CONSULTING AGREEMENT
THIS CONSULTING AGREEMENT (this "Agreement") is entered into
and is effective as of, October 5, 2009 (the "Effective Date") by
and between NASUS CONSULTING, INC. (Symbol: NSUS), a company
incorporated under the laws of Nevada, with a principal place of
business at 000 Xxxxxxxxx Xxxx, Xxxxx 000, Xxxxxxxx, Xxxxxxx 00000
("Company") and Big Apple Consulting USA, Inc., a Delaware
Corporation, with principal offices at 0000 Xxxx Xxxxx xxxx 000,
Xxxxx 000, Xxxxxxxx, Xxxxxxx 00000 ("Consultant").
R E C I T A L S:
A. Consultant maintains an extensive database of brokers
representing investors interested in owning stock in companies such
as the Company and employs a stock profiler team which regularly
communicates with such brokers.
B. Company wishes to improve its visibility in the retail
and institutional brokerage community.
T E R M S:
NOW THEREFORE, in consideration of the mutual premises and
covenants contained herein, and other good and valuable consideration,
the receipt, sufficiency and adequacy of which is hereby acknowledged,
the parties agree as follows:
1.00 Services to be Performed by Consultant
1.01 Consultant shall use its database of securities
brokerage firms and their respective registered representatives
("Brokers"), containing over 25,000 active Brokers throughout the
United States, and shall direct a profiler team to contact Brokers,
appropriately qualified according to the Company's criteria,
regarding the Company. Consultant's profilers will continue to
"cold call" Brokers on a regular basis, which will continually add
new Brokers' to the database.
1.02 Using materials at all times pre-approved by the
Company, consultant shall diligently market and promote Company
to Brokers and advisors, counselors, trustees, agents and other
entities whom Consultant is legally permitted to contact and
shall introduce Company and its principals to Consultant's current
and future network of brokerage firms and market makers.
Consultant shall promote Company on a daily basis through all of
their profilers and will train new profilers, as retained, to
promote the Company. Company understands and agrees that
Consultant's database constitutes proprietary information
owned by Consultant, however, if requested, on a bi-weekly basis
Consultant will provide Company with a total of all calls
made by Consultant's profilers.
1.03 Consultant shall provide investor lead management
and other services ("Services") that are identified and set forth
on Exhibit A attached hereto. Consultant will handle Broker inquiries
in a professional manner and will maintain a high call volume to
outside financial institutions on behalf of the Company.
In all cases, Consultant will provide periodic activity reports
to the Company.
1.04 Consultant shall organize, initiate, manage and facilitate
Broker conference telephone calls and other presentations mutually agreeable
to Company and Consultant. Expenses for Broker conference calls and other
presentations are to be paid by the Consultant, and must be pre-approved
by the Company.
1.05 Consultant shall review and monitor Company's stockholder
base and all transfer agent and DTC reports, and shall analyze, present to,
and discuss with Company the results and implications of such reports.
Company agrees to provide Consultant with all DTC reports on a weekly basis
and a NOBO lists on a reasonable basis as required to support properly,
Consultant's efforts.
1.06 Consultant shall provide Company with DTC analysis on no less
than a monthly basis, and will use its best efforts to provide said analysis
on a more frequent basis, provided Company complies with 1.05.
1.07 Company will be permitted to visit Consultant's facility on
a regular basis and will have the ability to talk in person with Consultant's
employees regarding their progress during the campaign. Consultant's
employees will be allowed to contact Company's management for weekly
conference calls and Company will be permitted to communicate with
Consultant's management with updated emails on a regular basis. However,
Company represents and warrants it will not discuss any information that
may be considered to be "insider information" with any employee of
Consultant including its upper management.
1.08 It is acknowledged and agreed by the Company that
Consultant, which term shall include its employees, does not carry
any professional licenses or memberships in any self-regulatory
organizations and is not licensed (other than maintaining an
occupational licenses) to engage in any regulated activity.
It is further acknowledged and agreed by the Company that Consultant
does not intend to render legal advice or perform accounting services
and does not intend to act as an investment advisor or a broker/dealer
within the meaning of such terms under any applicable state or
federal securities law.
1.09 Consultant may use all of Company's Intellectual
Property, as specifically pre-approved by the Company, that is
necessary for Consultant to provide the Services, including but
not limited to using Company's name, logo and trademarks on any
web site maintained by Consultant or in any promotional materials
created in providing the Services as contemplated hereunder provided
that the Company approves any such promotional materials in advance.
