Unassociated Document


    EXHIBIT
10.3

    


    MARKETING
CONSULTANT AGREEMENT

    


    


    Agreement dated this 28th  day
of January, 2009 between Qporter, Inc., a Nevada corporation, having a business
address at c/o Qporter S.A., Thurgauerstrasse 54, CH-8050 Switzerland
("Qporter") and Atlantique Caspian Holdings Ltd, Resident in Victoria,
Seychelles, legally represented by mr. August Blattig
("Consultant").

    


    WHEREAS, Qporter is a
telecommunications business specializing in the design, development, licensing,
sale, and distribution of telecommunications software and services, in
particular high-quality Voice-over-internet protocol (VoIP) services to mobile
telephone users under the trademarks, QtalkTM, Qtalk BusinessTM, Qtalk SecureTM and
messenger services under the trademark QmessengerTM as well as any future
services to be provided by Qporter(such products and services, including the
technology and software are collectively referred to herein as the "Services");
and

    


    WHEREAS, Qporter desires to engage
Consultant to locate resellers and customers (each, a "Reseller" or "Customer"
as the case may be) for the Services in the territory set forth on Exhibit A hereto (the
"Territory"); and

    


    WHEREAS, Consultant desires to locate
Resellers and Customers for the Services in the Territory.

    


    NOW, THEREFORE, in consideration of the
foregoing premises and other good and valuable consideration receipt of which is
hereby acknowledged the parties agree as follows.

    


    1.  Appointment.

    


    (a)  Qporter hereby appoints
Consultant as its non-exclusive Consultant for the Services in the Territory,
and Consultant hereby accepts the appointment on the terms and conditions set
forth herein.  Nothing contained herein shall affect Qporter's right
to distribute the Services in the Territory; provided, however, that Qporter
shall (i) provide notice to Consultant in writing and by amendment to Exhibit D hereto if
it begins negotiations with any potential Reseller or Customer in the Territory;
and (ii) not be permitted to enter into a direct reseller or customer agreement
with any third-party Reseller or Customer listed on one or more of the monthly
lists to be provided by Consultant to Qporter as provided in Paragraph 6(c) and
as set forth on Exhibit D, as amended
from time to time for a period of one-year thereafter unless Compensation (as
hereinafter defined) as provided in Paragraph 3 is paid to
Consultant.

    


    (b)  Consultant agrees that
neither it nor any entity or person with which it is affiliated will market,
directly or indirectly, any product or services competitive with the Services
during the term of this Agreement.

    


    (c)  The parties acknowledge
and agree that any Reseller or Customer shall be required to enter into a
written reseller or customer agreement with Qporter, prior to payment of any
Commissions hereunder.  The Reseller Agreement shall be substantially
in the form of reseller agreement attached hereto as Exhibit
E.

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

    


    2.  Ownership of Intellectual
Property.

    


    
      (a)  Qporter
represents and warrants to Consultant
that it owns all right, title, and interest in and to the Services and it has
all requisite power, authority, and rights to license the Services to resellers
and any reseller's subscribers and personal computer users; and the Services do
not currently and will not in the future violate the trademark, copyright,
patent, or other intellectual property rights of any third person or
entity.

    

    


    (b)  Notice of copyright
shall conspicuously appear on all copies of documentation relating to the
Services as follows: ©2007-2008 Qporter, Inc.

    


    3.  Compensation.  Qporter
shall pay to Consultant the amounts set forth on Exhibit C (the
"Compensation").

    


    4.  Records and
Payment.

    


    (a)  Payment of Compensation
shall be made to Consultant as set forth on Exhibit C. The
payment of shares of Qnective, Inc., shall be non-refundable and not be subject
to any right of set-off.

    


    (b)  During the term of this
Agreement and for a period of
three (3) years after termination, Qporter shall maintain all records relating
to the Services, which records shall be available upon prior reasonable notice
for examination and inspection by Consultant or its agents, auditors, or
accountants during normal business hours.

    


    5. Annual Sales
Quota.

    


    (a)  Qporter shall establish
a sales quotas for Consultant for the Initial Term as set forth on Exhibit B hereto (the
"Sales Quotas").

    


    (b)  Qporter agrees that it
shall retain Consultant in the Territory so long as license and other fees for
the Services exceed Consultant's Sales Quota for each year hereunder as set
forth on Exhibit
B during the Initial Term and any Renewal Term; and at the end of the
Initial Term and each Renewal Term, if any, during which Consultant achieves its
Sales Quota as set forth on Exhibit B, Qporter
and Consultant shall mutually agree upon a Sales Quota for the following Renewal
Term, but in no event shall the Sales Quota be more than 25% higher than during
the prior Initial Term or Renewal Term, as the case may be.

