Exhibit 10.20
Design Services Agreement
This Agreement for Professional Services (the "Agreement") is made and effective
this June 5, 2005, between Execute Sports (the "Client"), a corporation
organized and existing under the laws of the Nevada, with its head office
located at 1284 Puerta Del Sol, Suite 150, San Clemente, CA 92673: and Chris
Martin, an individual, with his place of residence at 34192 Doheny Park Rd
Capistrano Beach, CA 92624 ("Contractor"):
WHEREAS, Client finds that the Contractor is willing to perform certain
work hereinafter described in accordance with the provisions of this
Agreement; and
WHEREAS, Client finds that the Contractor is qualified to perform the work, all
relevant factors considered, and that such performance will be in furtherance of
Client's business.
NOW, THEREFORE, in consideration of the mutual covenants set forth herein and
intending to be legally bound, the parties hereto agree as follows:
1. SERVICES TO CLIENT
The Contractor shall provide the following ("Services") to Client:
Brand, logo and other design work for the Client's existing products as well as
those in development. Collaboration on co-branding strategies with marketing and
distribution partners and channels.
2. PAYMENT AND INVOICING TERMS
2.1 Payment for Services
The Client will pay Contractor 40,000 shares of its common stock with
"piggy back" registration rights in lieu of cash.
2.2 Reimbursable Costs
Client shall reimburse, based on written pre-authorization, the Contractor
all costs incurred in connection with the Services rendered. Reimbursable
costs include, but are not limited to, travel costs, subcontractors,
materials, computer costs, telephone, copies, delivery, etc. that are
attributable to a project or Service (the "Reimbursable Costs"). Travel
costs are defined as air travel, lodging, meals and incidentals, ground
transportation, tools, and all costs associated with travel. All
extraordinary travel expenses must receive Client's approval. The
Contractor shall provide to Client substantiation of Reimbursable Costs
incurred.
2.3 Invoicing
Invoices will submitted monthly by the Contractor for payment by Client.
Payment is due upon receipt and is past due Five (5) business days from
receipt of invoice. If Client has any valid reason for disputing any
portion of an invoice, Client will so notify the Contractor within Three
(3) calendar days of receipt of invoice by Client, and if no such
notification is given, the invoice will be deemed valid. The portion of
the Contractor's invoice which is not in dispute shall be paid in
accordance with the procedures set forth herein.
A finance charge of Two Percent [2%] per month on the unpaid amount of an
invoice, or the maximum amount allowed by law, will be charged on past due
accounts. Payments by Client will thereafter be applied first to accrued
interest and then to the principal unpaid balance. Any attorney fees,
court costs, or other costs incurred in collection of delinquent accounts
shall be paid by Client. If payment of invoices is not current, the
Contractor may suspend performing further work.
2.4 Taxes
All amounts payable pursuant to this Agreement are exclusive of taxes.
Accordingly, there will be added to any such amount payable by Client the
monetary sum equal to any and all current and future applicable taxes,
however designated, incurred as a result of or otherwise in connection
with this Agreement or the Services, including without limitation state
and local privilege, excise, sales, services, withholding, and use taxes
and any taxes or other amounts in lieu thereof paid or payable by Client
(other than taxes based on the Contractor's net income). If Client does
not pay such taxes, the Contractor may make such payments and Client will
reimburse the Contractor for those payments. Client will hold the
Contractor harmless for any payments made by Client pursuant to this
Section 2.4.
3. CHANGES
Client may, with the approval of the Contractor, issue written directions within
the general scope of any Services to be ordered. Such changes (the "Change
Order") may be for additional work or the Contractor may be directed to change
the direction of the work covered by the Task Order, but no change will be
allowed unless agreed to by the Contractor in writing.
4. STANDARD OF CARE
The Contractor warrants that it services shall be performed by personnel
possessing competency consistent with applicable industry standards. No
other representation, express or implied, and no warranty or guarantee are
included or intended in this Agreement, or in any report, opinion,
deliverable, work product, document or otherwise. Furthermore, no
guarantee is made as to the efficacy or value of any services performed or
software developed. THIS SECTION SETS FORTH THE ONLY WARRANTIES PROVIDED
BY THE CONTRACTOR CONCERNING THE SERVICES AND RELATED WORK PRODUCT. THIS
WARRANTY IS MADE EXPRESSLY IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR
IMPLIED, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF FITNESS
FOR A PARTICULAR PURPOSE, MERCHANTABILITY, NON-INFRINGEMENT, TITLE OR
OTHERWISE.
