Exhibit 10.29 Consulting Agreement
between the Company and Akaoni Management dated October 10,
2008
CONSULTING
AGREEMENT
This Consulting Agreement (the "Agreement") is made
and entered into as of this 10 th day of October 2008 (the "Effective Date") by and
between Sunovia Energy Technologies, Inc., a Nevada corporation
with offices located at 6408 Parkland Drive, Suite 104, Sarasota,
Florida 34243 ("SETI" or "the Company"), and Akaoni Management LLC,
a consulting company with offices located at 22700 Shore Center
Drive, Euclid, Ohio 44123 ("Consultant").
RECITALS
A. Company desires to
have Consultant perform certain consulting services as described in
this Agreement and the exhibits attached hereto, subject to the
terms and conditions of this Agreement; and
B. Consultant is able,
willing and properly qualified to perform such consulting
services.
In consideration of the
foregoing, the mutual covenants, agreements, promises,
representations and warranties contained in this Agreement, and
other valid consideration, the receipt and sufficiency of which are
hereby mutually acknowledged, Company and Consultant hereby
covenant and agree as follows:
AGREEMENT
SECTION I. TERM OF
AGREEMENT.
The term of this Agreement shall
commence on the Effective Date and shall continue until the
9 th day of October, 2009, unless earlier
terminated pursuant to this Agreement (the "Term").
SECTION II. SCOPE OF
WORK.
Generally, Consultant
will render services in accordance with generally accepted and
currently recognized practices, procedures and
principles.
Company shall engage
Consultant to provide the following consulting services:
1.
Assist with the
development of advertising and marketing programs and
materials.
2.
Review and make any
necessary modifications to Company press releases, collaterals,
presentations, and other sales, marketing and
promotional materials.
3.
Assist with key
executive searches and offer executive qualification
evaluations.
4.
Bi-weekly consultations
with the President and/or CEO.
5.
Attend select meetings
with President & CEO.
6.
Assist with due
diligence of potential acquisitions and partnerships.
Whenever Company desires
that the Consultant perform consulting services that are not
specifically outlined under this Agreement, Company will advise
Consultant by preparing a Task Order ("Task Order"). A Task Order
format is attached hereto as Exhibit "A". Company shall prepare
such written Task Orders which shall include a detailed description
of the scope of the work to be performed, including the anticipated
result(s) of Consultant's efforts, the nature and extent of the
work necessary to achieve such result(s), and an estimate of any
fees and/or expenses that may be incurred by the Consultant, and
the schedule for completion (each a "Scope of Work").
Consultant shall review
and may comment on any Task Order prepared by the Company and
suggest reasonable changes therein. Consultant shall not proceed
with the Scope of Work described in any
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Task Order and Company
shall not be liable for any compensation or expenses with respect
to a Task Order unless and until such Task Order is signed by the
Consultant and Company or its designee.
Subsequent to execution
of any Task Order, the parties may execute a task change order
altering the terms of the Scope of Work. Consultant shall be
responsible for completing the work reflected in Task Orders and
agreed upon change orders and shall not be entitled to compensation
except as set forth in this Agreement. Company shall not be liable
for work performed outside of the work agreed to specifically in
writing pursuant to a Task Order or change order
thereto.
SECTION III.
CONSULTING FEE AND TERMS OF PAYMENT.
As consideration for the
services performed by Consultant pursuant to this Agreement,
Company shall compensate Consultant for work performed as provided
below, plus payment of reimbursable expenses.
Consultant shall receive
seven thousand five hundred dollars ($7,500) ("the Cash
compensation") per month. The Cash Compensation shall be payable
monthly, in arrears, in twelve (12) equal installments, with the
first installment being payable for the Month of October,
2008.
Consultant shall receive
two (2) stock options ("the Stock Option Compensation") whereby
each option shall consist of four hundred thousand (400,000) shares
of restricted common stock of the Company, as set forth and defined
within the attached Exhibit B ("The Options").
