EX-10.12
CONSULTING SERVICES AGREEMENT
CONSULTING SERVICES AGREEMENT
This Consulting Services Agreement ("Agreement"), dated September
1, 2005 is made by and between Xx Xxxx & Company, Inc., a Nevada
corporation, and its representative Xxxxxx Xx Xxxx (collectively
referred to as the "Consultant"), whose address is 000 Xxxxxxx Xxxxxx,
Xxx Xxxxx, Xxxxxx 00000, and RMD Technologies, Inc., a California
corporation ("Client"), having its principal place of business at 000
Xxxx 0xx Xxxxxx, Xxxxxxxxx, Xxxxxxxxxx 00000.
WHEREAS, Consultant has extensive background and knowledge in the
area of federal securities laws and regulations related to financial
and accounting issues and accounting knowledge;
WHEREAS, Consultant desires to be engaged by Client to provide
information, evaluation and consulting services to the Client in his
area of knowledge and expertise on the terms and subject to the
conditions set forth herein;
WHEREAS, Client is a publicly held corporation and desires to
further develop its business; and
WHEREAS, Client desires to engage Consultant to provide
information, evaluation and consulting services to the Client in his
area of knowledge and expertise on the terms and subject to the
conditions set forth herein.
NOW, THEREFORE, in consideration for those services Consultant
provides to Client, the parties agree as follows:
1. Services of Consultant.
Provide services related to and customary to that of a person
serving in Chief Financial Officer position, as well as, services
related to Securities and Exchange Commission filings and assist in
such filings, and review monthly financial information for the next 12
months commencing on September 1, 2005.
2. Consideration.
Client agrees to pay Consultant, as his fee and as consideration
for services provided a total of Sixty Thousand Dollars ($60,000.00)
in the following manner: (1) Two Thousand Dollars ($2,000.00) to be
paid in cash monthly and (2) Thirty Six Thousand Dollars ($36,000.00)
to be paid in the form of the Client's common stock. Monthly fee of
$2,000 shall be due and payable not later than the fifteenth (15th) of
each month, beginning with the first payment due on September 15,
2005. Such monthly fees shall increase by ten percent (10%)
beginning on each anniversary date of the Agreement. The $36,000
shall accrue ratably on a monthly basis over the next twelve months.
3. Confidentiality.
Each party agrees that during the course of this Agreement,
information that is confidential or of a proprietary nature may be
disclosed to the other party, including, but not limited to, product
and business plans, software, technical processes and formulas, source
codes, product designs, sales, costs and other unpublished financial
information, advertising revenues, usage rates, advertising
relationships, projections, and marketing data ("Confidential
Information"). Confidential Information shall not include information
that the receiving party can demonstrate (a) is, as of the time of its
disclosure, or thereafter becomes part of the public domain through a
source other than the receiving party, (b) was known to the receiving
party as of the time of its disclosure, (c) is independently developed
by the receiving party, or (d) is subsequently learned from a third
party not under a confidentiality obligation to the providing party.
4. Late Payment.
Client shall pay to Consultant all fees within fifteen (15) days
of the due date. Failure of Client to finally pay any fees within
fifteen (15) days after the applicable due date shall be deemed a
material breach of this Agreement, justifying suspension of the
performance of the "Services" provided by Consultant, will be
sufficient cause for immediate termination of this Agreement by
Consultant. Any such suspension will in no way relieve Client from
payment of fees, and, in the event of collection enforcement, Client
shall be liable for any costs associated with such collection,
including, but not limited to, legal costs, attorneys' fees, courts
costs, and collection agency fees.
5. Indemnification.
(a) Client.