Company will not link any other web site to a web site maintained by
Consultant without the prior written consent of Consultant. Except
as expressly granted hereby, this Agreement does not give either
party any right, title or interest in or to the Intellectual
Property of the other party. After this Agreement has been
terminated, all right, title and interest in and to each
party's Intellectual Property shall be held solely by that party.
1.10 Company hereby appoints Consultant to provide the
Services identified in Exhibit "A", which is annexed hereto.
2.00 Terms, Fees and Escrow
2.01 The term of this Agreement shall commence on the
Effective Date and shall expire six (6) months thereafter (the
"Initial Term"). After the Initial Term, this Agreement shall
automatically renew for consecutive six (6) month terms
(the "Renewal Period"), unless sooner terminated in writing by the
Company no later than ten (10) days prior to the expiration of
the Initial Term or any Renewal Period.
2.02 Compensation: As compensation for Consultant's
services required hereunder, Consultant shall be entitled to receive:
(a) On a monthly basis Consultant shall be entitled to
receive Thirty Five Thousand U.S. Dollars ($35,000) per month due
the 1st of each month, payable in the form of cash or cashier's
check on thirty day terms from invoice date. Notwithstanding the
following, there shall be due and payable upon signing of this
Agreement $35,000 representing the first month's compensation.
Subsequent monthly payments shall be due commencing on or before
November 5, 2009.
(b) Services will be provided by Consultant from the
Effective Date.
3.00 Termination
In the event of a breach of this Agreement by Company,
Company shall be responsible for any outstanding fees and expenses.
Consultant shall have the right to terminate this Agreement on the
grounds of the Company's failure to remit the required monthly
payments or in the event of any breach of the Agreement by
Company. Company has the right to terminate this agreement with
thirty (30) days written notice. During this notice period,
Company and Consultant agree to continue to observe the terms
and conditions of this Agreement, including but not limited
to section 2 above. The parties agree that written notice will
be deemed accepted and received by the parties via certified
mail delivered to the address above and/or by fax notification
or sent via e-mail transmission.
4.00 Representations
Company represents and warrants that, to the best of its
knowledge, it has made and is in compliance with all required
filings and regulations of FINRA, the SEC and/or any other
governmental agencies known to the Company, and that the
Company's stock is not currently suspended from trading for
any reason whatsoever. Company further represents and warrants
that during the term of this agreement, it will continue to
use best professional efforts to file all required reports with
the SEC, FINRA and/or any other governmental agencies and will
continue to adhere to SEC, FINRA and/or any other governmental
agency's requirements, and that it will take whatever steps
it deems necessary to keep its shares listed and "fully
reporting" through the OTC/BB. The Company's failure to
comply with the provisions of this paragraph
shall constitute a material breach of the parties'
agreement.
Company understands that the FINRA and SEC require that
all press releases be based on fact. Therefore, Company represents
and warrants that it will maintain a filing of all press releases
with the necessary supporting documentation verifying
the contents of the press release and the Company will maintain
back up and support documents relating to every press release
that is made by or for the benefit of the Company.
4.01 Representations and Warranties of Company.
Company represents, warrants and agrees:
(a) Company has the legal capacity and authority
to execute, deliver and perform its obligations under this
Agreement. This Agreement has been duly authorized, executed
and delivered by Company and is its legal, valid and binding
agreement, enforceable against Company in accordance with
its terms. Company's execution of this Agreement and the
performance of its obligations hereunder do not conflict
with or violate the governing documents of Company or
any of its affiliates or any obligations of Company or any
of its affiliates, whether arising by contract, operation
of law or otherwise.
(b) To its knowledge, there is not a pending or
threatened action, suit or proceeding before or by any court
or other governmental body or regulatory authority to which
Company or any of its employees or affiliates is or
may be a party or any of its properties is or may be subject,
and no event has occurred that might affect Company's ability
to execute, deliver and perform its obligations under this
Agreement. Without limiting the foregoing, to its
knowledge, none of Company and Company's employees and
affiliates
i. is subject to an order of the U.S.
Securities and Exchange Commission (the "SEC") or
any other securities regulatory authority;
ii. has been convicted of any felony
or misdemeanor;
iii. has been found by the SEC or any other
securities regulatory authority to have engaged in,
or has been convicted of engaging in any
violation of state or federal securities or
the rules and regulations of any self regulatory
organization; or
iv. has been found liable in any civil
proceeding with respect to, a violation of any federal
securities law or any securities law of any other
jurisdiction, or the rules or regulations there under,
or aiding, abetting, counseling commanding, inducing
or procuring such a violation by another person.
