EXHIBIT 10.9
CONSULTING AGREEMENT
This agreement dated for reference the 5th day of November, 2002.
BETWEEN: Essentially Yours Industries Inc.
3960 Howard Hughes Parkway
Suite 500,
Las Vegas, NV 89109
Tel: 702.892.2956 Fax: 702.892.3950
Email:
("EYI")
AND: Flaming Gorge, Inc.
80 South Main Street
Aberdeen, ID 83210
Tel: 208.397.7224 Fax: 208.397.7225
Email: eyi@jaybiz.com
(the "Consultant")
WHEREAS:
A. EYI is engaged in the sale and marketing of health and wellness
products and requires assistance in the sale and marketing of
EYI products and services: (the "Business");
B. Consultant has the necessary experience to assist EYI and the
Business;
C. The principal of the Consultant is Jay Sargeant (the
"Principal");
NOW THEREFORE the parties hereto agree as follows:
1. APPOINTMENT
1.1 EYI hereby appoints Consultant, on a non-exclusive basis to provide
services on behalf of EYI, and Consultant hereby accepts such appointment,
all on the terms herein set out. The proposed title of the Principal whose
services are being provided via the Consultant is 'President' or such
other title as the parties shall agree upon from time to time.
2. TERM
2.1 The term of this Agreement shall be for an initial period of five (5)
years ("initial term") commencing on the date hereof. This agreement shall
automatically renew on a year to year basis at the end of the initial term
unless terminated in accordance with the provisions herein set out,
provided that the parties may negotiate an extension of this Agreement on
terms to be mutually agreed.
2.2 This Agreement shall terminate, without further notice upon:
a. The winding up or bankruptcy of Consultant or its Principal;
b. The Consultant or its Principal being found guilty of
fraud or other serious criminal offense or being declared
mentally incompetent;
c. The agreement of the Parties to so do;
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d. The Consultant being unable, for whatever reason, to
continue to provide services to EYI;
e. A material breach of the terms of this Agreement, including without
limiting the generality of the foregoing a breach by Consultant of
the provisions of Article 3.1.
2.3 Notwithstanding the foregoing either party may terminate this Agreement
without reason, upon one (1) year prior notice. Provided however,
termination of this Agreement shall not adversely affect payment of any
monies due hereunder to Consultant unless termination was due to a
material breach of this Agreement by Consultant or its Principal or due to
their fraud or other serious criminal offense.
3. SERVICES
3.1 The Consultant shall provide the following services and advice to EYI in
addition to such other services as EYI shall reasonably request and
Consultant agrees to provide, namely:
a. Consultant will perform the duties and services usually expected of
a person holding the office of President in a NV company;
b. Consultant will also supervise the officers and senior
management of EYI; the COO and CFO will report to the
Consultant;
c. Consultant will provide advice, experience and supervise
sales and marketing activities;
d. Consultant will be responsible for raising financing and
capital for the operations of EYI;
e. Consultant will provide signing authorities for legal and
financial matters of EYI;
f. Consultant will provide and perform functions and duties
of a CEO for EYI;
g. Consultant agrees to provide EYI with such further and other
services and advice as EYI shall reasonably request and the
Consultant agree to provide.
3.2 Consultant agrees to provide the services requested on a best efforts
basis each and every day during the term of this Agreement and in
particular to be available every business day of each week for
consultation with EYI. Consultant agrees to provide whatever time and
services are necessary and reasonably required by EYI in order to make the
Business a success.
4. REMUNERATION
4.1 In consideration of the efforts of Consultant to be provided herein EYI
agrees to pay to Consultant the sum of Twenty Thousand ($20,000.00) United
States Dollars per month payable on the first month following the month
that services are provided. Consultant and its Principal shall also be
entitled to bonuses, whether in stock or cash, based upon the efforts of
Consultant and the success of the Business as may be determined and agreed
upon by the Board of Directors of EYI, from time to time.
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5. RELATIONSHIP
5.1 Nothing contained herein will be construed to make the Consultant an
employee or agent of EYI. The Consultant will at all times act as an
independent contractor. The Consultant will determine the method, details,
and means of performing its services under this Agreement. The Consultant
agrees to comply with all laws, ordinances, rules, and regulations, which
are applicable to the performance of its services. The Consultant agrees
to indemnify and hold EYI harmless from all claims, damages, and expenses
resulting from the Consultant's failure to comply and his performance
hereunder. EYI may provide Consultant with authority to bind EYI to
contracts and agreements and to make representations on behalf of EYI; in
such case the authority will be set out herein or approved in writing by
resolution of the Board of Directors.
6. CONFIDENTIALITY
6.1 The Consultant acknowledges that EYI has certain rights in
certain confidential, proprietary, trade secret or technical
information including but not limited to:
a. Computer software, including, but not limited to, source
and object codes, flowcharts, algorithms, record layouts, routines,
report formats, data, compilers, assemblers, design concepts and
related documentation, manuals, and other materials whether in human
or machine readable form;
b. Discoveries, inventions, copyrights, concepts and ideas,
whether patentable or not, and including, without
limitation, the nature and result of research,
development, manufacturing, marketing, planning and any
other business activities;
c. Product specifications, formulas, designs, manufacturing processes
and methods, production machinery, quality assurance methods, binary
compensation plans, accounting systems, know-how and any other
proprietary information of any kind whatsoever;
d. Database of possible users of the Product;
All of which shall hereinafter be referred to as "Subject Information";
and
The Consultant further acknowledges that the Subject Information was
developed or acquired by EYI at considerable expense, has independent
economic value from not being known or readily ascertainable by others,
and is the subject of efforts made by EYI to maintain in secrecy; and
EYI wishes to maintain its rights to the Subject Information, and
The Consultant agrees not to, directly or indirectly, in any way, reveal,
report, publish, disclose, transfer or otherwise use any of the Subject
Information for his own personal benefit or gain or in any way other than
in the best interests of EYI.
