Attached files
Exhibit 10.5
CONSULTING AGREEMENT
This Agreement made with effect from 14st day of October 2010 (the "Effective
Date"), among:
ADD- ON (Add-On Exchange INC.), a company having an office at address:
410 Park Avenue, Suite 1981,New York, NY, 10022 (the "Company")
And:
STRATEGIC MANAGEMENT CONSULTANCY LLC, a New York company, having an
address at REDACTED ("strategic")
(Strategic referred to as "Consultant")
Whereas:
1. The Company has agreed to retain Strategic to provide certain consulting
services as outlined in Appendix 1 ("Service" or the "Services") and
Strategic has agreed to provide such services to the Company in accordance
with the terms and conditions contained herein;
2. Strategic will, through the services of the Contractor, perform the
Services to be provided by Strategic to the Company; and
3. The Company has also requested that Strategic and the Contractor commit to
obligations of confidentiality as a condition to being engaged to perform
the Services and Strategic and the Contractor have agreed to do so;
NOW THEREFORE THIS AGREEMENT WITNESSES THAT in consideration of the mutual
promises and covenants herein contained the parties hereby covenant and agree as
follows:
GENERAL TERMS AND CONDITIONS
DEFINITIONS
1. Unless the context requires otherwise, the following terms shall have the
meanings set out below when used in this Agreement:
A) "CONFIDENTIAL INFORMATION" means trade secrets and other information,
in the possession of or owned by Add-on or companies or organizations
affiliated, associated or related to Add-on, or by their respective
suppliers, customers, or other existing or potential business partners
and collaborators, that is not generally known to the public and
including, without limitation, all Developments, research results, and
related documentation, financial information, legal, corporate,
marketing, product, technical, manufacturing, personnel, customer, and
supplier information and any other information, in whatever form or
media, specifically identified as confidential by Add-on, the nature
of which is such that it would generally be considered confidential in
the industry in which Add-on operates, or that Add-on is obligated to
treat as confidential or proprietary;
B) "DEVELOPMENTS" means all inventions, improvements, enhancements,
modifications, discoveries, formulae, processes, ideas, techniques,
systems, methods, algorithms, Deliverables, computer software, and any
other direct or indirect results of the Services or other work
performed by Consultant for Add-on; and
C) "SERVICES" means the services to be performed by Consultant under this
Agreement, as may be specified in Schedule "1" to this Agreement, and
which shall include, without limitation, the delivery to Add-on of all
Deliverables.
PARTICULARS OF SERVICES
2. GENERAL OBLIGATIONS OF THE PARTIES - Consultant shall perform the Services
and Add-on shall pay Consultant for the Services in accordance with the
terms and conditions set out in this Agreement, including in Schedule "1"
hereto.
3. NATURE OF DELIVERABLES - "SERVICES" also includes, without limitation, the
delivery to Add-on of all Deliverables. If the Deliverables include any
item(s) of software, the Deliverables shall be deemed to include, in both
source code and object code forms, the final version and all preliminary
versions of the software and all routines and subroutines, as well as all
program material, flowcharts, models, notes, outlines, work papers,
descriptions, and other documents created or developed in connection
therewith, the resulting screen formats and other visual effects of the
software.
4. TERM OF AGREEMENT - This Agreement shall be deemed to have come into force
and effect as of the reference date set out above and continues in effect
until the end of the Term identified in Schedule "1" .
5. PROJECT MANAGER - The Project Manager (as identified in Schedule "1") shall
be Consultant's primary contact at Add-on.
6. PAYMENT - As full and complete consideration for the performance of the
Services, Add-on shall pay Consultant the Fees set out in Schedule "1".
Add-on shall pay fees due to Consultant within thirty (7) calendar days
after receipt by Add-on of an invoice which provides the information
required in the following section.
7. INVOICES - Each invoice submitted to Add-on by Consultant shall detail the
Fees payable, which will be presented as a monthly invoice and will include
any applicable taxes where relevant.
8. REIMBURSEMENT OF EXPENSES - Consultant may submit invoices for a
reimbursable expense for up to ninety days after the expense is incurred.
Each such invoice must be accompanied by the appropriate receipts. Add-on
shall reimburse such expenses within thirty (7) calendar days after receipt
by Add-on of proper invoices and receipts. Add-on shall have no obligation
to reimburse Consultant for any expense that is not submitted to Add-on in
accordance with this section.