(c) The Company believes that all offers and sales
of securities issued by Company, if any, have complied and will
comply with the securities and other laws, and the rules and
regulations there under, of each jurisdiction in which
any such offer or sale was or is made. Without limiting
the foregoing, Company has timely filed all documents
with the SEC (the "SEC Reports"). The SEC Reports comply
in all respects with the requirements of the Securities
Act of 1933, as amended, and the Securities Exchange Act
of 1934, as amended, and the rules and regulations there
under. None of the SEC Reports contains any untrue statement
of a material fact or omits to state a material fact required
to be stated therein or necessary to make the statements therein,
in light of the circumstances under which they were made, not
misleading. Company's financial statements included in the
SEC Reports comply in all respects with applicable accounting
requirements and the published rules and regulations
of the SEC, have been prepared in accordance with generally
accepted accounting principles (except, in the case of
un-audited statements, as permitted by Regulations S-X)
applied on a consistent basis (except as may be indicated
in the notes thereto), and fairly present Company's financial
position as of the dates thereof and the results of its
operations and cash flows for the periods then ended
(subject, in the case of un-audited statements, to normal
year-end audit adjustments).
(d) The Company believes that all information,
documents and other materials provided by the Company to
Consultant in connection with the Services (the "Information")
are accurate, complete, true and correct, and no such
information, documents or other material contains any untrue
statement of a material fact or omits to state the statements
therein, in light of the circumstances under which they
are made, not misleading.
(e) To the best of its knowledge, the Company
owns, or has the contractual right to use, all intellectual
property it uses in its business, including, without limitation,
all trade secrets, licenses, trademarks, service marks,
trade names, logos, brands, copyrights, patents, franchises,
proprietary technology, domain names and permits (collectively,
"Intellectual Property"). Neither Company nor any of its employees
or affiliates is in breach of any license or agreement between
Company and any third party with respect to Company's Intellectual
Property and neither Company nor any of its employees or
affiliates has infringed or is infringing on any Intellectual
Property of another party.
(f) The foregoing representations and warranties
shall continue during the term of this Agreement and if any event
occurs that could make any of the foregoing incomplete or
inaccurate; such event shall be deemed to be a material breach
by Company of this Agreement and Company immediately shall
notify Consultant of such event.
4.02. Representations and Warranties of Consultant:
Consultant represents and warrants to Company and agrees with
Company that:
(a) Consultant has the legal capacity and
authority to execute, deliver and perform its obligations
under this Agreement. This Agreement has been duly
authorized, executed and delivered by Consultant and
is its legal, valid and binding Agreement, enforceable
against Consultant in accordance with its terms.
Consultant's execution of this Agreement and the performance
of its obligations hereunder do not conflict with or
violate Consultant's governing documents or any
obligations by which 'Consultant is bound, whether
arising by contract, operation of law or otherwise.
(b) Consultant is authorized to conduct
business under the laws of each jurisdiction where it
is required to be so authorized, and shall maintain
such authorizations during the term of this Agreement
if required by applicable law to do so to provide the
Services to Company. Consultant shall provide the
Services in compliance with all applicable laws and
regulations.
(c) Consultant shall not release any information
or make any statement relating to the Company or its business
without first having received written approval from the Company.
(d) Consultant shall not perform any Services
on behalf of the Company other than those Services which
are specifically set forth on Exhibit A hereto.
5.00 Miscellaneous Terms
5.01 Successors. The provisions of this Agreement
shall be deemed to obligate, extend to and inure to the
benefit of the successors, assigns, transferees,
grantees, and indemnities of each of the parties to
this Agreement.
5.02 Governing Law. This Agreement and the
interpretation and enforcement of the terms of this Agreement
shall be governed under and subject to the laws
of the State of Florida.
5.03 Jurisdiction. Jurisdiction for court action,
court and authorities in the State of Florida or the Federal
District Court having venue for the State of Florida should
have jurisdiction over all controversies that may arise with
respect to this agreement. Company hereby waives any other
venue to which it might be entitled to by virtue of domicile
or otherwise and expressly consents and acknowledges that
the courts and authorities in the State of Florida shall
have jurisdiction.
5.04 Integration. This Agreement, after full
execution, acknowledgment and delivery, memorializes and
constitutes the entire agreement and understanding between
the parties and supersedes and replaces all prior negotiations
and agreements of the parties, whether written or unwritten.