The first stock option may be
exercised on or after January 1, 2009 and the second and final
option may be exercised on or after March 31, 2009. Terms and
conditions of the Option are included within said Exhibit
B. Company shall pay
Consultant its reasonable, out-of-pocket, pre-approved expenses as
incurred by Consultant in connection with his performance under
this Agreement. Consultant
shall not incur any
expenses without prior written consent of Company. Consultant
agrees to provide Company with access to such receipts, ledgers and
other records as may be reasonably appropriate for Company to
verify the amount and nature of such expenses.
SECTION IV.
INVOICING.
Consultant shall render an invoice
(together with all receipts for expenses exceeding $25 to the
extent practicable) to the partners or co-venturers between Company and
Consultant or between Company and any employee of Consultant or
between Consultant and employee of Company limiting the generality
of the foregoing:
Company by the 1st day
of each month for all expenses incurred by Consultant in the prior
month for which Consultant seeks reimbursement ("Invoice"). Any
undisputed charges in such Invoices shall be due and payable within
thirty (30) days after receipt.
5.1 Control
SECTION V. STATUS OF
CONSULTANT.
Consultant enters this
Agreement as and intends to continue to be an independent
contractor. Consultant acknowledges that as an independent
contractor he is undertaking certain risks of loss not associated
with an employment relationship. None of the provisions of this
Agreement shall be interpreted or deemed to create any relationship
between such parties other than that of independent contractors.
Nothing contained in this Agreement shall be construed to create a
relationship of employer and employee, master and servant,
principal and agent, or
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Company shall have no
right to control or direct the details, manner, or means by which
Consultant performs the Services under this Agreement. In
performing the Services under this Agreement, Consultant shall have
no control over or management authority with respect to Company or
its operations.
5.2 Taxes and Other
Obligations.
Consultant shall report
for federal and state income tax purposes all amounts received by
it under this Agreement as income. Consultant shall have sole
responsibilities for the withholding of all federal and state
income taxes, unemployment insurance tax, social security tax, and
other withholding with respect to payments made by Consultant to
its employees performing services for it under this Agreement.
Neither Consultant nor any of its employees shall be entitled to
any employment benefits of any kind provided by Company to its
employees, including, but not limited to, vacation pay, sick leave
pay, retirement plan and related benefits, social security, workers
compensation insurance, disability insurance, employment insurance
benefits, and other benefits of any kind provided by Company to its
employees, and for itself and its employees; and Consultant
expressly waives any and all rights to such benefits. For itself
and its employees, Consultant irrevocably elects not to participate
in any retirement plans under Section 401 (a) of the Internal
Revenue Code of 1986, as amended, contributed to by Company.
Consultant shall indemnify and hold Company harmless from any and
all loss or liability (including attorneys' fees) arising from
Consultant's failure to report as income payments received 'by it
under this Agreement and its failure to withhold for federal and
state tax purposes amounts paid to its employees rendering services
to it under this Agreement, in the event the Internal Revenue
Service or any other governmental agency should question or
challenge the independent contractor status of
Consultant.
5.3 Benefits.
Consultant expressly
agrees that as an independent contractor, Consultant shall not be
eligible to participate in any of Company's employee benefit plans
or programs, and that the only consideration payable by Company to
Consultant shall be the amounts set forth in the this
Agreement.
5.4
Insurance.
Consultant further agrees that
Consultant will provide any and all insurance coverages which
Consultant may, in Consultant's sole discretion, require;
provided, however, that Consultant shall carry and maintain
in force (l) automobile insurance and worker's
compensation coverages in at least those amounts required by
relevant state or local statutes in the jurisdiction where
Consultant performs the majority of services rendered hereunder and
(2) such General Liability which is commercially reasonable under
the circumstances surrounding the Services.
5.5
Workplace.
It is understood that while Consultant
will perform the Work primarily at Consultant's principal place of
business as noted above, Consultant shall need access to Company's
business offices and employees from time to time. Accordingly, Consultant or its
authorized representatives shall have access, during normal working
hours, to Company's officers and employees upon reasonable notice,
and shall be provided adequate and appropriate work space,
facilities and equipment in order to complete the Scope of
Work.