INDEPENDENT CONTRACTOR STATUS
9. NATURE OF RELATIONSHIP - Consultant shall perform the Services as an
independent contractor and not as an employee. Nothing contained in this
Agreement shall be construed to create or imply a joint venture,
partnership, principal-agent, or employment relationship between the
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parties. Unless the Project Manager specifically authorizes Consultant in
writing to do so, Consultant shall not act or purport to be acting as the
legal agent of Add-on, and Consultant shall not enter or purport to enter
into any agreement on behalf of Add-on or otherwise bind or purport to bind
Add-on or cause Add-on to incur liability in any manner whatsoever.
WARRANTIES AND INDEMNIFICATION
10. REPRESENTATIONS AND WARRANTIES - Consultant represents and warrants to, and
covenants with, Add-on that:
ABILITY TO PERFORM SERVICES
a) Consultant has the absolute right to make the assignments of the
right, title, and interest in and to the Developments contemplated in
this Agreement;
QUALITY OF PERFORMANCE
b) the Services will be performed in a competent and professional manner;
c) Consultant shall, in exercising his powers and performing his
functions, act honestly and in good faith and in the best interests of
the Company, shall exercise the care, diligence and skill of a
reasonably prudent person, shall devote such business time to the
business and affairs of the Company as may be required under the
conditions stipulated in Schedule 1 to discharge his duties, and
perform faithfully and efficiently such responsibilities;
d) any Deliverable supplied under this Agreement shall have no material
inherent defects, shall, at the time of its delivery, conform to and
operate in accordance with all specifications for such Deliverable as
may be set out in Schedule "1" or otherwise provided to Consultant by
Add-on and all specifications for such Deliverable generated by
Consultant and approved by Add-on;
PART-TIME BASIS
e) the Company acknowledges that Consultant provides services to other
parties and Consultant covenants to provide the Services to the
Company as stipulated in Schedule 1;
THIRD PARTIES
f) the performance of this Agreement will not breach any other agreement
entered into by Consultant or by which Consultant is bound;
g) all Developments will be original to Consultant and, to the best of
Consultant's knowledge, will not infringe the intellectual property
rights or other rights of any third party;
TERMINATION OF AGREEMENT
11. TERMINATION OF AGREEMENT FOR CONVENIENCE - Notwithstanding any other
provision in this Agreement, either Add-on or Consultant may terminate this
Agreement at any time for convenience provided that either such party
delivers to the other written notice of its intention to do so at least
ninety (90) calendar days prior to the effective date of termination.
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12. PAYMENT UPON TERMINATION FOR CONVENIENCE - If Add-on terminates this
Agreement for convenience, Add-on shall pay Consultant up to the effective
date of termination of this contract as set out in schedule "1".
13. TERMINATION OF AGREEMENT WITH CAUSE - Notwithstanding any other provision
in this Agreement, Add-on may terminate this Agreement effective
immediately upon delivery of notice of termination to Consultant if:
a) Consultant becomes insolvent, or a receiver or receiver-manager is
appointed for any part of the property of Consultant, or Consultant
makes an assignment, proposal, or arrangement for the benefit of its
creditors or Consultant files an assignment in bankruptcy, or any
proceedings under any bankruptcy or insolvency laws are commenced
against Consultant.
14. PAYMENT UPON TERMINATION FOR CAUSE - If Add-on terminates this Agreement
for any cause whatsoever, it shall pay to Consultant all monies up to and
including the last month of the term set out and described as "termination
date" in schedule "1". This is regardless as to whether Add-on wishes to
dispense of the services during any part of the set time laid out in
schedule "1" as being between the start date and termination date.
15. RETURN OF MATERIALS, EQUIPMENT, AND CONFIDENTIAL INFORMATION - Upon
termination or expiration of this Agreement, or at any time upon request by
Add-on, Consultant shall immediately deliver up to Add-on, at Consultant's
own expense and risk,
a) all Developments in Consultant's possession, charge, control, or
custody; and
b) all Confidential Information and all copies thereof, and all other
materials, documents, information, contracts, equipment, materials,
and property, in Consultant's possession, charge, control, or custody
that are owned by, or related in any way to the business or affairs of
Add-on.
Consultant shall return any equipment, materials, or property furnished by
Add-on to Consultant in the same condition in which they were furnished by
Add-on, reasonable wear and tear excepted. Add-on agrees to reimburse the
Consultant for any reasonable shipping costs incurred to comply with the
foregoing.
