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 DOREEN COSGROVE ("COSGROVE") a Consultant (collectively the "Parties"
and each individually a "Party").
RECITALS:
COSGROVE is a consultant who desire to provide consulting services to CBXC;
and
CBXC desires to retain COSGROVE 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 COSGROVE and CBXC hereby accepts
such engagement upon the terms and conditions set forth in this Agreement.
A. Duties: COSGROVE is engaged by CBXC as a marketing and
feasibility consultant, to represent CBXC and its business in
Australia; to assist CBXC in expanding its business operations in
"business consulting" services and trade. COSGROVE 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 COSGROVE, and
COSGROVE 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
COSGROVE upon satisfaction of performance from time to time 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 COSGROVE and will be sufficient cause for
immediate termination of this Agreement by COSGROVE, 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, COSGROVE, 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 COSGROVE 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: COSGROVE 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
COSGROVE from such violation may be entered against COSGROVE in addition to
any other relief available to CBXC.
VI. Representations and Warranties: COSGROVE represents, warrants,
covenants and agrees that COSGROVE has a right to enter into this Agreement;
that COSGROVE is not a Party to any agreement or understanding, whether
written or oral, which would prohibit COSGROVE's performance of his
obligations hereunder; and COSGROVE is not in possession of any proprietary
information belonging to another Party which COSGROVE 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: COSGROVE 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 COSGROVE 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 COSGROVE 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). COSGROVE also agrees that
no Indemnified Person shall have any liability (whether direct or indirect,
in contract or tort or otherwise) to COSGROVE 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 COSGROVE 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 COSGROVE 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 COSGROVE 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 COSGROVE 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
COSGROVE hereinabove set forth shall be in addition to any liability which
COSGROVE 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 COSGROVE, 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/ Doreen Cosgrove By: /s/ Don Walker
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Doreen Cosgrove Donald Walker
Consultant President/Chief Executive Officer