    


    (c)  If license fees
attributable to Consultant  do not exceed its Sales Quota for any year
hereunder during the Initial Term or any Renewal Term, and if Qporter shall so
elect, Qporter may take any one or more of the following actions

    


    (i) adjust Consultant’s Sales Quotas
for subsequent years; or

    


    (ii) terminate this
Agreement.

     

    
      
        
        

      

      
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    6.  Sales Responsibility of
Consultant.

    


    (a)  Consultant shall use its
best efforts to market the Services in the Territory.

    


    (b)  Consultant may use the
services of third parties to perform its obligations hereunder so long as
Consultant assumes full responsibility for the actions of its sales persons and
such third parties and agrees to take such steps as may be necessary to prevent
violation by any of them of the terms and conditions of this Agreement,
including but not limited to the non-competition and non-disclosure obligations
of Consultant hereunder.

    


    (c)  Consultant shall provide
bi-monthly to Qporter, in writing, a list of potential Resellers or Customers
with which it is in discussions or negotiations and the names of such potential
Resellers or Customers shall be set forth on Exhibit D, Exhibit D to be
amended from time to time to include such names of potential Resellers or
Customers.

    


    7.  Sales and Service
Training. Qporter shall be responsible for providing to Consultant one
(1) dedicated employee to support Consultant's sales and marketing
efforts.

    


    8.  Trademarks;
Labels.  Consultant acknowledges and agrees that it does not
have any right, title, or interest in or to Qporter’s or Qnective’s Inc. name or
trademarks.

    


    9.  Protection of Licensed
Services.

    


    (a)  Consultant shall not in
any manner represent that it has any ownership of the Services, and Consultant
acknowledges that the rights granted herein shall not create in favor of it any
right, title, or interest in or to the Services and that all such use by
Consultant shall inure solely to the benefit of Qporter.

    


    (b)  Consultant shall notify
Qporter of any infringement of the Services which may come to its
attention.  Qporter may take whatever action it deems necessary, and
Consultant shall fully cooperate in such action; provided, however, that Qporter
shall reimburse Consultant for any reasonable out-of-pocket costs incurred by
Consultant in so cooperating; and if Qporter institutes legal action pursuant to
this provision, such action shall be at Qporter's sole expense.

    


    10. Advertising and Promotional
Programs.  Any advertising and promotional programs in
connection with marketing the Services undertaken by Consultant shall be subject
to the prior written consent of Qporter.

    


    11.  Warranties.  Qporter
makes no warranties whatsoever in connection the Services, except in accordance
with Qporter's written warranty, if any, in effect for the
Services.  Warranties extended by Consultant beyond those extended by
Qporter shall be at the sole cost and expense of Consultant.

    


    12.  Limitation of
Liability.  Consultant agrees  that Qporter shall not
be liable for any claims against Consultant by any third party; and Qporter
agrees that Consultant shall not be liable for any claims against Qporter by any
third party except to the extent any such claims are related to the acts or
omissions of Consultant.

     

    
      
        
        

      

      
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    13.  Confidential
Information.

    


    (a)  During the term of this
Agreement Consultant may have access to information of Qporter in connection
with the performance of this Agreement which Qporter deems  to be
confidential information (the "Confidential Information").

    


    (b)   Consultant agrees
(i) to use the Confidential Information solely in connection with the
performance of this Agreement; (ii) not to furnish, disclose, or reveal
Confidential Information to third parties; (iii) to take all action reasonably
appropriate to insure that others to whom Confidential Information is disclosed
are aware of the confidentiality of the Confidential Information and that such
individuals agree to maintain the confidentiality of the Confidential
Information.

    


    (c)  The parties agree that
the provisions set forth herein shall not apply to Confidential Information or
other information (i) which Consultant can demonstrate was in its possession at
the time of disclosure and was not acquired directly or indirectly from Qporter
on a confidential basis or in violation of any confidentiality agreement; (ii)
which is in the public domain; (iii) which is independently developed by
Consultant or which becomes available to Consultant on a non-confidential basis
from sources other than Qporter and which sources to the best knowledge of the
Consultant did not acquire the information on a confidential basis.

    


    14.  Indemnification.

    


    (a)  Qporter shall indemnify,
defend, and hold harmless Consultant from and against any and all losses,
liabilities, and expenses, including but not limited to reasonable attorneys'
fees, court costs, and settlement costs as the result of any claim that the
Services infringe any patent, copyright, trademark, or other proprietary right
of any third party or the breach of any covenant or the inaccuracy of any
representation or warranty made by Qporter hereunder.

    


    (b)  Consultant shall
indemnify, defend, and hold harmless Qporter from and against any and all
losses, liabilities, and expenses, including but not limited to reasonable
attorneys' fees, court costs, and settlement costs, as the result of any breach
of any covenant or the inaccuracy of any representation or warranty made by
Consultant hereunder.