CONFIDENTIALITY
16. CONFIDENTIAL INFORMATION - Consultant acknowledges that in order to enable
Consultant to perform the Services, Add-on will disclose to Consultant, or
allow Consultant access to, Confidential Information. Consultant further
acknowledges that such information is of significant value to Add-on.
17. EXCLUSION - The non-disclosure obligations of Consultant under this
Agreement shall not apply to Confidential Information that Consultant can
establish:
a) is, or becomes, readily available to the public other than through a
breach of this Agreement;
b) is disclosed, lawfully and not in breach of any contractual or other
legal obligation, to Consultant by a third party; or
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c) through written records, was known to Consultant, prior to the date of
first disclosure of the Confidential Information to Consultant by
Add-on.
18. OWNERSHIP OF CONFIDENTIAL INFORMATION - Consultant acknowledges that
Confidential Information is and shall be the sole and exclusive property of
Add-on or its designate and that Consultant shall not acquire any right,
title, or interest in or to any Confidential Information.
19. DISCLOSURE - Consultant shall keep all Confidential Information strictly
confidential and shall take all necessary precautions against unauthorized
disclosure of the Confidential Information during the term of this
Agreement and thereafter. Without limitation, Consultant shall not,
directly or indirectly, disclose, allow access to, transmit or transfer
Confidential Information to a third party without Add-on's consent.
Notwithstanding the foregoing, to the extent that Consultant can establish
it is required by law to disclose any Confidential Information, it shall be
permitted to do so, provided that notice of such requirement to disclose is
first delivered to Add-on, so that it may contest such potential
disclosure.
20. USE AND REPRODUCTION - Consultant shall not use or reproduce Confidential
Information in any manner except as reasonably required to fulfil the
purposes of this Agreement. Consultant shall ensure that any such copies of
Confidential Information are clearly marked or otherwise identified as
confidential and proprietary to Add-on, and that all Confidential
Information and copies thereof are stored in a secure location while in
Consultant's possession, control, charge, or custody.
21. BREACH NOTIFICATION - If for any reason Consultant does not comply with or
anticipates that it will be unable to comply with the confidentiality and
privacy provisions of this Agreement in any respect, or if Consultant
becomes aware of an actual, anticipated, or threatened breach of security
of or misuse of any Confidential Information (an "INCIDENT"), Consultant
shall promptly notify Add-on of the particulars of the Incident and of the
steps it proposes to take to prevent the occurrence or recurrence of any
further Incident.
22. PERSONAL INFORMATION - Consultant shall (i) collect, use, disclose, and
retain Personal Information only as required to fulfil its obligations
hereunder, (ii) take appropriate measures to ensure the privacy and
security of all Personal Information, including taking measures to prevent
unauthorized access, collection, use, disclosure, copying, modification, or
disposal, and (iii) comply with all applicable laws or regulations related
to privacy or data protection. In this Agreement, "PERSONAL INFORMATION"
means information about an identifiable individual that is transferred to,
collected or compiled by, or otherwise held or accessed by Consultant for
or on behalf of Add-on.
OWNERSHIP OF DEVELOPMENTS AND LICENSING OF CONSULTANT'S PROPERTY
23. OWNERSHIP OF DEVELOPMENTS - Add-on shall be the exclusive owner of the
Developments and of all intellectual property rights in and to such
Developments. Consultant hereby assigns to Add-on all right, title, and
interest throughout the world, including without limitation, all copyright,
trade-marks, trade secrets, patent rights, and any other intellectual
property right in and to each Development, effective at the time each is
created. Consultant covenants that Consultant shall not, either during the
term of this Agreement or thereafter, directly or indirectly, contest, or
assist any third party to contest, Add-on's ownership of the Developments
or of any intellectual property rights related thereto. Consultant hereby
waives his or her moral rights in each Development, effective at the time
any such particular Development is created.
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24. DISCLOSURE OF DEVELOPMENTS - Consultant agrees to make full and prompt
disclosure of all Developments to the Project Manager.
MISCELLANEOUS
25. INFORMATION REGARDING AGREEMENT - Consultant shall not, without the prior
written consent of Add-on, disclose or advertise in any manner the nature
of the Services performed under this Agreement or the fact Consultant has
entered into this Agreement with Add-on.
26. ASSIGNMENT, SUBCONTRACTING, AND SUCCESSION - Consultant shall not assign
this Agreement or subcontract or purport to assign or subcontract any of
Consultant's rights or obligations under this Agreement without first
obtaining Add-on's written consent. If such consent is given on any
particular occasion, it shall still be required for all subsequent
assignments and subcontracts. Add-on may assign this Agreement or its
rights hereunder, in whole or in part. This Agreement shall be binding upon
the parties hereto and their respective lawful successors and permitted
assigns.
