CONSULTING AGREEMENT
This consulting agreement (this "Agreement") is made this 17th day of June,
2005, between CIMBIX CORPORATION, a bulletin board public company ("CBXC"),
and ENGLOCAN LIMITED ("ENGLOCAN") a Consultant (collectively the "Parties"
and each individually a "Party").
RECITALS:
ENGLOCAN is a consultant who desire to provide consulting services to CBXC;
and
CBXC desires to retain ENGLOCAN as a marketing and feasibility consultant.
NOW THEREFORE, in consideration of their mutual promises made herein, and
for other good and valuable consideration, receipt of which is hereby
acknowledged by each Party, the Parties, intending to be legally bound,
hereby agree as follows:
I. Recitals. The Parties agree that the foregoing recitals are true
and correct and are incorporated herein by reference.
II. Engagement. CBXC hereby engages ENGLOCAN and CBXC hereby accepts
such engagement upon the terms and conditions set forth in this Agreement.
A. Duties: ENGLOCAN is engaged by CBXC as a marketing and
feasibility consultant, to represent CBXC and its business in Hong
Kong; to assist CBXC in expanding its business operations in
"business consulting" services and trade. ENGLOCAN will report
directly to the board of directors of CBXC. The term of this
Agreement begins immediately.
B. Terms: Subject to the terms of this Agreement relating
to termination, this Agreement shall continue in full force and
effect for a term of twelve (12) months from the date thereof, and
may be renewed for successive periods of twelve (12) months
thereafter by the mutual written agreement of the Parties hereto
made at least one (1) month prior to the expiration of such term.
C. Fee Structure:
1. Time is of the Essence: Time is of the essence with
respect to the Parties' respective obligations under this
Agreement.
2. Amount of Fee: CBXC hereby agrees to issue to ENGLOCAN,
and ENGLOCAN agrees to accept from CBXC, three hundred fifty
thousand (350,000) shares of common stock of CBXC, which
will be registered by CBXC on a Registration Statement Form
S-8 with the Securities and Exchange Commission.
3. Timing of Payment of Fee: CBXC shall pay and release
Shares to ENGLOCAN upon satisfaction of performance from time
to tome in stages commencing within thirty (30) days from
filing of the Registration Statement. Failure of CBXC to
finally pay any Shares within thirty (30) 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 ENGLOCAN and will be sufficient cause
for immediate termination of this Agreement by ENGLOCAN, and
such breach will cause this Agreement to be null and void.
D. Independent Contractors: In all matters relating to this
Agreement and otherwise, the Parties hereto shall be and act as
independent contractors, neither shall be the employee or agent of
the other, and each shall assume any and all liabilities for its own
acts. As a result of his independent contractor status, ENGLOCAN,
and not CBXC, shall be responsible for any and all income taxes
and any and all other employment related taxes or assessments which
may be required of ENGLOCAN in his jurisdiction. Neither Party shall
have any authority to create any obligations, express or implied, on
behalf of the other Party and neither Party shall have any authority
to represent the other Party as an employee or in any capacity other
than as herein provided.
III. Termination: This Agreement may be terminated by written notice of
either Party hereto forwarded to the other Party hereto. This Agreement shall
be binding on the Parties hereto for the Term provided herein, unless
terminated as provided herein.
IV. Arbitration: Any controversy or claim arising out of or relating
to this Agreement, or the breach thereof, or its interpretation or
effectiveness, and which is not settled between the Parties themselves, shall
be settled by binding arbitration in Washington and judgment upon the award
may be entered in any court having jurisdiction thereof. Nothing, however,
contained herein shall limit CBXC's rights to injunctive relief as set out in
Paragraph V of this Agreement. The prevailing Party in any litigation,
arbitration or mediation relating to collection of fees, or any other matter
under this Agreement, shall be entitled to recover all its costs, if any,
including without limitation, reasonable attorney's fees, from the other Party
for all matters, including, but no limited to, appeals.
V. Injunctive Relief: ENGLOCAN agrees that his violation or threatened
violation of any of the provisions of this Agreement shall cause immediate
and irreparable harm to CBXC and, in such event, an injunction restraining
ENGLOCAN from such violation may be entered against ENGLOCAN in addition to
any other relief available to CBXC.
VI. Representations and Warranties: ENGLOCAN represents, warrants,
covenants and agrees that ENGLOCAN has a right to enter into this Agreement;
that ENGLOCAN is not a Party to any agreement or understanding, whether
written or oral, which would prohibit ENGLOCAN's performance of his obligations
hereunder; and ENGLOCAN is not in possession of any proprietary information
belonging to another Party which ENGLOCAN is legally prohibited from using.
A breach of this Paragraph VI shall be ground for immediate termination of
this Agreement.
VII. Indemnification and Hold Harmless Clause: ENGLOCAN agrees to
indemnify and hold CBXC and its affiliates, control persons, directors,
officers, employees and agents (each an "Indemnified Person") harmless from
and against all losses, claims, damages, liabilities, costs or expenses,
including those resulting from any threatened or pending investigation,
action, proceeding or dispute whether or not CBXC or any such other
Indemnified Person is a party to such investigation, action, proceeding or
dispute, arising out of CBXC's entering into or performing services under
this Agreement, or arising out of any matter referred to in this Agreement.
