EXHIBIT 10.1


 


CONSULTANT AGREEMENT


 


This agreement, dated as of February 16, 2020, is entered into
by and between:


 


Daniel Shih, holder of Republic of China
(Taiwan) passport number 314714051 (“Consultant”),


 


and


 


AERKOMM INC., a Nevada corporation., 923
Incline Way, Suite 39, Incline Village, Nevada 89451-9467, USA (“Client”).


 


The parties agree as follows:


 


Client hereby appoints Consultant, and
Consultant hereby accepts such appointment, to serve as a consultant to Client and to perform the services specified in paragraph
2.1 to the extent reasonably required from time to time by Client from the date hereof through the Termination Date (as defined
below), pursuant to the terms and conditions of this Agreement.


 


1. INDEPENDENT CONTRACTOR
STATUS


 


1.1 The
parties expressly intend that Consultant is an independent contractor and not an employee, agent, joint venturer or partner of
Client, or any of its subsidiaries, for any purpose whatsoever. Consultant will determine the method, details and means of performing
the services set forth in this Agreement. None of the provisions of this Agreement shall be interpreted or construed as creating
or establishing a relationship of employer and employee between Consultant and Client, or any of its subsidiaries, for any purpose
whatsoever.


 


1.2 Consultant
acknowledges and understands that during the term of this Agreement Client may from time to time contract with others to perform
similar services.


 


1.3 Nothing
in this Agreement shall prevent Client from determining in its sole judgment the quality or effectiveness of Consultant’s
efforts made and results achieved.


 


1.4 Consultant
does not have the power to enter into any contracts on behalf of Client and, without limiting the generality of the foregoing,
to authorize any borrowing, financial commitments, lending, pledging, selling, assigning or employment by Client. Consultant will
not perform, or be expected or obligated to perform, any broker-dealer, finder, investment banking or investment advisor functions
or services, as further elaborated in paragraph 2.4.


 


2. SERVICES
TO BE PERFORMED BY CONSULTANT


 


2.1 Consultant
shall establish and implement a business development strategy for Client. He shall use the title “Business Development Consultant.”


 


2.2 Consultant
will determine the method, details and means of performing the service referred to in paragraph 2.1, provided, however, that Client
retains the right to approve or disapprove the activities of Consultant in connection with the foregoing services. Consultant shall
immediately cease any activity disapproved of by Client.


 


2.3 Client
will make available to Consultant sales and marketing materials reasonably requested by Consultant in order for Consultant to carry
out his obligations under this Agreement. Client may, at its sole discretion, make available and provide Consultant, at his request
and free of any charge or fee, with any software, information, documentation, resources and/or equipment relating to Client’s
business for use by Consultant during any trade shows or meetings which Consultant may attend in furtherance of this Agreement.


 






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2.4 Client
and Consultant acknowledge that Consultant is NOT a state or federally registered or licensed securities broker-dealer or investment
banker or agent of a registered or licensed securities broker-dealer or investment banker, nor is anyone associated with Consultant
a licensed or registered securities broker-dealer or investment advisor or affiliated with one in any way. Not having such registrations,
licenses or qualifications, Client and Consultant agree and acknowledge that Consultant will not perform, or be expected or obligated
to perform, any broker-dealer, finder, investment banking or investment advisor functions or services pursuant to Consultant’s
obligations hereunder. This includes but is not limited to participating in any type of money raising activities, either directly
or indirectly. In addition, all compensation received or to be received by Consultant hereunder shall under no circumstances be
construed as a “brokerage commission” or finder’s fee.


 


3. FURTHER
OBLIGATIONS OF CONSULTANT


 


3.1 Consultant
shall be solely responsible for providing his own insurance, including third party liability insurance.


 


3.2 Except
as set forth in paragraph 2.3 above, Consultant shall be solely responsible for providing all tools, materials and equipment necessary
for completion of his obligations under this Agreement.


 


3.3 Upon
termination of this Agreement for any reason whatsoever, Consultant shall immediately return to Client all equipment, documentation,
information and other property provided by Client without retaining any copy, specifically including, but not limited to, any software,
information, documentation, resources and/or equipment referred to in paragraph 2.3 or otherwise received by Consultant from or
on behalf of Client.


 


4. EXPENSES


 


4.1 Consultant
shall provide Client with details of any travel undertaken by Consultant pursuant to this Agreement, including, but not limited
to, dates, duration, location, purpose, itinerary and persons met.


 


4.2 Client
shall reimburse Consultant for actual, necessary and reasonable air travel expenses undertaken by Consultant pursuant to this Agreement
up to a maximum of Twenty Thousand U.S. Dollars (US$20,000) each calendar month but only, and to the extent to which, Consultant
provides receipts for such expenses. Consultant understands and agrees that no expense will be reimbursed unless proven by documented
receipts.


