAR
TIME, INTEGRITY OF DATA STORED OR TRANSMITTED VIA ITS SYSTEM. NEITHER
CONSULTANT NOR ANYONE ELSE INVOLVED IN PROVIDING SERVICES PURSUANT TO THIS
AGREEMENT WILL BE LIABLE TO CUSTOMER OR ANY THIRD PARTY FOR ANY CLAIMS OR
DAMAGES OF ANY KIND (DIRECT, CONSEQUENTIAL, SPECIAL, OR ANY OTHER) THAT
ARISE OUT OF THE USE OR INABILITY TO USE SUCH SERVICES, whether or not
resulting from fault or negligence on Consultant's part, even if Consultant
has been advised as to the possibility of such damages- Some Jurisdictions
may prohibit certain disclaimers, so the above disclaimers may not apply.
Client's local jurisdiction's laws will apply only to the extent they
override this agreement.
11. Conflict of Interest. The Consultant shall be free to perform services for
other clients and/or persons. The consultant will notify the Client of its
performance of consultant services for any other client and/or person,
which could conflict with its obligations under the Agreement Upon
receiving such notice, the Client may terminate this Agreement or consent
to the Consultants outside consulting activities; failure to terminate this
Agreement, within seven (7) days of receipt of written notice of conflict,
shall constitute the Clients ratification and ongoing consent to the
consultant's outside consulting services.
12. Disclaimer of Responsibility for Act of the Client. The obligations of
Consultant described in this Agreement consist solely of the furnishing of
information and advice
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to the Client in the form of services. In no event shall Consultant be
required by this Agreement to represent or make management decisions for
the Orient. All final decisions with respect to acts and omissions of the
Client or any affiliates and subsidiaries, shall be those of the Client or
such affiliates and subsidiaries, and Consultant shall under no
circumstances be liable for any expense incurred or loss suffered by the
Client as a consequence of such acts or omissions.
13. Indemnity by the Client The Client shall protect, defend, indemnify and
hold Consultant and Its, assigns and attorneys, accountants, employees,
officers and directors harmless from and against all losses, liabilities
damages, judgments, claims, counterclaims, demands, actions, proceedings,
costs and expenses (including reasonable attorneys' fees) of every kind and
character resulting from, relating to or arising out of (a) the inaccuracy,
non-fulfillment or breach of any representation, warranty, covenant or
agreement made by the Client herein; or (b) any legal action, including any
counterclaim, representation, warranty, covenant or agreement made by or
against the Client herein; or (e) negligent or willful misconduct,
occurring during the term thereof with respect to any of the decisions made
by the Client.
14. Notices. Any notices required or permitted to be given under this Agreement
shall be sufficient if in writing and delivered or sent by registered or
certified mail to the principal office of each party.
15. Waiver of Breach. Any waiver by either party of a breach of any provision
of this Agreement by the other party shall not operate or be construed as a
waiver of any subsequent breach by any party.
16. Assignment. This Agreement and the right and obligations of the consultant
hereunder shall not be assignable without the written consent of the
Client.
17. Applicable Law. It is the intention of the parties hereto that this
Agreement and the performance hereunder and all sub and special proceedings
hereunder be construed in accordance with and under and pursuant to the
laws of the State of Florida and that in any action, special proceeding or
other proceeding that may be brought arising out of, in connection with or
by reason of this Agreement, the law of the State of Florida shall be
applicable and shall govern to the exclusion of the law of any other forum,
without regard to the jurisdiction on which any action or special
proceeding may be instituted.
18. Severability. All agreements and covenants contained herein are severable,
and in the event any of them shall be held to be invalid by any competent
court, the Agreement shall be interpreted as if such invalid agreements or
covenants were not contained herein,
19. Entire Agreement. This Agreement constitutes and embodies the entire
understanding and agreement of the parties and supersedes and replaces all
prior understanding, agreements and negotiations between the parties.
20. Waiver and Modification. Any waiver, alteration, or modification of any of
the provisions of this Agreement shall be valid only if made in writing and
signed by the
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parties hereto. Each party hereto, may waive any of its rights hereunder
without affecting a waiver with respect to any subsequent occurrences or
transactions hereof.
21. Binding Arbitration. As concluded by the parties hereto upon the advice of
counsel, and as evidenced by the signatures of the parties hereto and the
signatures of their respective attorneys, any controversy between the
parties hereto involving the construction or application of any of the
terms, covenants, or conditions of this agreement, shall on the written
request of one party served upon the other, be submitted to arbitration,
and such arbitration shall comply with and be governed by the provisions of
the Federal Arbitration Act as it may be amended; provided, that
Arbitration shall be conducted in Coral Gables, Florida and be conducted by
the American Arbitration Association ("AAA')- The FAA rules shall apply,
and the AAA rules shall apply if not in conflict with the FAA rules. All
evidence shall be subject to the Federal Rules of Civil Evidence (FRCE). In
the event of a conflict between the FAA rules and the FRCE rules, the
arbitrators will defer to the FRCE rules as superceding rules.
