Exhibit 10.19
Professional Services Agreement By And Between
Faber West Construction and
Execute Sports, Inc.
This Professional Services Agreement (the "Agreement") is made and effective
this May 15, 2005 by and between Faber West Construction, a __________
corporation ("Faber") with offices located at ____________ and Execute Sports,
Inc., a Nevada Corp, ("Execute Sports") with its offices located at 1284 Puerta
Del Sol, San Clemente, CA 92673.
WHEREAS, Execute Sports desires for Faber to provide it with design and contract
work related to the development and construction of its trade show booth
equipment at industry trade shows that it chooses to participate in,
NOW, THEREFORE, in consideration of the foregoing and of the mutual promises set
forth herein, the parties agree to the forgoing terms and conditions:
1. SERVICES
Faber agrees to consult with Execute Sports regarding the development of trade
show booths and related equipment, and to provide it with its expertise in the
construction and set-up of said trade show booths (hereinafter referred to as
the "Services"). Execute Sports agrees that Faber shall have ready access to
Execute Sports' staff and resources as necessary to perform the Faber's services
provided for by this contract.
2. CONSULTING AND SERVICES PERIOD
2.1. Basic Term
Execute Sports hereby retains Faber and Faber agrees to render to the
Execute Sports those services described Section 1 for the period (the
"Consulting and Services Period") commencing on the date of this Agreement
and ending upon the earlier of (i) May 15, 2007, (the "Term Date"), and
(ii) the date the Consulting Period is terminated in accordance with
Section 6. Execute Sports shall pay Faber the compensation to which it is
entitled under Section 4 through the end of the Consulting and Services
Period, and, thereafter, Execute Sport's obligations hereunder shall end.
3. DUTIES AND RESPONSIBILITIES
Faber hereby agrees to provide and perform for Execute Sports those services set
forth in Section 1. Faber shall devote its best efforts to the performance of
the services and to such other services as may be reasonably requested by
Execute Sports and hereby agrees to devote, unless otherwise requested in
writing by Execute Sports, sufficient time required to design and provide
construction services for any and all trade booths that Execute Sports notifies
Faber that it needs, provided, however, that Execute Sports shall provide Faber
with no less than 45 days notice prior to the date in which the trade show
booths are required to be completed.
4. COMPENSATION AND EXPENSES
4.1. Compensation
In consideration of the services to be rendered hereunder, including,
without limitation, services to any Affiliated Company, Faber shall be paid
in 120,000 shares of the Company's common stock, with registration rights,
payable at the execution of this Agreement.
4.2. Expenses
Execute Sports shall reimburse Faber for reasonable travel and other
business expenses incurred by its Agents in the performance of the duties
hereunder in accordance with Execute's general policies, as they may be
amended from time to time during the course of this Agreement.
5. INVOICING
Execute Sports shall pay the amounts agreed to herein upon receipt of invoices
which shall be sent by Faber, and Execute Sports shall pay the amount of such
invoices to Faber.
6. TERMINATION OF CONSULTING RELATIONSHIP
6.1. By the Company or the Consultant
At any time, either the Execute Sports or Faber may terminate, without
liability, the Consulting and Service Period for any reason, with or
without cause, by giving 30 days advance written notice to the other party.
If the Faber terminates its consulting relationship with Execute Sports
pursuant to Sections 1,2 and 3, Execute Sports shall have the option, in
its complete discretion, to terminate Faber immediately without the running
of any notice period. Execute Sports shall pay Faber any outstanding
compensation to which Faber is entitled pursuant to Section 4 and 5 through
the end of the Consulting and Service Period, and thereafter all
obligations of Execute Sports shall terminate.
7. TERMINATION OBLIGATIONS
Faber hereby acknowledges and agrees that all property, including, without
limitation, all books, manuals, records, reports, notes, contracts, lists,
blueprints, and other documents, or materials, or copies thereof, Proprietary
Information, and equipment furnished to or prepared by Faber or its Agents in
the course of or incident to its rendering of services to Execute Sports,
including, without limitation, records and any other materials pertaining to
Invention Ideas belong to Execute Sports and shall be promptly returned to the
Execute Sports upon termination of the Consulting and Services Period. Following
termination, neither Faber nor any of its Agents will retain any written or
other tangible material containing any Proprietary Information.
The representations and warranties contained herein and Faber's obligations
under Sections 1, 2 and 3 shall survive termination of the Consulting and
Services Period and the expiration of this Agreement.
