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CONSULTING AGREEMENT
This Consulting Agreement ("Agreement") is entered into between Tritos,
Inc. ("Consultant") and the Client identified on the signature page to
this Agreement ("Client").
The Consultant is in the business of providing management consulting
services, business advisory services, shareholder information services
and public relations services. The Client deems it to be in its best
interests to retain the Consultant to render to the Client such
services as may be agreed to by the parties from time to time; and the
Consultant desires to render such services to the Client as set forth
hereunder.
Now therefore, in consideration of the mutual promises and covenants
set forth in this Agreement, the receipt and sufficiency of which are
hereby acknowledged, the parties hereto agree as follows:
Consulting Services: The Client hereby retains the Consultant as an
independent contractor, and the Consultant hereby accepts and agrees to
such retention. It is acknowledged and agreed by the Client that the
Consultant carries neither professional licenses nor memberships in any
self-regulatory organizations. It is further acknowledged and agreed
by the Client that that Consultant is not rendering legal advice or
performing accounting services and is not acting and shall not act as
an investment advisor or broker/advisor within the meaning of any
applicable state or federal securities laws. The services of the
Consultant shall not be exclusive nor shall the Consultant be required
to render any specific number of hours or assign specific personnel to
the Client or its projects.
Independent Contractor: The Consultant agrees to perform its
consulting duties hereto as an independent contractor. Nothing
contained herein shall be considered to create an employer-employee
relationship between the parties to this Agreement. The Client shall
not make social security, workers' compensation or unemployment
insurance payments on behalf of Consultant. The parties hereto
acknowledge and agree that the Consultant cannot guarantee the results
or effectiveness of any of the services rendered or to be rendered by
the Consultant. Rather, Consultant shall conduct its operations and
provide its services in a professional manner and in accordance with
good industry practice. The Consultant will use its reasonable
business efforts in providing services to Client.
Time, Place and Manner of Performance: The Consultant shall be
available to the officers and directors of the Client at such
reasonable and convenient times and places as may be mutually agreed
upon. Except as aforesaid, the time, place and manner of performance
of the services hereunder, including the amount of time to be allocated
b the Consultant to any specific service, shall be determined in the
sole discretion of the Consultant.
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Compensation: The Client shall provide to the Consultant compensation
for its services hereunder in the amounts and at the times as set forth
as follows. The Consultant will receive $15,000 for the term December
15, 2010 through January 14, 2011. The consultant will properly
disclosure any and all compensation on all media sent out as per SEC
law.
Termination: Either the Consultant or the Client may terminate this
Agreement at the end of any month during the term of this Agreement.
This Agreement shall automatically terminate upon the dissolution,
bankruptcy or insolvency of the Client or the Consultant. The
Consultant and the Client shall have the right and the discretion to
terminate this Agreement should the other party, in performing its
duties hereunder, violate any law, ordinance, permit or regulation of
any governmental entity or self-regulatory organization, accept for
violations that either singularly or in the aggregate do not have or
will not have a materially adverse effect on the party desiring
termination.
Work Product: It is agreed that all information and materials produced
for the Client shall be the property of the Consultant, free and clear
of all claims thereto by the Client, and the Client has no claim of
authorship therein or ownership rights thereto.
Confidentiality: The Client and the Consultant each agree to provide
reasonable security measures to keep information belonging to the other
party confidential where release of the same would be detrimental to
such party's business interest ('Confidential Information"). Each
party agrees that Confidential Information shall be subject to this
Agreement if provided to the other party and marked "Confidential" in a
conspicuous manner. Consultant and Client shall each require their
employees, agents, affiliates, sub-contractors, other licensees, and
others who have access to Confidential Information through Consultant
or Client, as the case may be, to enter into appropriate non-disclosure
agreements requiring the level and degree of confidentiality
contemplated by this Agreement. Consultant and Client each agree that
it will not, either during the term of this Agreement or at any time
thereafter, disclose, use or make known for its own or another's
benefit, any confidential information acquired or used by it hereunder.
The term "Confidential Information" excludes information that: (a) is
made public by Consultant or Client in violation of this Agreement, (b)
becomes generally available to the public, other than as a result of
disclosure by Consultant or Client or another party in violation of any
obligation of confidentiality, or (c) Client or Consultant obtains from
sources other than Client or Consultant.
Conflict of Interest: The Consultant shall be free to perform services
for other entities or persons. The consultant will notify the Client
of its performance of consulting services for any other entity or
person that the Consultant reasonably believes could materially
conflict with its obligations to the Client under this Agreement.