7. COVENANTS
7.1 The Consultant covenants to EYI as follows:
a. To carry out the services performed on behalf of EYI with
due diligence and in the best interests of EYI;
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b. To exercise all reasonable effort to provide the services
to EYI on a timely basis and to perform the services in
accordance with good business practice;
c. To comply with all lawful and reasonable directions and
instructions of EYI;
d. To devote full time efforts to EYI and the success of its Business;
e. Not to become involved, directly or indirectly, during the term of
this Agreement and for a period of eighteen (18) months after
termination of this Agreement regardless of the reason for
termination, with or in any firm, corporation, business or project
that competes with the Business.
The Consultant acknowledges that the foregoing covenants are material
provisions of this Agreement and if Consultant breaches these covenants
whether by action or inaction that material harm will result to EYI and
its Business. The Consultant also acknowledges that the harm that may
result from a breach may not be fully compensated to EYI by payment of
damages and that an injunction or similar remedy may be necessary to fully
protect EYI and the Consultant agrees that EYI may obtain an injunction or
other similar relief from a Court of competent jurisdiction and that if
EYI seeks such a remedy that the Consultant will not oppose the
application of EYI.
8. NON-ASSIGNMENT
8.1 The Consultant shall not assign any of the rights or benefits granted
herein.
9. ARBITRATION
9.1 Save and except for actions for injunctive relief or similar, the Parties
shall make every effort to resolve amicably by direct, informal
negotiation any disagreement or dispute arising between them under and in
connection with this Agreement. If, after TEN (10) DAYS from the
commencement of such informal negotiations, the Parties have been unable
to amicably resolve any dispute arising out of or in connection with this
Agreement, except for actions for injunctive relief or similar, any Party
may require that the dispute be referred to and finally resolved by
Arbitration, under the rules of the American Arbitration Association (the
"Rules"), which Rules are deemed to be incorporated by reference into this
Article. The tribunal shall consist of One (1) Arbitrator. The Parties
will endeavour within TEN (10) DAYS of the matter being referred to
Arbitration to agree upon an Arbitrator, failing which the Arbitrator
shall be appointed in accordance with the Rules. The place of Arbitration
shall be Las Vegas, NV. The language of the Arbitration shall be English.
The Parties agree that the Arbitrator shall be requested to make his award
within SIXTY (60) DAYS following the later of the conclusion of the
Arbitration hearings or any exchange of final written submissions by the
Parties and further agree that the word of the Arbitrator shall be final
and binding and without appeal.
10. NOTICES
10.1 Any notice required or permitted to be given hereunder shall be
in writing and shall be effectively given if:
a. Delivered personally;
b. Sent by prepaid courier service or mail; or
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c. Sent prepaid by fax or other similar means of electronic
communication including email;
addressed to the relevant party at the address/number shown for that party
at the beginning of this Agreement.
10.2 Any notice so given shall be deemed conclusively to have been given and
received when so personally delivered or, if sent by fax, email or other
electronic communications, on the first business day thereafter, or if
sent by mail on the third business day thereafter. Any party may change
any particulars of its address/number for notice by notice to the others
in the manner above described.
11. PRINCIPAL
11.1 Jay Sargeant acknowledges that he is the principal of the Consultant, has
reviewed this Agreement, and being content therewith covenants and agrees
to cause the Consultant to comply and abide with all of the terms and
conditions of this Agreement.
12. GENERAL
12.1 Time shall be of the essence of this Agreement.
12.2 Any changes or amendments or additions to this Agreement must
be in writing and signed by both parties to be effective.
12.3 This Agreement shall be construed in accordance with the laws
of the State of Nevada and the Courts of said State sitting at Las Vegas,
NV shall have, subject to the arbitration provisions contained herein,
exclusive jurisdiction to hear all actions arising out of or in respect of
this Agreement.
12.4 Failure on the part of a party to complain of any act or failure to act of
the other party or to declare the other party in default, irrespective of
how long such failure continues, shall not constitute a waiver by such
party of any rights hereunder.
12.5 This is a complete and exclusive statement of the Agreement between the
parties, which supersedes and merges all prior proposals, understandings
and all other agreements, oral or written, between the parties relating to
this Agreement. This Agreement may not be modified or altered except by a
written instrument duly executed by both parties.
12.6 The provisions of this Agreement are severable and if any term is alleged
or invalid for any reason whatsoever such allegations or invalidity shall
not affect the validity of the remainder of this Agreement.
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12.7 This Agreement shall inure to the benefits of and be binding upon the
parties hereto and their respective successors and assigns, as permitted
herein.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement effective as
of the date first above written. Essentially Yours Industries, Inc. Flaming
Gorge, Inc.
Per: /s/ Barry LaRose Per: /s/ Jay Sargeant
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Name: Barry LaRose Name: Jay Sargeant
------------------------------- -------------------------------
Title: Secretary Title: President
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Jay Sargeant, Principal of Consultant is hereby intervened into this Agreement
and does hereby bind himself to its enforcement as of the date first above
written.
/s/ JAY SARGEANT
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Jay Sargeant
Dated as of
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