Client agrees to indemnify, defend, and shall hold harmless
Consultant and /or his agents, and to defend any action brought
against said parties with respect to any claim, demand, cause of
action, debt or liability, including reasonable attorneys' fees to the
extent that such action is based upon a claim that: (i) is true, (ii)
would constitute a breach of any of Client's representations,
warranties, or agreements hereunder, or (iii) arises out of the
negligence or willful misconduct of Client, or any Client content to
be provided by Client and does not violate any rights of third
parties, including, without limitation, rights of publicity, privacy,
patents, copyrights, trademarks, trade secrets, and/or licenses.
(b) Consultant.
Consultant agrees to indemnify, defend, and shall hold harmless
Client, its directors, employees and agents, and defend any action
brought against same with respect to any claim, demand, cause of
action, debt or liability, including reasonable attorneys' fees, to
the extent that such an action arises out of the gross negligence or
willful misconduct of Consultant.
(c) Notice.
In claiming any indemnification hereunder, the indemnified party
shall promptly provide the indemnifying party with written notice of
any claim, which the indemnified party believes falls within the scope
of the foregoing paragraphs. The indemnified party may, at its
expense, assist in the defense if it so chooses, provided that the
indemnifying party shall control such defense, and all negotiations
relative to the settlement of any such claim. Any settlement intended
to bind the indemnified party shall not be final without the
indemnified party's written consent, which shall not be unreasonably
withheld.
6. Limitation of Liability.
Consultant shall have no liability with respect to Consultant's
obligations under this Agreement or otherwise for consequential,
exemplary, special, incidental, or punitive damages even if Consultant
has been advised of the possibility of such damages. In any event, the
liability of Consultant to Client for any reason and upon any cause of
action, regardless of the form in which the legal or equitable action
may be brought, including, without limitation, any action in tort or
contract, shall not exceed ten percent (10%) of the fee paid by Client
to Consultant for the specific service provided that is in question.
7. Termination and Renewal.
(a) Term.
This Agreement shall become effective as of September 1, 2005 and
shall terminate three (3) years thereafter. Unless otherwise agreed
upon in writing by Consultant and Client, this Agreement shall not
automatically be renewed beyond its Term.
(b) Termination.
Either party may terminate this Agreement on thirty (30) calendar
day's written notice, or if prior to such action, the other party
materially breaches any of its representations, warranties or
obligations under this Agreement. Except as may be otherwise provided
in this Agreement, such breach by either party will result in the
other party being responsible to reimburse the non-defaulting party
for all costs incurred directly as a result of the breach of this
Agreement, and shall be subject to such damages as may be allowed by
law including all attorneys' fees and costs of enforcing this Agreement.
(c) Termination and Payment.
Any termination of this Agreement by Client before the expiration
of its term shall require a ninety days notice. Otherwise,
termination mutually agreed to by both parties or expiration of this
Agreement, Client shall pay all unpaid and outstanding fees through
the effective date of termination or expiration of this Agreement. And
upon such termination, Consultant shall provide and deliver to Client
any and all outstanding services due through the effective date of the
termination. Furthermore, upon termination for any reason, the
Consultant shall be entitled to the unrestricted shares earned up
through the date of termination.
8. Miscellaneous.
(a) Independent Contractor.
This Agreement establishes an "independent contractor"
relationship between Consultant and Client. Accordingly, consultant
is obligated to render services to Client for a maximum of fifteen
(15) hours per month during the term of the Agreement, which such
hours can be performed at any time during each month.
(b) Rights Cumulative; Waivers.
The rights of each of the parties under this Agreement are
cumulative. The rights of each of the parties hereunder shall not be
capable of being waived or varied other than by an express waiver or
variation in writing. Any failure to exercise or any delay in
exercising any of such rights shall not operate as a waiver or
variation of that or any other such right. Any defective or partial
exercise of any of such rights shall not preclude any other or further
exercise of that or any other such right. No act or course of conduct
or negotiation on the part of any party shall in any way preclude such
party from exercising any such right or constitute a suspension or any
variation of any such right.
(c) Benefit; Successors Bound.