5. LIABILITY
5.1 Limitation
The Contractor's liability, including but not limited to Client's claims
of contributions and indemnification related to third party claims arising
out of services rendered by the Contractor, and for any losses, injury or
damages to persons or properties or work performed arising out of or in
connection with this Agreement and for any other claim, shall be limited
to the lesser of (i) [AMOUNT] or (ii) payment received by the Contractor
from Client for the particular service provided giving rise to the claim.
Notwithstanding anything to the contrary in this Agreement, the Contractor
shall not be liable for any special, indirect, consequential, lost
profits, or punitive damages. Client agrees to limit the Contractor's
liability to Client and any other third party for any damage on account of
any error, omission or negligence to a sum not to exceed the lesser of (i)
[AMOUNT] or (ii) the payment received by the Contractor for the particular
service provided giving rise to the claim. The limitation of liability set
forth herein is for any and all matters for which the Contractor may
otherwise have liability arising out of or in connection with this
Agreement, whether the claim arises in contract, tort, statute, or
otherwise.
5.2 Remedy
Client's exclusive remedy for any claim arising out of or relating to this
Agreement will be for the Contractor, upon receipt of written notice,
either (i) to use commercially reasonable efforts to cure, at its expense,
the matter that gave rise to the claim for which the Contractor is at
fault, or (ii) return to Client the fees paid by Client to the Contractor
for the particular service provided that gives rise to the claim, subject
to the limitation contained in Section 5.1. Client agrees that it will not
allege that this remedy fails its essential purpose.
5.3 Survival
Articles 2, 4, 5, and 6 survive the expiration or termination of this
Agreement for any reason.
6. MISCELLANEOUS
6.1 Insecurity and Adequate Assurances
If reasonable grounds for insecurity arise with respect to Client's
ability to pay for the Services in a timely fashion, the Contractor may
demand in writing adequate assurances of Client's ability to meet its
payment obligations under this Agreement. Unless Client provides the
assurances in a reasonable time and manner acceptable to the Contractor,
in addition to any other rights and remedies available, Client may
partially or totally suspend its performance while awaiting assurances,
without liability to Client.
6.2 Severability
Should any part of this Agreement for any reason be declared invalid, such
decision shall not affect the validity of any remaining provisions, which
remaining provisions shall remain in full force and effect as if this
Agreement had been executed with the invalid portion thereof eliminated,
and it is hereby declared the intention of the parties that they would
have executed the remaining portion of this Agreement without including
any such part, parts, or portions which may, for any reason, be hereafter
declared invalid. Any provision shall nevertheless remain in full force
and effect in all other circumstances.
6.3 Modification and Waiver
Waiver of breach of this Agreement by either part shall not be considered
a waiver of any other subsequent breach.
6.4 Independent Contractor
The Contractor is an independent contractor of Client.
6.5 Notices
Client shall give the Contractor written notice within [NUMBER] days of
obtaining knowledge of the occurrence of any claim or cause of action
which Client believes that it has, or may seek to assert or allege,
against the Contractor, whether such claim is based in law or equity,
arising under or related to this Agreement or to the transactions
contemplated hereby, or any act or omission to act by the Contractor with
respect hereto. If Client fails to give such notice to the Contractor with
regard to any such claim or cause of action and shall not have brought
legal action for such claim or cause of action within said time period,
Client shall be deemed to have waived, and shall be forever barred from
bringing or asserting such claim or cause of action in any suit, action or
proceeding in any court or before any governmental agency or authority or
any arbitrator. All notices or other communications hereunder shall be in
writing, sent by courier or the fastest possible means, provided that
recipient receives a manually signed copy and the transmission method is
scheduled to deliver within [HOURS] and shall be deemed given when
delivered to the address specified below or such other address as may be
specified in a written notice in accordance with this Section.
If to the Contractor:
Chris Martin
34192 Doheny Park Rd
Capistrano Beach, CA 92624
If to Client:
Don Dallape
Execute Sports
1284 Puerta Del Sol, Suite 150
San Clemente CA 92673
Any party may, by notice given in accordance with this Section to the
other parties, designate another address or person or entity for receipt
of notices hereunder.