SECTION VI.
NON-INFRINGEMENT.
To induce Company to
enter into this Agreement, Consultant represents and warrants to
Company that, in Consultant's performance of the Services
hereunder, Consultant will not breach an obligation of Consultant
to any third party. In addition, Consultant represents and warrants
to Company that
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Consultant is not a
party to any agreement and has no obligations that would prohibit
Consultant from engaging in any of the services contemplated by the
Agreement or that might in any way affect Consultant's ability to
use its best efforts to carry out the provisions of this Agreement.
Consultant acknowledges that Company would not have engaged
Consultant to perform the Services if Consultant could not in good
faith make the foregoing representations and warranties. Consultant
warrants that it will not provide services hereunder that will
violate or in any way infringe upon the rights of third parties,
including property, contractual, employment, trade secrets,
proprietary information, privacy or publicity and
nondisclosure rights, or any trademark, copyright or patent
rights.
SECTION VII.
CONFIDENTIALITY; OWNERSIDP.
7.1 Receipt of Trade
Secrets.
Consultant recognizes
and acknowledges that, in the course of the engagement of
Consultant by Company, and as a result of the confidential
relationship with Company established thereby, Consultant shall be
receiving trade secrets of Company and confidential information
("Trade Secrets"), and developing additional know-how and
proprietary information owned by Company which will become Trade
Secrets, and that such Trade Secrets are highly valuable assets of
Company; provided, that technology and information shall not be
considered Trade Secrets of Company which are (1) known to
Consultant prior to execution of this Agreement; (2) previously
divulged by Company to others without any restrictions
thereon;
(3) disclosed to
Consultant by a third party who is not in breach of any
confidentiality obligation to Company; or (4) technology or
information of such a general level as to constitute general
business knowledge and skill of Consultant.
7.2
Nondisclosure.
Consultant shall retain
in strict confidence and shall not use for any purpose whatsoever
or divulge, disseminate or disclose to any third party (other than
in the furtherance of the business purposes of Company and at the
express, written request of Company) any technology and information
relating to Company's business or its patents, inventions,
software, know-how and other property rights, including without
limitation, the Trade Secrets, all of which are deemed confidential
and proprietary. In addition, Consultant shall not reveal to any
person or entity the existence, or any of the terms, of this
Agreement.
7.3
Ownership.
Any methods,
developments, inventions and/or improvements (including but not
limited to software) whether or not patentable or subject to
intellectual property protection (including, but not limited to,
the Trade Secrets, all computer programs, including any source
code, object code, enhancements and modifications, all files,
including input and output materials, all documentation related to
such computer programs and files, all media upon which any such
computer programs, files and documentation are located, including
tapes, disks and other storage media) and all related materials
that are (1) developed by Consultant in connection with the
performance of the Services after the Effective Date; or (2) paid
for or provided by Company in connection with the performance of
the Services before or after the Effective Date, (collectively
"Developed Property") shall be and remain the property of
Company.
7.4 Works Made for
Hire.
In no way limiting the
foregoing, all Developed Property conceived or made by Consultant
in connection with the Services are "supplementary works" and
"works made for hire" (as those terms
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are defined in the
United States Patent Trademark and Copyright Laws, 17 U.S.C. §
101) and owned by Company; and Consultant hereby assigns to Company
all Developed Property which Consultant may conceive of or make in
connection with the performance of the Services.
7.5 Disclosure;
Assignment.
Consultant promptly
shall execute and deliver to Company any instruments deemed
necessary by Company to effect disclosure and assignment by
Consultant to Company of any Developed Property. Upon the request
of Company and at Company's expense, Consultant shall execute
patent and copyright applications and any other instruments deemed
necessary by Company for the prosecution of such patent
applications or the acquisition of letters patent or registration
of copyrights in the United States and/or foreign countries which
may be based in whole or in part on Developed Property.
SECTION VllI.
INJUNCTIVE RELIEF .