This Agreement and the terms, covenants, conditions, provisions,
obligations, undertakings, rights, and benefits hereof, shall be
binding upon, and shall inure to the benefit of, the undersigned
parties and their heirs, executors, administrators, representatives,
successors, and permitted assigns.
(d) Entire Agreement.
This Agreement contains the entire agreement between the parties
with respect to the subject matter hereof. There are no promises,
agreements, conditions, undertakings, understandings, warranties,
covenants or representations, oral or written, express or implied,
between them with respect to this Agreement or the matters described
in this Agreement, except as set forth in this Agreement. Any such
negotiations, promises, or understandings shall not be used to
interpret or constitute this Agreement.
(e) Assignment.
Neither this Agreement nor any other benefit to accrue hereunder
shall be assigned or transferred by either party, either in whole or
in part, without the written consent of the other party, and any
purported assignment in violation hereof shall be void.
(f) Amendment.
This Agreement may be amended only by an instrument in writing
executed by all the parties hereto.
(g) Severability.
Each part of this Agreement is intended to be severable. In the
event that any provision of this Agreement is found by any court or
other authority of competent jurisdiction to be illegal or
unenforceable, such provision shall be severed or modified to the
extent necessary to render it enforceable and as so severed or
modified, this Agreement shall continue in full force and effect.
(h) Section Headings.
The Section headings in this Agreement are for reference purposes
only and shall not affect in any way the meaning or interpretation of
this Agreement.
(i) Construction.
Unless the context otherwise requires, when used herein, the
singular shall be deemed to include the plural, the plural shall be
deemed to include each of the singular, and pronouns of one or no
gender shall be deemed to include the equivalent pronoun of the other
or no gender.
(j) Further Assurances.
In addition to the instruments and documents to be made, executed
and delivered pursuant to this Agreement, the parties hereto agree to
make, execute and deliver or cause to be made, executed and delivered,
to the requesting party such other instruments and to take such other
actions as the requesting party may reasonably require to carry out
the terms of this Agreement and the transactions contemplated hereby.
(k) Notices.
Any notice which is required or desired under this Agreement
shall be given in writing and may be sent by personal delivery or by
mail (either a. United States mail, postage prepaid, or b. Federal
Express or similar generally recognized overnight carrier), addressed
as follows (subject to the right to designate a different address by
notice similarly given):
To Client:
Xxxxxxx Xxxxxxxx, President
RMD Technologies, Inc.
000 Xxxx 0xx Xxxxxx
Xxxxxxxxx, Xxxxxxxxxx 00000
To Consultant:
Xx Xxxx & Company, Inc.
000 Xxxxxxx Xxxxxx
Xxx Xxxxx, Xxxxxx 00000
(l) Governing Law.
This Agreement shall be governed by the interpreted in accordance
with the laws of the State of Nevada without reference to its
conflicts of laws rules or principles. Each of the parties consents
to the exclusive jurisdiction of the federal courts of the State of
California in connection with any dispute arising under this Agreement
and hereby waives, to the maximum extent permitted by law, any
objection, including any objection based on forum non coveniens, to
the bringing of any such proceeding in such jurisdictions.
(m) Consents.
The person signing this Agreement on behalf of each party hereby
represents and warrants that he has the necessary power, consent and
authority to execute and deliver this Agreement on behalf of such party.
(n) Survival of Provisions.
The provisions contained in paragraphs 3, 5, 6, and 8 of this
Agreement shall survive the termination of this Agreement.
(o) Execution in Counterparts.
This Agreement may be executed in any number of counterparts,
each of which shall be deemed an original and all of which together
shall constitute one and the same agreement.
IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed and have agreed to and accepted the terms herein on the
date written above.
RMD Technologies, Inc.
By : /s/ Xxxxxxx Xxxxxxxx
Xxxxxxx Xxxxxxxx
Xx Xxxx & Company, Inc.
By : /s/ Xxxxxx Xx Xxxx
Xxxxxx Xx Xxxx