    


    15. Compliance with
Laws.

    


    (a)  Consultant shall comply
with all applicable laws, orders, codes, and regulations, including without
limitation all export, use, import, or other relevant laws and regulations of
any applicable jurisdiction in connection with its performance of its duties
hereunder.    Determination of applicable law is
Consultant's sole responsibility.

    


    (b)  Consultant acknowledges
and agrees that the Services may be regulated; and, therefore, that Consultant
is strictly prohibited from exporting, re-exporting, transferring, using, or
importing the Services regardless of method, including but not limited to
physical delivery, email, or download from FTP or website, without first
complying with all applicable laws, including but not limited to government
export laws, rules, regulations, orders, and obtaining any necessary approvals
or permits.  Obtaining any necessary export, use, or import approvals
for the Services is the sole responsibility of Consultant.

     

    
      
        
        

      

      
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    (c) Without limiting the generality of
Paragraphs 15(a) and (b) Consultant expressly warrants to Qporter that it shall
not directly or indirectly export, re-export, transfer, use or import the
Services in violation of any export laws, rules, regulations, or orders of any
applicable jurisdiction.

     

    16.  Exchange of
Information.  Consultant agrees  to notify Qporter of
all matters reasonably relating to the Services and the business and reputation
of Qporter which may come to its attention and agrees to notify Qporter
immediately of any change in Consultant's relevant business or other factor
which is more than likely to adversely affect Consultant's performance of its
duties and obligations in accordance with this Agreement.

    


    17.  Relationship between the
Parties.  The relationship hereby established between Qporter
and Consultant is solely that of independent contractor, and Consultant shall in
no way be regarded as the agent or representative of Qporter and may not assume
any obligation of any kind, implied or expressed, on behalf of
Qporter.

     

    18.  Term;
Termination.

    


    (a)  The term of this
Agreement shall be for a period of three (3) years from the date hereof (the
"Initial Term") and shall be deemed automatically renewed for additional
three-year terms on the same terms and conditions contained herein (each, a
"Renewal Term") until terminated pursuant to Paragraph 18(b) or unless
terminated by either party by notice to the other party within ninety (90) days
prior to the end of the Initial Term or any Renewal Term.

    


    (b)  This Agreement may be
terminated:

    


    (i)  by Qporter upon ten
(10) days' prior written notice in the event of the sale of all or substantially
all of Consultant's assets, the merger or consolidation of Consultant, or change
in the present stockholder control of Consultant;

    


    (ii) by Qporter upon one (1) day's
prior written notice if Consultant attempts to assign this Agreement or any
rights hereunder without Qporter's prior written consent;

    


    (iii) by Qporter upon one (1) day's
prior written notice if Consultant dissolves or ceases to function as a going
concern, or a receiver is appointed for it or applied for, or a petition is
filed by or against it under any bankruptcy act, or it makes an assignment for
the benefit of creditors; or

    


    (iv) by Qporter upon one (1) day's
prior written notice upon violation by Consultant of any of the terms or
conditions of this Agreement.

    


    (c)  Termination of this
Agreement shall release Consultant and Qporter from their respective duties and
obligations under this Agreement other than Qporter’s obligations for payment,
if any, under Paragraph 5 and as set forth in Paragraph 27 regarding survival of
certain provisions upon termination.

     

    
      
        
        

      

      
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    19.  Dispute Resolution.
Any dispute, controversy or claim between the parties arising out of or relating
to this Agreement, including the validity, invalidity, breach or termination
thereof, shall be resolved by arbitration before one (1) arbitrator in
accordance with the Swiss Rules of International Arbitration of the Swiss
Chamber of Commerce (the "Rules") in force on the date when the Notice of
Arbitration is submitted in accordance with the Rules.  Judgment upon
any award rendered by the arbitrator may be entered in any court of competent
jurisdiction and the arbitrator shall have authority to award reasonable costs,
legal fees, and disbursements to the prevailing party.  The seat of
the arbitration shall be Zurich, Switzerland.  The right to fees,
costs, and expenses may be enforced by a separate plenary suit.

    


    20.  Governing
Law.  This Agreement shall be governed by and construed in
accordance with the laws of the State of New York applicable to agreements made
and to be performed solely within such State.

    


    21.  Severability.  The
invalidity or unenforceability of any provision of this Agreement shall not
affect the validity or enforceability of any other provision.