Disclaimer of Responsibility for Acts of the Client: Limitation on
Liability: In no event shall the Consultant be authorized or required
by this Agreement to represent or make management decisions for the
Client. The Consultant shall, under no circumstances, be made liable
for any expense incurred or loss suffered by the Client as a
consequence of such decisions by the Client or any affiliates or
subsidiaries of the Client as a result of services performed by the
Consultant hereunder. CONSULTANT DISCLAIMS ANY AND ALL WARRANTIES
REPECTING THE SERVICES AND ACTIVITIES INCLUDING ALL IMPLIED WARRRANTIES
OF NON-INFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR
PURPOSE. IN NO EVENT SHALL CONSULTANT BE LIABLE FOR ANY INDIRECT,
INCIDENTAL, OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR OTHERWISE
RELATING TO THE SERVICES TO BE PROVIDED UNDER THIS AGREEMENT, HOWEVER
CAUSED, EVEN IF CONSULTANT HAS BEEN ADVISED OF THE POSSIBILITY OR
LIKELIHOOD OF SUCH DAMES. IN NO EVENT SHALL CONSULTANT'S LIABILITY FOR
DAMAGES UNDER OR RELATING TO THIS AGREEMENT, REGARDLESS OF HOW ARISING,
EXCEED THE AMOUNT OF CASH COMPENSATION PAID TO CONSULTANT HEREUNDER.
Indemnification: Each party agrees to indemnify and hold harmless the
other party, as well as each of its officers, directors, employees,
agents and each person, if any, who controls that party, against any
and all liability, loss, costs, expenses or damages, including, but not
limited to, any and all expenses reasonably incurred in investigating,
preparing or defending against any litigation or arbitration, commenced
or threatened, directly resulting by reason of any act, neglect,
default or omission, or any untrue or allegedly untrue statement of a
material fact, or any misrepresentation of any material fact, or any
breach of any material warranty or covenant, by that party or any of
its agents, employees, or other representative, arising out of, or in
relation to, this Agreement. Notwithstanding the foregoing, in no
event shall the liability of Consultant exceed the amount of cash
compensation actually received by Consultant pursuant to this
Agreement.
Notices: Any notices required or permitted to be given under this
Agreement shall be sufficient if in writing and delivered or sent by
fax, registered or certified mail, or by Federal Express or other
nationally recognized overnight couriers to the principal office of
each party and addressed to its principal executive officer at the
address set forth on the signature page to this Agreement. Faxes
should be marked for the attention of the principal executive officer
and sent to the fax number set forth on the signature page to this
Agreement.
Waiver of Breach: Any waiver by either party of a breach of any
provision of this Agreement by the other party shall not operate or be
construed as a waiver of any subsequent breach by such party.
Assignment: Neither party may assign this Agreement without the
written consent of the other party.
Applicable Law: It is the intention of the parties thereto that this
Agreement and the performance hereunder and all suits and special
proceedings hereunder be construed in accordance with and pursuant to
the laws of the State of new York and that, in any action, special
proceeding or other proceeding that may be brought arising out of, in
connection with, or by reason of this Agreement, the laws of the State
of New York, without regard to conflicts of law principles, shall be
applicable. The parties agree to submit all litigation arising
hereunder to the state or federal courts located in Monroe County, New
York, and consent to the jurisdiction and venue of such courts, and
further waive any objection that such courts are an inconvenient forum.
Severability: All agreements and covenants contained herein are
severable, and in the event any of them shall be held to be invalid by
any competent court, the Agreement shall be interpreted as if such
invalid agreements or covenants were not contained herein.
Entire Agreement: This Agreement constitutes and embodies the entire
understanding and agreement of the parties and supersedes and replaces
all prior understandings, agreements and negotiations between the
parties.
Waiver and Modification: Any waiver, alteration, or modification of
any of the provisions of this Agreement shall be valid only if made in
writing and signed by the parties hereto.
Counterparts and Facsimile Signature: This Agreement may be executed
simultaneously in two or more counterparts, each of which shall be
deemed an original but all of which, taken together, shall constitute
one and the same instrument. Execution and delivery of this Agreement
by exchange of facsimile copies bearing the facsimile signature of a
party hereto shall constitute a valid and binding execution and
delivery of this Agreement by such party.
/s/Tritos, Inc. 12/8/2010
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Tritos, Inc. Date
(Consultant)
/s/Michael C. Hiler 12/9/2010
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(Paying Party) Signature Date
Michael C. Hiler
(Paying Party) Print nam
