Consulting Agreement - Netgateway Inc. and Glashow Associates
CONSULTING AGREEMENT, dated as of July 1, 1999, between NETGATEWAY, INC.,
a Nevada corporation with executive offices located at 300 Oceangate, Floor 5,
Long Beach, California 90802 (the "Company"), GLASHOW ASSOCIATES, with executive
offices located at 1224 West 61st Street, Kansas City, Missouri 64113 (the
"Consultant").
WITNESSETH:
WHEREAS, the Consultant, through its affiliates and principals, has
extensive experience in their respective areas of expertise, including, without
limitation, marketing and public relations and other business matters; and
WHEREAS, the Company desires to retain the services of the Consultant to
render strategic advice with respect to the development of the Company, and the
Consultant wishes to render such services to the Company, on the terms and
conditions, and subject to the qualifications, set forth in this Agreement.
NOW, THEREFORE, in consideration of the premises and the mutual promises
and covenants hereinafter set forth, and subject to the conditions contained
herein, the parties hereto hereby agree as follows:
I. Terms of Service.
Section 1.01 Duties. The Consultant will advise the Company's management,
employees, and agents with respect to the Company's field of interest and
business, and strategic and commercial matters related to the Consultant's areas
of expertise. Upon reasonable notice to the Consultant, the Company will have
access to the Consultant at reasonable times in order to discuss matters related
to the Company's business. The services to be provided by the Consultant
pursuant to the terms hereof, whether such services are performed verbally or in
writing, shall be reasonable in terms of hours per month and shall not, in any
case, exceed in the aggregate ten hours per month. If no such services are
requested, the consulting fees provided for herein shall nevertheless be paid.
Section 1.02 Term; Termination. The term (the "Term") of this Agreement
shall be 24 months, commencing on the date hereof. In the event this Agreement
shall be terminated by the Company for any reason, the parties hereto agree that
the Consultants shall be entitled to the amounts otherwise due hereunder
notwithstanding such termination.
Section 1.03 Consulting Fee. In consideration of the services to be
performed hereunder, the Consultant shall receive the fee of $5,000 per month,
net of taxes, excises, and other governmental and other charges, payable monthly
on the first of each month in advance commencing on July 1, 1999. The Consultant
may offset such fee against amount otherwise owned by Consultant or affiliates
thereof to the Company.
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Section 1.04 Expenses. If the Company requests the Consultant to provide
any specific services hereunder that cause the Consultant to incur expenses, the
Company shall reimburse the Consultant for all reasonable expenses upon
presentation of expense vouchers or statements or such other supporting
information as the Company may require.
II. Confidentiality.
Section 2.01 Acknowledgements. The Consultant acknowledges that, during
the course of performing services hereunder, the Company may be disclosing
information to the Consultant related to the Company's business, projects, and
plans, as well as other information (collectively, "Confidential Information").
The Consultant acknowledges that the Company's business is extremely
competitive, dependent in part upon the maintenance of secrecy, and that any
disclosure of the Confidential Information would result in serious harm to the
Company.
Section 2.02 Use of Confidential Information. The Consultant agrees that
the Confidential Information will be used by the Consultant only in connection
with consulting activities hereunder and will not be used in any way that is
detrimental to the Company.
Section 2.03 Non-Disclosure. The Consultant agrees not to disclose,
directly or indirectly, the Confidential Information to any third person or
entity, other than representatives or agents of the Company or legal advisors,
expert consultants, and other advisors utilized by the Consultant in connection
with consulting activities hereunder; provided, however, that each such advisor
agrees to keep such information confidential and to use it only in connection
with such consulting activities. The Consultant will treat all such Confidential
Information as confidential and proprietary property of the Company.
Section 2.04 Confidential Information. The term "Confidential Information"
does not include information that (a) is or becomes generally available to the
public other than by disclosure in violation of this Agreement, (b) becomes
available to the Consultant on a non-confidential basis (it being understood
that information that the Consultant obtained as a result of any officer,
director, or employer thereof being previously employed by, or otherwise
serving, the Company, shall be deemed to be Confidential Information, unless
otherwise exempt under this Section 2.04, or (c) was independently developed by
the Consultant after the date hereof without reference to the information
provided by the Company.
Section 2.05 Permitted Disclosure. The Consultant may disclose any
Confidential Information that is required to be disclosed by law, government
regulation, or court or administrative order or process. If disclosure is
required, the Consultant will give the Company advance notice so that the
Company may seek a protective order or take other action reasonable under of the
circumstances.
Section 2.06 Return of Confidential Information. Upon termination of this
Agreement, the Consultant will promptly return to the Company all materials
containing Confidential Information, including, but not limited to, data,
records, reports, and other property furnished by
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the Company to the Consultant or produced by the Consultant in connection with
services rendered hereunder. Notwithstanding such return, the Consultant shall
continue to be bound by the terms of the confidentiality provisions contained in
this Article II for a period of one year after the termination of this
Agreement.
III. Miscellaneous.
Section 3.01 No Violation of Other Agreements. Each of the parties hereto
represents and warrants that execution, delivery, or performance of this
Agreement does not conflict with, or violate the terms of, any other agreement
to which it is a party or by which it is bound.
Section 3.02 Independent Contractor; Limitation of Liability.
(a) The Consultant is an independent contractor to the Company, and
nothing herein shall be deemed to constitute the Consultant or its agents as an
employee or agent of the Company.
(b) The Company acknowledges that it remains solely responsible for
the conduct and operation of its business and that the Consultant makes no
representation or warranty and assumes no liability with respect to the outcome
or result of any particular course of action or operation of the Company's
business.
Section 3.03 Notices. Any notice provided under this Agreement shall be in
writing and shall be deemed to have been effectively given when delivered
personally, sent by private express mail service (such as Federal Express), or
sent by registered or certified mail (return receipt requested) to the address
set forth in the introductory paragraph hereof (or to such other address as any
party has furnished in writing to the other parties in accordance with the
provisions of this Section 3.03).
Section 3.04 Assignment. None of the parties may assign its interest in
this Agreement or delegate its responsibilities hereunder without the prior
written consent of the other party.
Section 3.05 Severability. The invalidity or unenforceability of any
particular provision of this Agreement or portion thereof shall not affect the
validity or enforceability of any other provision thereof or portion thereof. If
any provision of this Agreement is adjudicated to be so broad as to be
unenforceable, it shall be interpreted to be only as broad as is enforceable.
Section 3.06 Counterparts; Governing Law. This Agreement may be executed
in any number of counterparts, each of which shall be deemed an original, but
all of which together shall constitute one and the same instrument. This
Agreement shall be governed by, and construed in accordance with, the laws of
the State of New York, without giving effect to conflict of laws.
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Section 3.07 Headings. The article and section headings in this Agreement
are solely for convenience of reference and shall be given no effect in the
construction or interpretation of this Agreement.
Section 3.08 Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date first above written.
NETGATEWAY, INC.
By: /s/ [ILLEGIBLE]
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Name: [ILLEGIBLE]
Title: CEO
GLASHOW ASSOCIATES
By: /s/ Andrew Glashow
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Name: Andrew Glashow
Title: DIRECTOR
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