EXHIBIT 10-11
CONSULTANT SERVICES AGREEMENT
This Agreement is made between EPIXTAR BPO SERVICES CORP. D/B/A EPIXTAR
INTERNATIONAL CONTACT CENTER GROUP LTD., a corporation organized and existing
under the laws of the State of Delaware with offices located at 11900 Biscayne
Blvd., 7th Floor, Miami, Florida 33181 ("Company"), and STEVEN RASMUSSEN, an
individual residing at 12035 Hays, Overland Park, KS 66213 ("Consultant").
Recitals
A. Company is in the business of providing Call Center Services, and in
the conduct of its business desires to have the following services, as a
consultant, to be performed by Consultant: Business Development and Broker
Services.
B. Consultant agrees to perform the services for Company under the terms
and conditions set forth in this agreement.
In consideration of the mutual promises set forth below it is agreed by
and between Company and Consultant as follows:
Section I. Nature of Services
Consultant will perform consulting and broker services on behalf of the
Company and/or any or its subsidiaries or affiliates with respect to all matters
relating to or affecting the development of new or existing business for the
Company. As a part of Consultant's services, Consultant shall submit various BPO
services and/or teleservices proposals from prospective customers to Company.
This includes submitting Company's marketing materials and proposals to
prospective customers. Company shall accept any such proposals submitted to
Company by Consultant that are within Company's capacity and ability to perform
and that Company deems commercially reasonable. Nothing in this Agreement shall
prohibit Company from marketing its services to other customer entities which
have not been introduced by Consultant.
Section II. Epixtar Designee
Company will, from time to time, and through its Chief Executive Officer or
its Chief Operating Officer, designate an officer that Consultant may
communicate through. Consultant must not incur any expense, perform any services
and/or direct any employee of Epixtar Corp. or any of its subsidiaries or
affiliates without having first contacted the designated officer to receive
permission, which for purposes of this Agreement shall initially be Executive
Vice President, Gerald Dunne.
Section III. Place of Work; Expenses
Consultant's services will be rendered largely at Consultant's place of
business, but Consultant shall, on reasonable request of Company, come to
Company's address listed above or other places designated by the Company, to
meet with representatives of the Company. Company shall reimburse Consultant for
all expenses approved in accordance with Section II of this Agreement and
incurred by Consultant in carrying out Consultant's duties under this Agreement
within thirty (30) days after Company's receipt of an invoice therefor.
Consultant shall obtain Company's written approval, by either a signed invoice
or otherwise, prior to making any transaction.
Section IV. Time Devoted to Work
In the performance of the services, the hours Consultant is to work on any
given day will be within Consultant's control and Company will rely upon
Consultant to put in such number of hours as is reasonably necessary to fulfill
the spirit and purpose of this Agreement. There undoubtedly will be some weeks
during which Consultant may not perform any services at all or, on the other
hand, may devote a substantial amount of time to work. Nevertheless, any and all
work shall be coordinated with the Epixtar Designee as set forth in Section II
of this Agreement.
Section V. Payment
On award of business to Company by a customer introduced to Company by
Consultant and accepted by Company (a "Customer"), Consultant shall assist in
the implementation of the Customer's program, using information provided by
Customers, various BPO services and/or teleservices programs, to achieve
Customers' and Company's objectives. Company will pay Consultant a set
commission percentage for each program brokered by Consultant. This commission
percentage is based on the average monthly payroll hours according to the
schedule below. For purposes of this Agreement, a "payroll hour" shall refer
only to hours that representatives/agents of Company are working on any
particular Program at any given time.
PAYROLL HOUR COMMISSION PERCENTAGE
- --------------------- ---------------------------
< $10.99 Seven Percent (7%)
$11.00 - $12.00 Eight Percent (8%)
$12.01 - $13.00 Nine Percent (9%)
$13.01 - $14.00 Ten Percent (10%)
$14.01 - $15.00 Nine Percent (9%)
> $15.01 Eight Percent (8%)
Consultant, from the date when calling commences on a program (for existing
programs, such date shall be the effective date of this Agreement) and for the
first two (2) years therefrom, shall receive One Hundred Percent (100%) of the
commission percentage in the table above for such program. Beginning in year
three (3) of a program,
Consultant shall receive Seventy-five Percent (75%) of the Commission Percentage
listed above for such program. In the event this Agreement is renewed in
accordance with Section VII herein, in years four (4) and years five (5) of a
program, Consultant shall be paid Fifty Percent (50%) and Twenty-five Percent
(25%) respectively, of the Commission Percentage listed above for such program.
Any and all commissions due Consultant shall be payable through the earlier of
(i) the termination of any specific program or, (ii) the termination of this
Agreement.
Section VI. Payment Terms
Company will directly pay to Consultant all fees due within thirty (30) days
of receipt by Company of a Customer's paid invoice statement. Company will
provide Consultant, on a monthly basis, with a copy of all Customer invoices for
each Program that Consultant is entitled to receive payment upon. Consultant
warrants that beginning on December 1, 2004 he shall no longer accept commission
payments from IMS or its subsidiaries. In the event it is found that Consultant
has accepted commission payments from IMS or its subsidiaries, said payments
will be set-off from succeeding commission payments due Consultant by Company.