8. CONFIDENTIAL INFORMATION
Faber shall hold in trust for the Execute Sports hereto and shall not disclose
to any third party to the Agreement, any confidential information of Execute
Sports. Confidential information is information which relates to Execute Sports'
research, development, trade secrets or business affairs, but does not include
information which is generally known or easily ascertainable by non-parties of
ordinary skill in computer systems design and programming.
Faber hereby acknowledges that during the performance of this contract, Faber
may learn or receive confidential information and therefore Faber hereby
confirms that all such information relating to the client's business will be
kept confidential by Faber, except to the extent that such information is
required to be divulged to the consultant's clerical or support staff or
associates in order to enable Faner to perform Faber's contract obligation.
a) Faber shall take all reasonable precautions to prevent any other person
with whom Faber is or may become associated from acquiring confidential
information at any time.
b) Faber agrees that all confidential information shall be deemed to be
and shall be treated as the sole and exclusive property of Execute
Sports.
c) Upon termination of this contract, Faber shall deliver to Execute
Sports all drawings, manuals, letters, notes, notebooks, reports, and
all other materials (including all copies of such materials), relating
to such confidential information which are in the possession or under
the control of Faber.
9. STATUS OF CONSULTANT
Faber is an independent contractor and neither Faber nor Faber's staff is or
shall be deemed to be employed by Execute Sports. Execute Sports is hereby
contracting with Faber for the services described in Section 1. Faber is not
required to perform the services during a fixed hourly or daily time and if the
services are performed at the Execute Sport's premises, then Faber's time spent
at the premises is to be at the discretion of Faber; subject to Execute Sport's
normal business hours and security requirements. The order or sequence in which
the work is to be performed shall be under the control of Faber. Faber's
services hereunder cannot be terminated or cancelled short of completion of the
services agreed upon except for Faber's failure to perform the contract's
specification as required hereunder and conversely, subject to Execute Sport's
obligation to make full and timely payment(s) for Faber's services. Faber shall
be obligated to complete the services agreed upon and shall be liable for
non-performance of the services to the extent and as provided in Sections 1 and
3 hereof. Execute Sports shall not provide any insurance coverage of any kind
for Faber or Faber's staff.
10. COMPANY REPRESENTATIVE
Don Dallape shall represent Execute Sports during the performance of this
contract with respect to the services and deliverables as defined herein and has
authority to execute written modifications or additions to this contract.
11. DISPUTES
Any disputes that arise between the parties with respect to the performance of
this contract shall be submitted to binding arbitration by the American
Arbitration Association, to be determined and resolved by said Association under
its rules and procedures in effect at the time of submission and the parties
hereby agree to share equally in the costs of said arbitration.
The final arbitration decision shall be enforceable through the courts of the
state of California. In the event that this arbitration provision is held
unenforceable by any court of competent jurisdiction, then this contract shall
be as binding and enforceable as if this Section 11 were not a part hereof.
12. TAXES
Faber shall be responsible for any taxes or penalties assessed by reason of any
claims that Faber is an employee of Execute Sports and Execute Sports and Faber
specifically agree that Faber is not an employee of Client.
13. LIABILITY
Faber warrants to Execute Sports that the consulting and services to be
delivered or rendered hereunder, will be of the kind and quality designated and
will be performed by qualified personnel. Faber makes no other warranties,
whether written, oral or implied, including without limitation, warranty of
fitness for purpose or merchantability. In no event shall Faber be liable for
special or consequential damages, either in contract or tort, whether or not the
possibility of such damages has been disclosed to Faber in advance or could have
been reasonably foreseen by Faber, and in the event this limitation of damages
is held unenforceable then the parties agree that by reason of the difficulty in
foreseeing possible damages all liability to Company shall be limited to
$100,000 as liquidated damages and not as a penalty.
14. ENFORCEABLE
The provisions of this Agreement shall be enforceable notwithstanding the
existence of any claim or cause of action of the Faber against Execute Sports
whether predicated on this Agreement or otherwise.
15. REPRESENTATIONS AND WARRANTIES
Faber represents and warrants (i) that Faber has no obligations, legal or
otherwise, inconsistent with the terms of this Agreement or with Faber's
undertaking this relationship with the Execute Sports, (ii) that the performance
of the services called for by this Agreement do not and will not violate any
applicable law, rule or regulation or any proprietary or other right of any
third party.