If Consultant violates
either Error! Reference source not found. or Section VII. of this
Agreement, Company (in addition to any other and additional rights
or remedies it may have at law, in equity or by statute) shall be
entitled to immediate and permanent injunctive relief, it being
agreed that the damages which Company would sustain upon such
violation are difficult or impossible to ascertain in advance. The
posting of a bond shall not be required as a precondition to
such injunctive relief.
SECTION IX.
ASSIGNMENT; SUBCONTRACTING.
It is mutually acknowledged that this
Agreement contemplates the personal services of Consultant and,
accordingly, neither this Agreement nor any rights hereunder or
interest herein may be assigned or transferred, and no obligations
of Consultant hereunder may be subcontracted or otherwise delegated
by Consultant without express prior written consent of
Company.
SECTION X. NO
CONFLICT .
To induce Company to
enter into this Agreement, Consultant represents and warrants to
Company that, in Consultant's performance of the Services
hereunder, Consultant will not use or disclose any confidential,
proprietary information of, nor breach an obligation of Consultant
to, any third party, Consultant acknowledges that Company would not
have engaged Consultant to perform the Services if Consultant could
not in good faith make the foregoing representation and
warranty.
SECTION XI.
TERMINATION.
11.1 30 Days
Notice.
Either party may
terminate this Agreement upon thirty (30) days written notice to
the other specifying the effective date of termination. In the
event Company shall so terminate this Agreement, Company shall pay
Consultant for the Work performed prior to the effective date of
such termination, subject to the provisions of Section
XII.
11.2 Return of SETI
Property.
In the event of
termination, and regardless of any dispute which may exist between
Company and Consultant, all Company property and materials in
Consultant's possession which in any way pertain to services
rendered hereunder shall be delivered immediately to
Company.
Termination or
expiration of this Agreement shall not affect the obligations of
the parties to pay amounts that may have accrued hereunder, or for
breaches of this Agreement that occurred, prior to such termination
or expiration. The provisions of Error! Reference source not
found. Section VII. , Section VIII. , Section XII. , Section
XIII. and Section XVI. of this Agreement shall survive the
expiration or termination of this Agreement.
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SECTION XII. REMEDIES
FOR BREACH.
In the event of any
breach of this Agreement by any party hereto which shall continue
for ten (10) or more calendar days after written notice of such
breach (including a reasonably detailed statement of the nature of
such breach) shall have been given to the breaching party by the
non-breaching party, the non-breaching party shall be entitled
to:
a. suspend performance
of all its obligations under this Agreement for so long as the
breach continues uncorrected; or
b. terminate this
Agreement.
SECTION XIII.
LIMITATION OF LIABILITY.
IN NO EVENT SHALL EITHER
PARTY BE LIABLE TO THE OTHER PARTY FOR CONSEQUENTIAL, INDIRECT,
SPECIAL OR INCIDENTAL DAMAGES ARISING OUT OF THE OTHER PARTY'S
PERFORMANCE UNDER THIS AGREEMENT.
SECTION
XIV.
NOTICES.
All notices issued
hereunder by either party shall be made in writing and shall be
personally delivered, transmitted by facsimile (with transmission
confirmation) or delivered by certified United States mail, postage
prepaid, return receipt requested, addressed as follows:
To Company:
Sunovia Energy Technologies, Inc. 6408 Parkland Drive,
Suite 104 Sarasota, Florida 34243 Attention: Carl Smith Fax: 941/
751-3583
To Consultant: Akaoni
Management LLC. 22700 Shore Center Drive Euclid. Ohio
44123
Attention: Matt
Carpenter Fax: 216/289-1635
The effective date of
notice shall be the date of delivery to the addressee or office of
addressee, whichever occurs earlier.
SECTION XV. ENTIRE
AGREEMENT.
This Agreement sets
forth the entire understanding of the parties with respect to the
subject of this Agreement and supersedes all prior statements,
representations, warranties or covenants made by either party
except as expressly set forth herein. Consultant is not relying
upon any representations made by Company concerning the difficulty
of the performance of the Services or any other matters. This
Agreement may not be amended or modified except by a written
document signed by Compan