6.6 Assignment
The Agreement is not assignable or transferable by Client. This Agreement
is not assignable or transferable by the Contractor without the written
consent of Client, which consent shall not be unreasonably withheld or
delayed.
6.7 Disputes
The Contractor and Client recognize that disputes arising under this
Agreement are best resolved at the working level by the parties directly
involved. Both parties are encouraged to be imaginative in designing
mechanism and procedures to resolve disputes at this level. Such efforts
shall include the referral of any remaining issues in dispute to higher
authority within each participating party's organization for resolution.
Failing resolution of conflicts at the organizational level, the
Contractor and Client agree that any remaining conflicts arising out of or
relating to this Contract shall be submitted to nonbinding mediation
unless the Contractor and Client mutually agree otherwise. If the dispute
is not resolved through non-binding mediation, then the parties may take
other appropriate action subject to the other terms of this Agreement.
6.8 Section Headings
Title and headings of sections of this Agreement are for convenience of
reference only and shall not affect the construction of any provision of
this Agreement.
6.9 Representations; Counterparts
Each person executing this Agreement on behalf of a party hereto
represents and warrants that such person is duly and validly authorized to
do so on behalf of such party, with full right and authority to execute
this Agreement and to bind such party with respect to all of its
obligations hereunder. This Agreement may be executed (by original or
telecopied signature) in counterparts, each of which shall be deemed an
original, but all of which taken together shall constitute but one and the
same instrument.
6.10 Residuals
Nothing in this Agreement or elsewhere will prohibit or limit the
Contractor's ownership and use of ideas, concepts, know-how, methods,
models, data, techniques, skill knowledge and experience that were used,
developed or gained in connection with this Agreement. The Contractor and
Client shall each have the right to use all data collected or generated
under this Agreement.
6.11 Non-solicitation of Employees
During and for [NUMBER] year after the term of this Agreement, Client will
not solicit the employment of, or employ the Contractor's personnel,
without the Contractor's prior written consent.
6.12 Cooperation
Client will cooperate with the Contractor in taking actions and executing
documents, as appropriate, to achieve the objectives of this Agreement.
Client agrees that the Contractor's performance is dependent on Client's
timely and effective cooperation with the Contractor. Accordingly, Client
acknowledges that any delay by Client may result in the Contractor being
released from an obligation or scheduled deadline or in Client having to
pay extra fees for the Contractor's agreement to meet a specific
obligation or deadline despite the delay.
6.13 Governing Law and Construction
This Agreement will be governed by and construed in accordance with the
laws of California, without regard to the principles of conflicts of law.
The language of this Agreement shall be deemed to be the result of
negotiation among the parties and their respective counsel and shall not
be construed strictly for or against any party. Each party (i) agrees that
any action arising out of or in connection with this Agreement shall be
brought solely in courts of the State of California (ii) hereby consents
to the jurisdiction of the courts of the State of California and (iii)
agrees that, whenever a party is requested to execute one or more
documents evidencing such consent, it shall do so immediately.
6.14 Entire Agreement; Survival
This Agreement, including any Exhibits, states the entire Agreement
between the parties and supersedes all previous contracts, proposals, oral
or written, and all other communications between the parties respecting
the subject matter hereof, and supersedes any and all prior
understandings, representations, warranties, agreements or contracts
(whether oral or written) between Client and the Contractor respecting the
subject matter hereof. This Agreement may only be amended by an agreement
in writing executed by the parties hereto.
6.15 Force Majeure
The Contractor shall not be responsible for delays or failures (including
any delay by the Contractor to make progress in the prosecution of any
Services) if such delay arises out of causes beyond its control. Such
causes may include, but are not restricted to, acts of God or of the
public enemy, fires, floods, epidemics, riots, quarantine restrictions,
strikes, freight embargoes, earthquakes, electrical outages, computer or
communications failures, and severe weather, and acts or omissions of
subcontractors or third parties.
6.16 Use By Third Parties
Work performed by the Contractor pursuant to this Agreement are only for
the purpose intended and may be misleading if used in another context.
Client agrees not to use any documents produced under this Agreement for
anything other than the intended purpose without the Contractor's written
permission. This Agreement shall, therefore, not create any rights or
benefits to parties other than to Client and the Contractor.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
day and year first above written.
CONTRACTOR CLIENT
- ------------------------------ -----------------------------
Authorized Signature Authorized Signature
By: Chris Martin By: Donald Dallape
Title: Title: President and Chairman