This indemnity shall also include CBXC's and/or any such other Indemnified
Person's reasonable attorneys' and accountants' fees and out-of-pocket
expenses incurred in, and the cost of CBXC's personnel whose time is spent
in connection with, such investigations, actions, proceedings or disputes
which fees, expenses and costs shall be periodically reimbursed to CBXC
and/or to any such other Indemnified Person by ENGLOCAN as they are incurred;
provided, however, that the indemnity herein set forth shall not apply to
an Indemnified Person where a court of competent jurisdiction has made a
final determination that such Indemnified Person acted in a grossly negligent
manner or engaged in willful misconduct in the performance of the services
hereunder which gave rise to the loss, claim, damage, liability, cost or
expense sought to be recovered hereunder (but pending any such final
determination the indemnification and reimbursement provisions hereinabove
set forth shall apply and ENGLOCAN shall perform its obligations hereunder
to reimburse CBXC and/or each such other Indemnified Person periodically for
its, his or their fees, expenses and costs as they are incurred). ENGLOCAN
also agrees that no Indemnified Person shall have any liability (whether
direct or indirect, in contract or tort or otherwise) to ENGLOCAN for or in
connection with any act or omission to act as a result of its engagement under
this Agreement except for any such liability for losses, claims, damages,
liabilities or expenses incurred by ENGLOCAN is found in a final determination
by a court of competent jurisdiction to have resulted from such Indemnified
Person's gross negligence or willful misconduct.
If for any reason, the foregoing indemnification is unavailable to
CBXC or any such other Indemnified Person or insufficient to hold it harmless,
then ENGLOCAN shall contribute to the amount paid or payable by CBXC or any
such other Indemnified Person as a result of such loss, claim, damage or
liability in such proportion as is appropriate to reflect not only the
relative benefits received by ENGLOCAN and its shareholders on the one hand
and CBXC or any such other Indemnified Person on the other hand, but also the
relative fault of ENGLOCAN and CBXC or any such other Indemnified Person, as
well as any relevant equitable considerations; provided that in no event will
the aggregate contribution by CBXC and any such other Indemnified Person
hereunder exceed the amount of fees actually received by CBXC pursuant to
this Agreement. The reimbursement, indemnity and contribution obligations of
ENGLOCAN hereinabove set forth shall be in addition to any liability which
ENGLOCAN may otherwise have and these obligations and the other provisions
hereinabove set forth shall be binding upon and inure to the benefit of any
successors, assigns, heirs and personal representatives of ENGLOCAN, CBXC and
any other Indemnified Person.
The terms and conditions hereinabove set forth shall survive the
termination and expiration of this Agreement and shall continue indefinitely
thereafter.
VIII. Notice: Any notice given or required to be given under this Agreement
shall be in writing and service thereof shall be sufficient if sent be hand or
by telex or telegram, facsimile transmission or other similar means of
communication if confirmed by mail, or by certified mail, return-receipt
requested, with postage prepaid, directly to the Parties' respective addresses
herein above set forth. Each Party may, from time to time, by like written
notice, designate a different address to which notice should thereafter be
sent.
IX. Survival: The covenants contained in this Agreement shall survive the
termination of this Agreement, for whatever reason, and shall be binding on
the Parties.
X. Binding Effect: The terms of the Agreement shall be binding upon
the respective Parties hereto, their heirs, their owners, co-owners, partners,
associates, employers, affiliates, subsidiaries, parent companies, nominees,
representatives, employees, agents, consultants and successors and assigns.
XI. Assignment: This Agreement and the rights and obligations hereunder
may not be assigned or delegated by either Party without the prior consent of
the other Party.
XII. Choice of Law: This Agreement is made in Washington, and all
questions related to the execution, construction, validity, interpretation and
performance of this Agreement and to all other issues or claims arising
hereunder, shall be governed and controlled by the laws of Washington.
XIII. Venue: The state of Washington shall be proper venue for any and all
litigation and other proceeds involving this Agreement.
XIV. Counterparts: This Agreement may be signed in more than one
counterpart, in which case each counterpart shall constitute an original of
this Agreement.
XV. Severability: In the event that any term, covenant, or condition
of this Agreement or the application thereof to any Party or circumstances
shall, to any extent, be invalid or unenforceable, the remainder of this
Agreement, or the application of such term, covenant or condition to Parties
or circumstances other than those as to which it is held invalid or non
enforceable, shall not be affected thereby; and each term, covenant, or
condition of this Agreement shall be valid and shall be enforced to the
fullest extent permitted by law.
XVI. Modification: No amendment, modification, or waiver of this Agreement
or any provision hereof shall be valid unless in writing duly signed by the
Parties hereto, which writing specifically refers to this Agreement and states
that it is an amendment, modification, or waiver.
XVII. Entire Agreement: This Agreement represents the entire agreement
between the Parties to this Agreement concerning its subject matter, and any
and all prior representations and agreements with respect to such subject
matter, if any, are merged herein and are superseded by this Agreement.
XVII. Construction: Paragraph headings are for convenience only and are not
intended to expand or restrict the scope or substance of the provisions of this
Agreement. Whenever used herein, the singular shall include the plural, the
plural shall include the singular, and pronouns shall be read as masculine,
feminine, or neuter as the context requires.
ACCEPTED:
CONSULTANT CIMBIX CORPORATION
By: /s/ By: /s/ Donald Walker
------------------------ --------------------
ENGLOCAN LIMITED Donald Walker
Consultant President/Chief Executive Officer