Each of the parties to this Agreement acknowledges
that no other party, nor any agent or attorney of any other
party has made any promises, representations, or warranty
whatsoever, express or implied, which is not expressly contained
in this Agreement; and each party further acknowledges that it
has not executed this Agreement in reliance upon any belief as
to any fact not expressly recited herein above.
5.05 Attorneys Fees. In the event of a dispute
between the parties concerning the enforcement or interpretation
of this Agreement, the prevailing party in such dispute,
whether by legal proceedings or otherwise, shall be reimbursed
immediately for the reasonably incurred attorneys' fees and
other costs and expenses by the other parties to the
dispute.
5.06 Context. Wherever the context so requires,
the singular number shall include the plural and the plural
shall include the singular.
5.07 Captions. The captions by which the sections
and subsections of this Agreement are identified are for
convenience only, and shall have no effect whatsoever
upon its interpretation.
5.08 Severance. If any provision of this Agreement
is held to be illegal or invalid by a court of competent
jurisdiction, such provision shall be deemed to be severed
and deleted and neither such provision, nor its severance
and deletion, shall affect the validity of the remaining
provisions.
5.9 Counterparts. This Agreement may be executed
in any number of counterparts, each of which shall be deemed an
original and, when taken together shall constitute one and
the same instrument.
5.10 Expenses Associated With This Agreement.
Each of the parties hereto agrees to bear its own costs,
attorney's fees and related expenses associated with this Agreement.
5.11 Arbitration. Any dispute or claim arising from or
in any way related to this agreement shall be settled by arbitration
in Orlando, Florida. All arbitration shall be conducted in
accordance with the rules and regulations of the American
Arbitration Association ("AAA") except that no depositions
or interrogatories shall be permitted. AAA shall designate
a single arbitrator from an approved list of arbitrators
following both parties' review and deletion of those arbitrators
on the approved list. Each party shall pay its own expenses
associated with such arbitration. A demand for arbitration
shall be made within a reasonable time after the claim,
dispute or other matter has arisen and in no event shall
such demand be made after the date when institution of
legal or equitable proceedings based on such claim,
dispute or other matter in question would be barred
by the applicable statutes of limitations. The decision
of the arbitrator shall be binding upon the parties and
judgment in accordance with that decision may be entered
in any court having jurisdiction thereof.
5.12 Assignment. Neither Company, nor Consultant,
shall have the right to assign or delegate this Agreement or
any rights or obligations created hereby unless the non-assigning
party expressly approves the assignment in writing.
5.13 Authority to Bind. A responsible officer of
each party has read and understands the contents of this
Agreement and is empowered and duly authorized on behalf of
that party to execute it.
5.14 Continuing Obligations: Both Company and
Consultant shall hereafter execute all documents and do all
acts reasonably necessary to effect the provisions of this
Agreement.
5.15 Payment Failure: If at any time, Company
shall be in default of the payment provisions of this contract
for a period greater than five (5) days, all services provided
byConsultant under this Agreement shall be suspended until such
time as payment in full of any outstanding balance is made
and services under the Agreement shall be reinstated on the day
after the day on which payment is received. Consultant reserves
the right, at Consultant's sole option, to submit and assign any
outstanding balance to an independent third party for
the purpose of collecting any outstanding balance owed
Consultant.
5.16 Notices: All notices must be in writing and
sent to the appropriate address listed above, or to such other
address as either party may designate in writing, by first class
mail and either certified mail return receipt requested or
overnight courier service or by facsimile or e-mail.
In the case of certified mail notice shall be deemed given as
of the date of deposit with the United States Postal Service,
and in case of overnight courier service notice shall be
deemed given as of the date of deposit with such overnight
courier service.
5.17 Confidentiality: Both Consultant and Company
agree that it will not at any time, or in any fashion or manner
divulge, disclose or otherwise communicate to any person
or corporation, in any manner whatsoever, any information of
any kind, nature, or description concerning any matters
affecting or relating to the business of each others company.
This includes its method of operation, or its plans, its
processes, or other data of any kind or nature that they
know, or should have known, is confidential and not already
information that resides in the public domain. Both the
Consultant and Company expressly agree that confidentiality
of these matters is extremely important and gravely affect the
successful conduct of business of each company, and its
goodwill, and that any breach of the terms of this section
is a material breach of this Agreement. The provisions of this
section shall survive termination of the Agreement.
6.00 Conflicts of Interest
6.01 Consultant and other Consultant divisions and
associates provide services similar to the Services, as well
as other services, to other Companies, including Company's
competitors. This creates conflicts of interest over
Consultant's time devoted to providing the Services and
providing services to other Companies. Consultant will
attempt to resolve all such conflicts in a manner that
is generally fair to all of its Companies.