 


4.3 Client
shall reimburse Consultant for actual, necessary and reasonable travel-related hotel and meal expenses undertaken by Consultant
pursuant to this Agreement up to a maximum of Ten Thousand U.S. Dollars (US$10,000) each calendar month but only, and to the extent
to which, Consultant provides receipts for such expenses. Consultant understands and agrees that no expense will be reimbursed
unless proven by documented receipts.


 


4.4 The
provisions of Sections 4.2 and 4.3 shall have effect from January 1, 2020.


 






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5. COMPENSATION


 


Client shall pay Consultant
the sum of Ten Thousand U.S. Dollars (US$10,000) each month (the “Monthly Retainer”) until the Termination Date (as
defined in this Agreement). The payment of each Monthly Retainer, or any pro rata portion thereof in the event of termination of
this Agreement before the Termination Date, shall be made on or before the seventh (7th) calendar day following the
end of the relevant month or following the date of termination of this Agreement, whichever occurs earlier.


 


6. CONSULTANT
REPORTING


 


Consultant shall make
monthly reports to the management of Client, or such other persons as Client may direct, of his activities and planned activities
pursuant to this Agreement. Consultant acknowledges that such reporting may be to employees or directors of companies which are
affiliated with Client.


 


7. TERMINATION
OF AGREEMENT


 


7.1 Notwithstanding
any other provision of this Agreement, this Agreement shall terminate automatically on the occurrence of any of the following events,
whichever occurs the earliest (the “Termination Date”): (1) one year from the date of this Agreement; (2) death or
disability of Consultant; (3) Consultant’s bankruptcy, dissolution or otherwise winding up of his business or affairs, (4)
conviction by any court in any country of Consultant of a serious crime, (5) assignment of this Agreement or any duties or obligations
under this Agreement by either party without the express written consent of the other party, or (6) termination pursuant to paragraphs
7.2 or 7.3. As used herein, “disability” means the failure of Consultant to perform his obligations pursuant to this
Agreement for a period of more than thirty (30) days for any reason, including, without limitation any physical or mental condition.


 


7.2 Should
Client default in the performance of this Agreement, or materially breach any of its provisions, Consultant may terminate this
Agreement immediately by giving written notice to Client.


 


7.3 Should
Consultant default in the performance of this Agreement, or materially breach any of its provisions, Client may terminate this
Agreement immediately by giving written notice to Consultant.


 


7.4 Either
party may terminate this Agreement with or without cause, at any time upon fifteen (15) days prior written notice to the other
party


 


7.5 In
the event of a termination of this Agreement prior to one year from the date of this Agreement, the sole obligation of Client shall
be to pay the pro rata amount of the Monthly Retainer due under Section 5 and any documented expenses under Section 4.2.


 


8. FOREIGN
CORRUPT PRACTICES ACT COMPLIANCE


 


Client advises Consultant
that the United States Foreign Corrupt Practices Act (“FCPA”) prohibits any offer, payment, promise to pay, or authorization
of the payment of money or anything of value (including money, gifts, preferential treatment and any other sort of advantage),
either directly or indirectly, by a United States person, including Client, or any of its contractors, such as Consultant, subsidiaries,
affiliates or agents, to any person, while knowing that all or a portion of such money or thing of value will be offered, given
or promised, directly or indirectly, to a foreign official to influence the foreign official in his or her official capacity, induce
the foreign official to do or omit to do an act in violation of his or her lawful duty, or to secure any improper advantage in
order to assist in obtaining or retaining business for or with, or directing business to, any person.


 






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Consultant understands
and agrees that Consultant may not and will not, directly or indirectly, offer, promise, grant or authorize the giving of money
or anything else of value to any person, while knowing that all or a portion of such money or thing of value will be offered, given
or promised, directly or indirectly, to a foreign official to influence the foreign official in his or her official capacity, induce
the foreign official to do or omit to do an act in violation of his or her lawful duty, or to secure any improper advantage in
order to assist in obtaining or retaining business for or with, or directing business to, any person.


 


Consultant understands
that these legal restrictions apply fully to Consultant with regard to Consultant’s activities in the course of or in relation
to Consultant’s retention by Client, regardless of Consultant’s physical location. Consultant represents and warrants
that Consultant fully understands and will act in accordance with all applicable laws regarding anti-corruption, including the
FCPA, the U.K. Bribery Act, and any other applicable national, state and international laws related to anti-corruption. Consultant
agrees that he will not take any action which would cause Client to be in violation of the FCPA or any other applicable anti-corruption
law, regulation or Client policy or procedure.