22. Counterparts and Facsimile Signature. This Agreement may be executed
simultaneously in two or more counterparts, each of which shall be deemed
an original, but a of which taken together shall constitute one and the
same instrument. Execution and delivery of this Agreement by exchange of
facsimile copies bearing the facsimile signature of a party hereto shall
constitute a valid and binding execution and delivery of this Agreement by
such party. Such facsimile copies shall constitute enforceable original
documents.
IN WITNESS WHEREOF, the parties hereto have duly executed and delivered this
Agreement, effective as of the date set forth above.
CONSULTANT
XxxxxxxXxxxx.xxx Corporation
BY /s/
DATE 3/1/99
CLIENT
Medalion Services Inc.
By /s/
DATE 3/1/99
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EXHIBIT "A"
Consultant agrees to provide the following services to clients
Consultant shall provide services to Client as an independent management
consultant. Consultant shall make itself available to consult with the board of
directors, officers, employees and representatives and agents of the Client at
reasonable times, concerning matters pertaining to internet based public
relations. Consultant may, at the request of the Client assist in the
preparation of written reports on such matters.
Consultant does not undertake as part of this Agreement to provide loans,
investments or financing for the Client, although such financial benefits may be
made available to Client during the course of consultant's engagement, and which
Will be compensated as additional compensation.
Consultant will not perform any activities that could subject Consultant or
Client to any abnegation, of violations of Federal or applicable state
securities law.
Consultant will also provide the following optional services:
Produce & Manage Effective Internet Media Relations Campaign:
Consultant, XxxxxxxXxxxx.xxx, produces two financial Web sites designed to
provide clone stop shopping' for the online investor's financial information
needs: XxxxXxxxxxXxxxxx.xxx and XxxxXxXxxxxXxx.xxx. (the "Consultant's Web
Sites") Wall Street Ticker and Wall St Small Cap offer access to quotes, online
brokers, financial charts, corporate profiles and press releases while
furnishing pertinent corporate information to the public. Xxxx sites are
provided to help companies gain exposure, increase volume and lower their cost
of capital
Consultant will create and produce an in-depth corporate profile along with key
management biographies, press releases, and banner ads that will be featured
throughout Consultant's Web Sites. The profile will also be distributed to Wall
St-Small Cap's and Wall Street Ticker's online subscribers via e-mail
broadcasting. Each profile can be updated on a monthly or quarterly basis as
deemed necessary.
Produce & Manage Corporate World Wide Web Site:
Consultant will design, construct and service Client's World Wide Web Site.
Consultant will host the site on its Silicon Graphics Origin 200 Web Server.
Consultants systems are hosted and maintained in a Unix operating environment
and connectivity to the Internet is provided by a "T1" line.
At Client's request, Consultant will acquire an Internet Second-Level Domain
Name ("SLD"), from the US InterNIC or successor registar only, on behalf of
Customer. Such a request by Client and/or Client's acceptance or use of the SLD
obtained by Consultant shall in all cases constitute Client's waiver of any and
all claims which it may have, or which may later arise, against Consultant for
any loss, damage, claim or expense arising out of, or related to, the
acquisition, registration, and/or use of such SLD.
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Media Management:
Consultant will coordinate and manage the buying & placing of print media in
various segments of the financial media including the New York Tunes and the
Wall Street Journal.
Press & News Releases:
Consultant will help produce and distribute new press releases and corporate
profiles via e-mail broadcasting to Wall Street Ticker's and Wall St. Small
Cap's online subscriber base and to over 50,000 media sources across the U.S.
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DUTIES OF THE COMPANY
a. Provide Executive Summary
b. Provide Mission statement
c. Need:
1. Why location chosen?
2. Type of facility
3. Work Flow Chart
4. Press Releases issued during the last three years
5. Product brochures and other marketing materials
6. Any recent analysis of the Company prepared by the Company, investment
bankers. consultants, accountants or others.
d. Competition (Who they are) (Where they are located)
e. Operating table of organization 1. Services to be provided 2. Marketing
strategy 3. Target Market
f. Key Management (Resumes on all principals of company to include: name,
address, telephone number, and title. Social Security number, date of
birth, place of birth, address for last five (5) years, education, business
experience)
g. Equipment
h. Financial information needed, prepared by an accountant 1. Years 1-3 Cash
Flow forecast 2. Years 1-3 Income Statements 3. Use of Proceeds
i. Potential customer list
j. Documentation
1. Accountant
2. Corporate Books and Information
3. Any existing contracts
4. Articles of Incorporation and By-laws
5. Confidential Structure review
k. Pay Consultant according to the schedule provided herein.
l. Hold the Consultant harmless for all actions it makes in good faith based on
information provided by the Company.
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