Section VII. Term
Unless earlier terminated as set forth herein, this Agreement will run for
three (3) years from its effective date, and shall be automatically renewed for
successive one-year terms unless either party gives written notice of
termination thirty (30) days prior to any expiration date.
Section VIII. Status of Consultant
This Agreement calls for the performance of the services of Consultant as an
independent contractor and Consultant will not be considered an employee of
Company for any purpose.
Section VIX. Services for Others
In as much as Consultant will acquire or have access to information which is
of a highly confidential nature, it is expected that Consultant will not perform
any Similar Services for any new company or firm that he has not previously done
work for in the past twelve (12) months without Company's prior written consent.
This exclusivity requirement shall remain in effect for a period of three (3)
years from the effective date of this Agreement. "Similar Services" as used
herein shall mean brokerage services for the business of providing inbound
and/or outbound telephone call center services in the United States, the
Philippines and India. This restriction shall automatically terminate if
Consultant terminates this Agreement due to Company's default.
Section X. Services after Termination
Consultant agrees that, for a period of two (2) years following the
termination of this agreement, Consultant will not perform any Similar Services
for any person, firm or corporation engaged in the business of providing call
center services in the United States, the Philippines and India. This
restriction shall automatically terminate if Consultant terminates this
Agreement due Company's default.
In the event that a Customer terminates the Customer's relationship with
Company as a result of a default by Company, the foregoing restrictions in
Sections VIII and IX shall not apply with respect to such Customer, and
Consultant may provide Similar Services with regard to such Customer to any
other person, firm or entity.
Section XI. Termination
If this Agreement is terminated for any reason other than a breach by
Consultant of the terms and conditions contained herein, Company shall remain
liable for any and all commissions owed to Consultant from the effective date of
termination and up until that time that the Program(s) is(are) terminated.
Section XII. Waiver
The failure of either party at any time to enforce any rights or remedy
available to it under this Agreement or otherwise with respect to any breach or
failure by the other party shall not be construed to be a waiver of such right
or remedy with respect to any other breach or failure by the other party.
Section XIII. Severability
In the event that provisions of or restrictions contained in this Agreement
are held by a court of competent jurisdiction to be invalid or unenforceable,
and are not reformed by such court, the remaining provisions and restrictions
contained in this Agreement shall nevertheless continue to be valid and
enforceable as though the invalid or unenforceable provisions or restrictions of
this Agreement had not been included.
Section XIV. Notices
Any notices or demands given pursuant to this Agreement or under any statute
shall be given in writing by facsimile, e-mail or similar communication, or by
certified mail, return receipt requested at the following addresses:
To Company at: Epixtar BPO Services Corp. d/b/a Epixtar International Contact
Center Group Ltd.
Attn: Office of the Corporate Secretary
11900 Biscayne Blvd.
Suite 700
Miami, FL 33181
Tel #: (305) 503-8600
Fax #: (305) 503-8610
To Consultant at: Steven Rasmussen
12035 Hays
Overland Park, KS 66213
Tel #:
Fax #:
Section XV. Construction
Each and every term and provision of this Agreement has been mutually agreed
to and negotiated by the parties hereto and should be construed simply according
to its fair meaning and not strictly for or against any party.
Section XVI. Governing Law and Arbitration
This Agreement shall be governed by and construed in accordance with the
laws of the State of Florida. Any dispute, controversy or claim arising out of,
in connection with, or relating to this Agreement or any breach or alleged
breach hereof, shall be settled by arbitration in Miami-Dade County, Florida
pursuant to the rules then in effect of the American Arbitration Association, or
at any place or under any other form of arbitration mutually acceptable to both
parties. Any award rendered shall be final and conclusive upon the parties and a
judgment thereon may be entered in the highest court of the forum having
jurisdiction. In the event there is any litigation between the parties arising
directly and/or indirectly out of this Agreement or the transactions and
services contemplated hereby, the prevailing party in such litigation shall be
entitled to recover from the other litigation costs and expenses, including
reasonable attorneys' fees.
Section XVII. Assignment
This Agreement may not be assigned by either party without the prior written
consent of the other party, which consent may be given or withheld in the sole
and absolute discretion of such other party. This section in no way prevents
Company assigning this Agreement to a subsidiary controlled by Company or an
affiliate under control of a common parent. Any assignment by Company pursuant
to this Section shall not release Company as guarantor of the payments as
contemplated in this Agreement.
Section XVIII. Modification
This Agreement may not be modified or altered in any respect unless
evidenced in writing, signed by both parties and attached hereto. No oral
waivers of this provision shall be binding.
Section XIX. Headings
The headings and titles herein have been inserted for reference only and
shall not have the effect of modifying the express terms and provisions
contained in this Agreement.
IN WITNESS WHEREOF, this Agreement is signed on behalf of Epixtar
International Contact Center Group Ltd. and Steven Rasmussen by its authorized
representatives.
EPIXTAR INTERNATIONAL CONTACT CENTER STEVEN RASMUSSEN
GROUP LTD.
By_/s/ David Srour____________________ By_/s/ Steven
Rasmussen_____________________________
Date_11/29/04_______________________ Date11/29/04__________________________