 


Consultant further
represents and warrants that Consultant will know and understand, and act in accordance with, all Client policies and procedures
related to anti-corruption and business conduct. Consultant agrees to attend all mandatory compliance training. Consultant undertakes
to duly notify Client if Consultant becomes aware of any such violation of Client policies or procedures, or any other violation
of law, committed by Consultant or any other person or entity, and to indemnify Client for any losses, damages, fines and/or penalties
which Client may suffer or incur arising out of or incidental to any such violation committed by Consultant. Consultant also represents
and warrants that Consultant will disclose to the Client if Consultant or any member of Consultant’s family is an official
of a foreign government or foreign political party, or is a candidate for foreign political office.


 


In case of any breach of this Section 8,
Client may suspend or terminate this Agreement at any time without notice or indemnity.


 


9. CONFIDENTIALITY


 


For purposes of this
Agreement, “Confidential Information” includes any information in any form or medium, including without limitation
written records, documents, computer-readable disks, tapes, printouts, sound recordings, photographs, reproductions, sketches,
notes, or copies or excerpts of them, or other documents or materials that Client considers (acting at all times reasonably and
in good faith) confidential, whether or not marked as confidential. Confidential Information includes inventions, software, source
code, object code, algorithms, procedures, databases, compilations, technical data, formulas, theories, methods, equipment, samples,
designs, data, specifications, drawings, blueprints, prototypes, models, business plans, customer lists, contacts and information,
sales and marketing reports, proposals, prices, costs, personnel and payroll records, mailing lists, accounting records, and other
trade secrets and information concerning the businesses and other ventures which Client or its affiliates now operates or may operate
in the future made by Client or its affiliates. In regard to the above, Consultant agrees as follows:


 


(a) during
the term of this Agreement, Consultant will not disclose or make use of any Confidential Information except as authorized in writing
by Client;


 






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(b) after
the termination of this Agreement, Consultant will not disclose or make use of any Confidential Information for any purpose, either
on his own behalf or on behalf of another person, entity or business;


 


(c) during
the term of this Agreement, Consultant will not provide to Client or make use of any trade secrets or other confidential information
belonging to a third party without the express written approval of both Client and such third party;


 


(d) Consultant
represents that he is not subject to any confidentiality, non-competition or other agreement with any third party that would conflict
with this Agreement or prevent him from performing all his obligations under this Agreement;


 


(e) upon
demand by Client or upon termination of this Agreement for any reason, Consultant will immediately assemble all property and records
of Client or its affiliates in his possession or under his control, including all copies, excerpts, derivations and duplications
thereof and all Confidential Information, and return them promptly and unconditionally to Client;


 


(f) Consultant
agrees that during the term of this Agreement and for a period of one (1) year after the Termination Date, he will not, either
directly or indirectly, for himself or for any other person or entity, hire, solicit or induce any independent contractor, consultant
or employee of the Company to leave their employment or engagement or to cease doing business with Client; and


 


(g) the
provisions of Section 9 will survive the termination of this Agreement


 


10. TRADE
SECRETS


 


10.1 Consultant
covenants and agrees with Client that he will not at any time, including after the Termination Date, without the prior written
consent of Client, directly or indirectly use or disclose to any person, except duly authorized officers or directors of Client
or its affiliates entitled thereto, any trade secret, business data or other information acquired by him by reason of his involvement
and association with Client.


  


10.2 As
it is recognized by all the parties that irreparable damage would result from any violation of paragraph 10.1, it is expressly
agreed that, in addition to any and all of the remedies available to it, each party will have the immediate remedy of injunction
or such other equitable relief as may be decreed or issued by any arbitral panel or court of competent jurisdiction to enforce
paragraph 10.1.


 


10.3 In
the event that any clause or operation of paragraphs 10.1 or 10.2 is unenforceable or declared invalid for any reason whatever,
such unenforceability or invalidity will not affect the enforceability or validity of the remaining portions of paragraphs 10.1
or 10.2 and such unenforceability or invalidity will be severable from such paragraphs and this Agreement.


 


10.4 The
provisions of Section 10 shall survive the Termination Date.


 



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11. NON-COMPETE
CLAUSE


 


11.1 Consultant
shall not own, manage, operate, consult or be employed in a business substantially similar to, or competitive with, the present
business of Client or its affiliates or such other business activity in which Client or its affiliates may substantially engage
during the term of this Agreement.