16. COMPLETE AGREEMENT
This agreement contains the entire agreement between the parties hereto with
respect to the matters covered herein. No other agreements, representations,
warranties or other matters, oral or written, purportedly agreed to or
represented by or on behalf of Faber by any of its employees or agents, or
contained in any sales materials or brochures, shall be deemed to bind the
parties hereto with respect to the subject matter hereof. Execute Sports
acknowledges that it is entering into this Agreement solely on the basis of the
representations contained herein.
17. INDEMNIFICATION
Faber hereby indemnifies and agrees to defend and hold harmless the
Execute Sports from and against any and all claims, demands and actions, and any
liabilities, damages or expenses resulting there from, including court costs and
reasonable attorneys' fees, arising out of or relating to the services performed
by Faber under this Agreement or the representations and warranties made by
Faber pursuant to Sections 1 and 3 hereof. Faber's obligations under Section 4
hereof shall survive the termination, for any reason, of this Agreement.
18. ATTORNEY'S FEES
Should either party hereto, or any heir, personal representative,
successor or assign of either party hereto, resort to litigation to enforce this
Agreement, the party or parties prevailing in such litigation shall be entitled,
in addition to such other relief as may be granted, to recover its or their
reasonable attorneys' fees and costs in such litigation from the party or
parties against whom enforcement was sought.
19. NONWAIVER
No failure or neglect of either party hereto in any instance to
exercise any right, power or privilege hereunder or under law shall constitute a
waiver of any other right, power or privilege or of the same right, power or
privilege in any other instance. All waivers by either party hereto must be
contained in a written instrument signed by the party to be charged and, in the
case of the Execute Sports, by an executive officer of Execute Sports or other
person duly authorized by the Execute Sports.
20. REMEDY FOR BREACH
The parties hereto agree that, in the event of breach or threatened
breach of this Agreement, the damage or imminent damage to the value and the
goodwill of Execute Sports's business will be inestimable, and that therefore
any remedy at law or in damages shall be inadequate. Accordingly, the parties
hereto agree that Execute Sports shall be entitled to injunctive relief against
Faber in the event of any breach or threatened breach by Faber, in addition to
any other relief (including damages and the right of the Execute Sports to stop
payments hereunder which is hereby granted) available to Execute Sports under
this Agreement or under law.
21. SEVERABILITY; ENFORCEMENT
If any provision of this Agreement, or the application thereof to any person,
place, or circumstance, shall be held by a court of competent jurisdiction to be
invalid, unenforceable, or void, the remainder of this Agreement and such
provisions as applied to other persons, places, and circumstances shall remain
in full force and effect. It is the intention of the parties that the covenants
contained in Sections 5 and 6 shall be enforced to the greatest extent (but to
no greater extent) in time, area, and degree of participation as is permitted by
the law of that jurisdiction whose law is found to be applicable to any acts
allegedly in breach of these covenants.
22. SCOPE OF AGREEMENT
If the scope of any of the provisions of the Agreement is too broad in any
respect whatsoever to permit enforcement to its full extent, then such
provisions shall be enforced to the maximum extent permitted by law, and the
parties hereto consent and agree that such scope may be judicially modified
accordingly and that the whole of such provisions of this Agreement shall not
thereby fail, but that the scope of such provisions shall be curtailed only to
the extent necessary to conform to law.
23. NOTICES
All notices or other communications required or permitted hereunder shall be
made in writing and shall be deemed to have been duly given if delivered by hand
or mailed, postage prepaid, by certified or registered mail, return receipt
requested, and addressed to the Company at:
Execute Sports, Inc.
1284 Puerta Del Sol Suite 150
San Clemente CA 92673
or to the Consultant at:
Faber West Construction
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Notice of change of address shall be effective only when done in accordance with
this Section.
24. ASSIGNMENT
This Agreement may not be assigned by either party without the prior written
consent of the other party. Except for the prohibition on assignment contained
in the preceding sentence, this Agreement shall be binding upon and inure to the
benefits of the heirs, successors and assigns of the parties hereto.
IN WITNESS WHEREOF, the parties hereto have signed this Agreement as of the date
first above written.
THIS CONTRACT CONTAINS A BINDING ARBITRATION PROVISION WHICH MAY BE ENFORCED BY
THE PARTIES.
Execute Sports, Inc. Faber West Construction
Authorized Signature Authorized Signature
Print Name and Title Print Name and Title