6.02 Certain Circumstances: Consultant assumes
no responsibility for any occurrences beyond Consultant's control.
7.00 Disclaimer of Responsibility for Acts of the Company
In no event shall Consultant be authorized or
required by this Agreement to represent or make management
decisions for the Company. Consultant shall, under no
circumstances, be made liable for any expense incurred or
loss suffered by the Company as a consequence of such
decisions by the Company or any affiliates or subsidiaries
of the Company as a result of services performed by
Consultant hereunder. CONSULTANT DISCLAIMS ANY AND ALL
WARRANTIES RESPECTING THE SERVICES AND ACTIVITIES,
INCLUDING ALL IMPLIED WARRANTIES OF NON-INFRINGEMENT,
MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
IN NO EVENT SHALL CONSULTANT BE LIABLE FOR ANY INDIRECT,
INCIDENTAL, OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR
OTHERWISE RELATING TO THE SERVICES TO BE PROVIDED UNDER THIS
AGREEMENT, HOWEVER CAUSED, EVEN IF CONSULTANT HS BEEN
ADVISED OF THE POSSIBILITY OF LIKELIHOOD OF SUCH DAMAGES.
IN NO EVENT SHALL CONSULTANT'S LIABILITY FOR
DAMAGES UNDER OR RELATING TO THIS AGREEMENT, REGARDLESS
OF HOW ARISING, EXCEED THE AMOUNT OF CASH COMPENSATION
PAID TO CONSULTANT HEREUNDER.
8.00 Limitations on Liability
The obligations of Consultant under this Agreement
are limited solely to furnishing the Services to Company.
Consultant provides the Services without warranty of any
kind, either express or implied, including but not limited
to the implied warranties of merchantability and fitness for
a particular purpose, which Consultant disclaims. Consultant
does not guarantee or make any representations or
warranties regarding the results or benefits of the Services.
Company is responsible for all information, including,
but not limited to, Company's Intellectual Property,
that is transmitted, published, distributed, presented
or otherwise disseminated in connection with or as a
result of the Services. Consultant shall not be liable to
Company or any of its shareholders, employees, officers,
directors or affiliates for any direct, indirect,
consequential, incidental, special or punitive damages,
including but not limited to lost profits, loss
of opportunity and other damages (collectively "Damages").
9.00 Independent Contractor
Consultant is and will hereafter act as an
independent contractor and not as an employee of Company,
and nothing in this Agreement may be interpreted or
construed to create any employment, partnership, joint
enture or other relationship between Consultant and Company.
Nothing contained herein shall be considered to
create an employer-employee relationship between the
Parties to this Agreement. The Company shall
not make social security, workers' compensation
or unemployment insurance payments on behalf of
Consultants. The parties hereto acknowledge and
agree that Consultant cannot guarantee the results
of any of the services rendered or to be rendered
by Consultant. 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 reasonable business efforts in
providing services to Company.
IN WITNESS WHEREOF, the parties have executed this
Agreement as of the date set forth above.
COMPANY:
Nasus Consulting, Inc.
/s/ Xxxx Xxxxxxx
By: _____________________________
Xxxx Xxxxxxx, President
CONSULTANT:
Big Apple Consulting USA, Inc.
/s/ Xxxx Xxxxxx
By: __________________________
Xxxx Xxxxxx, President
E X H I B I T "A"
SERVICES TO BE PERFORMED
At the direction of and with the consent of the Company,
Consultant has agreed to provide the services described below
under the terms and conditions set forth in
this Agreement:
A) Prepare and develop a corporate financial
website for the Company targeted at the financial community.
In the event that either the Company terminates
this Agreement at any time after its execution or the
Company is in default or breach of this Agreement for
any reason whatsoever, then CONSULTANT, at CONSULTANT's
sole option and in CONSULTANT's sole discretion, shall
have the right to discontinue the maintenance
and hosting of Company's website and, further, CONSULTANT
shall not be under any obligation to continue the
services described in this Agreement or the Exhibits
annexed hereto and, further, ownership of the content
and design of the website and domain name shall revert
back to and vest in CONSULTANT.
B) Assist Company in editing Press Releases
and keeping a calendar of Press Releases going out.
C) Prepare a comprehensive media and
publication plan for the Company's promotion
/s/ NCI & /s/BACUSA
Initials Company & Initials Consultant