 


11.2 Consultant
shall not, directly or indirectly, manage, operate, consult or be employed in a business substantially similar to, or competitive
with, the present business of Client or its affiliates or such other business activity in which Client or its affiliates may substantially
engage for a period of one (1) year after the Termination Date. This post-contractual non-competition provision is included because
Client may, in reliance on this provision, provide Consultant access to trade secrets, customers and other confidential data, technologies,
proprietary management or production methods, sensitive information regarding client accounts, future products, marketing plans
and good will. Consultant acknowledges that sharing of such trade secrets, proprietary technology and valuable relationships, inter
alia, would cause irreparable material damage to Client. Consultant agrees to treat said information as confidential and not
to use said information on his own behalf or disclose same to any third party. Consultant also agrees to take reasonable security
measures to prevent accidental disclosure.


 


11.3 Consultant
acknowledges and agrees that any actual or potential opportunity within the scope of business of Client, which comes to the attention
of Consultant during the term of this Agreement, shall be made available to Client.


 


11.4 In
the event that any clause or operation of paragraph 11.2 is unenforceable or declared invalid for any reason whatever, such unenforceability
or invalidity will not affect the enforceability or validity of the remaining portions of paragraph 11.2 and such unenforceability
or invalidity will be severable from such paragraph and this Agreement.


 


11.5 The
provisions of Section 11 shall survive the Termination Date.


 


12. INDEMNIFICATION


 


12.1 Consultant
shall hold harmless and indemnify Client against any and all liability imposed or claimed, including attorneys’ fees and
other legal expenses, arising directly or indirectly from any act or failure of Consultant, including all claims relating to the
injury, disability or death of any person, including Consultant, or damage to any property suffered or experienced in the course
of fulfilling Consultant’s obligations under this Agreement, except if and to the extent that such liability arises or results
from Client’s or its employees’ or agents’ fraud, willful default or gross negligence.


 


12.2 Consultant
will indemnify and hold harmless Client from and against:


 


(a) any
and all liabilities, whether accrued, absolute, contingent or otherwise, in regard to any taxes, government withholdings and similar
liabilities or deductions for amounts paid to Consultant;


 


(b) any
and all damage or deficiencies resulting from any misrepresentation or material breach of this Agreement by Consultant; and


 


(c) any
and all actions, suits, proceedings, demands, assessments, judgments, costs and attorneys’ fees and other legal expenses
incident to any of the foregoing.


 


13. GENERAL
PROVISIONS


 


13.1 Entire
Agreement. This Agreement supersedes any and all agreements, either oral or in writing, with respect to the services of Consultant,
and contains all of the covenants and agreements with respect to such services in any manner whatsoever. Each party to this Agreement
acknowledges that no representations, inducement, promises or agreements, oral or otherwise, with regard to this Agreement or the
services to be rendered under it have been made by anyone which are not embodied herein. Any modification of this Agreement must
be made in writing and signed by Consultant and Client.


 






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13.2 Partial
Invalidity. If any provision of this Agreement is held to be invalid, void or unenforceable, the remaining provisions shall nevertheless
continue in full force without being impaired or invalidated in any way. The parties shall use all reasonable endeavors to replace
the invalid, void or unenforceable provision by a valid provision the effect of which is as close as possible to the intended effect
of the invalid, void or unenforceable provision.


 


13.3 Headings.
The headings in this Agreement form no part of the agreement between the parties and will be deemed to have been inserted for convenience
only and will not affect the construction hereof.


 


13.4 Governing
Law. This Agreement and the rights of the parties hereunder shall be governed by and construed in accordance with the laws of the
State of California, USA, exclusive of conflict or choice of law rules.


 


The parties acknowledge
that this Agreement evidences a transaction involving interstate commerce. Notwithstanding the provision in the preceding paragraph
with respect to applicable substantive law, any arbitration conducted pursuant to the terms of this Agreement shall be governed
by the U.S. Federal Arbitration Act (9 U.S.C., Secs. 1-16).


 


13.5 Any
dispute, claim or controversy arising out of or relating to this Agreement or the breach, termination, enforcement, interpretation
or validity thereof, including the determination of the scope or applicability of this agreement to arbitrate, shall be determined
by arbitration in San José, California, USA before three arbitrators. The arbitration shall be administered by JAMS pursuant
to its Comprehensive Arbitration Rules and Procedures and in accordance with the Expedited Procedures in those Rules. In any arbitration
arising out of or related to this Agreement, the arbitrators are not empowered to award punitive or exemplary damages, except where
permitted by statute, and the parties waive any right to recover any such damages. Judgment on the Award may be entered in any
court having jurisdiction. This paragraph 13.5 shall not preclude parties from seeking provisional remedies in aid of arbitration
from a court of appropriate jurisdiction.


 


	 	Aerkomm Inc.
	 	 	 
	DATED:  February 16, 2020	By: 	/s/ Jeffrey Wun
		Name:  	Jeffrey Wun
	 	Title: 	CEO
	 	 	 
	DATED:  February 16, 2020	By:  	/s/ Daniel Shih
	 		Daniel Shih


 


 


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