    


    22.  Integration.  This
Agreement and the Exhibits referred to herein contain the entire agreement
between the parties hereto with respect to the transactions contemplated herein
and neither party shall be bound by nor shall be deemed to have made any
representations or warranties except those contained herein or
therein.  This Agreement constitutes the entire agreement between the
parties and supersedes and cancels all previous agreements, if
any.  If there is any conflict between the provisions of this
Agreement and any Exhibit referred to herein, the provisions of this Agreement
shall prevail.

    


    23.  Binding Force;
Assignment.  This Agreement shall be binding upon and inure to
the benefit of the undersigned parties and their respective successors and
permitted assigns.  No assignment shall be made by Consultant without
the prior written consent of Qporter and Qporter may assign this Agreement to
any parent, subsidiary, or affiliate.

    


    24.  Further
Assurances.  Each party agrees to cooperate with the other to
execute and deliver such further documents, agreements, instruments, and
certificates and to perform such acts as may be reasonably requested or required
by the other party to carry out the transactions contemplated by this Agreement.
Out of pocket costs approved in advance by the requesting party relating to such
cooperation shall be paid by the requesting party.

    


    25.  Modification; Waiver;
Amendment.  No change, modification, waiver, or amendment of
any provision of this Agreement shall be effective unless in writing and signed
by the party against whom such change, modification, waiver, or amendment is
sought to be enforced; provided, however, that Qporter may amend Exhibit B to reflect
Annual Sales Quotas for the succeeding Renewal Term, if any.

    


    26.  Notices.  All
notices, requests, demands, or other communications hereunder shall be in
writing and shall be deemed to have been duly delivered to a party hereto only
if delivered in person or sent via overnight courier addressed to a party at the
address set forth herein or to such other address as such party may have
stipulated by notice delivered in accordance with the provisions of this
paragraph; and such notice shall be deemed given on the day of
delivery.

    


    27.  Survival.  The
provisions of this paragraph and
Paragraphs 2, 4, 8, 9(a), 11, 12, 13, 14, 18, 19, 20, 21, 22, and 23 shall
survive the expiration or earlier termination of this Agreement.

     

    
      
        
        

      

      
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    IN WITNESS WHEREOF, the parties hereto
through their respective duly authorized representatives have executed this
Agreement as of the day and year first above written.

     

    
      
        	 	QPORTER, INC.	 
	 	 	 	 
	 	
                By:
      

              	/s/ Oswald
      Ortiz	 
	 	 	Oswald
      Ortiz	 
	 	 	President	 
	 	 	 	 


      

    

    


    
      
        	 	Atlantique Caspian
      Holdings Ltd	 
	 	 	 	 
	 	
                By:
      

              	/s/ August
      Blattig	 
	 	 	August
      Blattig	 
	 	 	Director	 
	 	 	 	 


      

    

    
 

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

     

    EXHIBIT
A

    


    


    Territory

    


    Worldwide

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

     

    EXHIBIT
B

    
 

    Initial
Term Sales Quota

    


     

    January
20, 2009-

    
      	
              January
      30, 2011

            	
              $30
      million of license fees

            


    

    
      	
               
      

            	
              received
      by Qporter from

            


    

    
      	
               
      

            	
              resellers

            


    

     

     

    
      	
                    
                Annual
      Sales

              

            	
               

            


    

    
      	
              Quota:

            	
              $10
      million of license fees

            


    

    
      	
               
      

            	
              received
      by Qporter from

            


    

    
      	
               
      

            	
              resellers

            


    

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

       

    

     EXHIBIT
C

    


    Compensation

    


    


    Qporter
shall pay to Consultant the following amounts:

    


    (a)  an
amount equal to twenty-five (25%) percent of all fees received from Resellers or
Customers listed on Exhibit D payable
quarterly in arrears within ten (10) business days, after the last day of each
February, May, August, and November hereunder; and

    


    (b)  an
amount equal to ten (10%) percent of all fees received from Resellers or
Customers listed on Exhibit D if during
the Initial Term the fees exceed $60 million; and for each Renewal Term, if any,
an amount equal to ten (10%) percent of all fees received from Resellers or
Customers listed on Exhibit D if the
amount received during such Renewal Term exceeds an amount equal to two times
the Sales Quota for such Renewal Term, payable within fifteen (15) days after
the end of the Initial Term and each Renewal Term, if any; and

    


    (c)  one
million two hundred thousand (1,200,000) shares of the common stock, $.001 par
value, of Qnective, Inc., to be authorized for issuance within then (10)
business days after execution of this Agreement.

    


    (d)
additional payments to Consultant from pending agreements with Resellers or
Customers in the event of termination of this Agreement shall be reasonably
agreed on between the parties.

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

       

    

    Exhibit
D

    


    Consultant's
List of Potential Resellers or Customers

    


    


    


    


    


    


    


    Qporter's
List of Existing and Potential Resellers or Customers

    


    British
Telecommunications Plc and its affiliates