27. SEVERABILITY - If any one or more of the provisions of this Agreement shall
for any reason be held to be illegal, in any respect, any such provision
shall be severable from this Agreement, in which event this Agreement shall
be construed as if such provision had never been contained herein.
28. NOTICE - Any notices, reports, or other communications required or
permitted to be given under this Agreement shall be in writing and shall be
sufficient if delivered by hand or sent by double registered mail, courier,
or facsimile addressed to Add-on or Consultant at their respective
addresses shown on the first page of this Agreement, to the attention of
the Project Manager in the case of Add-on, or to such other address or
individual as one party advises the other party in writing. Any such
notices, reports, or other communications shall be deemed to have been
received by the party(ies) to whom they were addressed upon delivery by
hand, double registered mail, courier, or facsimile (provided that the
receiver acknowledges receipt of the facsimile in some fashion) when
received.
29. SURVIVAL - Any provision of this Agreement that expressly states it is to
continue in effect after termination or expiration of this Agreement, or
that by its nature would survive the termination or expiration of this
Agreement, shall do so.
30. GOVERNING LAW - This Agreement shall be governed by and interpreted in
accordance with the laws of the province of New York, excluding rules of
private international law that lead to the application of the laws of any
other jurisdiction. The courts of New York shall have the non-exclusive
jurisdiction to hear any matter arising in connection with this Agreement.
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31. COUNTERPARTS - This Agreement may be executed in counterparts, or facsimile
counterparts, each of which when executed by either of the parties shall be
deemed to be an original and such counterparts shall together constitute
one and the same Agreement.
The parties executed this Agreement on the date(s) set out below after having
the opportunity to discuss this Agreement with their legal advisors. Each party
represents and warrants that its respective signatory is duly authorized to
execute this Agreement on its behalf.
ADD-ON STRATEGIC MANAGEMENT CONSULTANCY LLC.
By: /s/ John Rafuse By: /s/ Malcolm Myers
-------------------------------- ---------------------------------
Name: John A Rafuse Name: Malcolm Myers
-------------------------------- ---------------------------------
Title: CEO Title: Member
-------------------------------- ---------------------------------
Date: October 15th, 2010 Date: October 16 2010
-------------------------------- ---------------------------------
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SCHEDULE "1"
PARTICULARS OF CONSULTING AGREEMENT
BETWEEN ADD-ON
AND STRATEGIC MANAGEMENT CONSULTANCY LLC.
1. SERVICES:
(a) Description of Services:
Services and duties will include, but are not limited, the following:
* Advise the Project Manager and Board of Directors on matters
related to finance, operations and corporate strategy.
* Liaise with auditors, accountants and lawyers as directed by the
Company.
* Development and help In the process and delivery of improved
management information to all elements of the Company, as
directed by the Company.
* Oversee the development and implementation of operational
policies and procedures as directed by the Company.
* Attend and represent the Company at meetings as required
* Advise and help in obtaining further investor finance from 3rd
parties as and when the company requires.
* Operate and maintain office in New York.
(b) Locations(s) where work to be performed: The Services will be
primarily performed at the Consultant's offices located in Monroe ,
NY.
2. TERM:
(a) Start Date: From the signing of this contract $250.00 per month until
the earlier of a) the first day the company obtains a trading symbol
on a recognised stock exchange or b) the company obtains investor
funding of $1million ($1,000,000.00 us dollars).
(b) Termination Date: Three years from start date of either a) or b)
above, (36 calendar months).
(c) Renewal: From termination date to be reviewed annually. Notice of
renewal or intent not to renew to be provided 90 days in advance of
termination date
3. PROJECT MANAGER:
Mr. John Rafuse, President & CEO
4. FEES:
The "Fees" for the Services provided will be $10,000 per month (plus
applicable taxes) commencing on the earliest of either a) or b) as defined
in paragraph Term, above .
5. STOCK OPTIONS
There are NO stock options.
6. EXPENSES
Company shall reimburse Consultant for all reasonable travel (airfare,
accommodation and meals), phone, fax, supplies, courier, mileage, parking,
etc. expenses incurred in relation to performing Services under this
Agreement, including those relating to meetings with Add-on or third
parties and presentations on behalf of Add-on
