EXHIBIT 10.4
CONSULTING CONTRACT
-------------------
THIS AGREEMENT is made as of the 31st day of March, 2002.
BETWEEN:
XXXXXX XXXXX
------------------
(the "Consultant")
OF THE FIRST PART
AND:
VIAVID BROADCASTING, INC.,
--------------------------
a Nevada corporation
OF THE SECOND PART
WHEREAS:
A. The Company wishes to contract for the services of the
Consultant.
B. The Consultant has agreed to accept such contract for services
upon the terms and conditions of this Agreement.
NOW THEREFORE THIS AGREEMENT WITNESSES THAT in consideration of the mutual
covenants herein contained, the parties hereto agree as follows:
1. ENGAGEMENT
1.1 APPOINTMENT. The Company hereby contracts for the services of the Consultant
and the Consultant hereby agrees with the Company to perform services for the
Company in accordance with the terms and conditions of this Agreement.
1.2 SCOPE OF DUTIES. The Consultant will act as a director of the Company and
will have the following responsibilities and duties to the Company to be
provided as the consultant services (the "Consultant Services"):
A. exercising general direction and supervision over the marketing
and development of the business of the Company;
B. providing direction to the management of the Company;
C. assisting with the day to day operations of the Company;
D. performing such other duties and observing such instructions as
may be reasonably assigned to him from time to time by the Board
of Directors; and
E. generally at all times abiding by all lawful directions given to
him by the Board of Directors of the Company.
1.3 BEST EFFORTS. The Consultant shall at all times use its best efforts to
advance the interests of the Company, and shall faithfully, industriously, and
to the best of its abilities, perform the responsibilities and duties described
above.
1.4 COVENANTS AND RESTRICTIONS. The Consultant covenants and agrees with the
Company that the Consultant will not engage in any activities which would bring
the Company's reputation into disrepute.
1.5 WARRANTIES AND REPRESENTATIONS. The Consultant warrants and represents to
the Company as follows and acknowledges that the Company is relying upon these
warranties and representations in entering into this Agreement:
(a) the Consultant has the necessary expertise to effectively provide
the Consultant Services;
(b) the Consultant is not aware of any matter which would prevent the
Consultant from carrying out his duties and obligations pursuant
to this Agreement.
(c) the Consultant is not subject to any review by any securities
regulatory body.
1.6 INDEPENDENT CONTRACTS. The Consultant shall at all times be an independent
contractor and shall not at any time be or be deemed to be an employee of the
Company. The Consultant acknowledges that he is not an employee of the Company
and that the execution of this Agreement shall not give rise to any employment
with the Company.
2. TERM
2.1 INITIAL TERM. The initial term of this Agreement shall be one (1) year,
commencing on the date first above written, subject to earlier termination as
hereinafter provided.
2.2 RENEWAL. This Agreement shall be renewed for further terms of such duration
and upon such terms and conditions as the Consultant and the Company may
mutually agree upon in writing.
3. PAYMENT FOR THE CONSULTANT SERVICES
3.1 The Company shall pay to the Consultant a consultant fee in consideration
for the Consultant Services equal to the sum of $10,000 CDN. per month (the
"Consultant Fee").
3.2 Federal Goods and Services Tax on the Consultant Fee shall be payable by the
Company in addition to the Consultant Fee.
3.3 The Consultant may be granted, subject to the approval of the Company's
shareholders and compliance with all securities regulatory legislation,
incentive stock options to purchase shares in the Company in such amounts and at
such times as the Board of Directors of the Company, in their absolute
discretion, may from time to time determine.
2
3.4 The Consultant Fee shall be payable by the Company to the Consultant on the
last business day of each month during the term of this Agreement.
3.5 The parties agree that the Consultant Fee provided for in paragraph 3.1
hereof is intended to include reimbursements for all expenses incurred by the
Consultant in connection with its duties hereunder save and except for expenses
directly related to the performance of the Consultant's duties as director of
the Company and the Consultant shall bear the cost of its own expenses, except
for any reasonable travel and promotional expenses and other specific expenses
incurred by the Consultant with the prior written approval of the Company.
4. CONFIDENTIALITY
4.1 CONFIDENTIAL INFORMATION AND NON-DISCLOSURE. The Consultant acknowledges and
agrees that all information connected with the Company's technology, including
without limitation, all computer software, trade secrets, information, data,
inventions, discoveries, improvements, modifications, developments, technical
manuals, or process-flow manuals, data, customer information and pricing
information is confidential, and the Consultant jointly and severally covenants
and agrees with the Company to use its best efforts to ensure that such
information does not become public knowledge and undertakes not to disclose such
information or any part thereof to any other person except to its consultants
and employees as may be necessary to carry out its rights and obligations under
this Agreement. The Consultant hereby further covenants and agrees with the
Company that the Consultant shall require each and every one of its employees or
consultants who are provided with any information in respect of the Company's
technology or related knowledge to sign confidentiality agreements which shall
be in a form acceptable to the Company. All such information shall be returned
to the Company upon termination of this Agreement.
4.2 NON-COMPETITION. The Consultant shall not during the term of this Agreement
and during the period which is one year after the date of the termination of
this Agreement, either alone or in partnership or jointly or in conjunction with
any person or persons, including without limitation, any individual, firm,
association, syndicate, company, corporation or other business enterprise, as
principal, agent, shareholder, or in any other manner whatsoever, carry on or be
engaged in or concerned with or interested in or advise, lend money to,
guarantee the debts or obligations of or permit their names to be used or
employed by any person or persons, including without limitation, any individual,
firm, association, syndicate, company, corporation or other business enterprise,
engaged in or concerned with or interested in an operation or undertaking which
is in any way competitive with the business of the Company without having
obtained the express written consent of the Company. The Consultant acknowledges
and agrees that the geographical restrictions contained herein are reasonable in
light of the nature of the Company's technology and business. The Consultant
further agrees to not:
(a) carry on, be engaged in or concerned with or interested in any
business, operation or undertaking which is in any way
competitive with the
3
business of the Company anywhere in Canada and in the United
States where the business of the Company is carried on; and
(b) attempt to solicit any suppliers, customers or employees of the
business of the Company away from the Company.
4.3 Any and all inventions and improvements on which the Consultant may conceive
or make, during the term of this Agreement, relating, or in any way, pertaining
to or connected with any of the matters which have been, are or may become the
subject of the company's investigations, or in which the Company has been, is,
or may become interested, shall be the sole and exclusive property of the
Company, and the Consultant will, whenever requested by the Company, execute any
and all applications, assignments and other instruments which the company shall
deem necessary in order to apply for an obtain letters of patent for U.S. or
foreign countries for the inventions or improvements and in order to assign and
convey to the Company the sole and exclusive right, title and interest in and to
the inventions or improvements, all expenses in connection with them to be borne
by the Company. The Consultant's obligations to execute the papers referred to
in this paragraph shall continue beyond the termination of this Agreement with
respect to any and all inventions or improvements conceived or made by him
during the term of this Agreement, and the obligations shall be binding on the
assigns, executors, administrators or other legal representatives of the
Consultant. All inventions and discoveries relating to the business of the
Company and all knowledge and information which the Consultant may acquire
during his engagement shall be held by the Consultant in trust for the benefit
of the Company.
5. TERMINATION
5.1 TERMINATION BY THE COMPANY FOR CAUSE. The Company may terminate this
Agreement at any time for just cause, provided that a reasonable written notice
of three business days has been first given by the Company to the Consultant. In
this Agreement, in addition to any cause permitted by law, "just cause" with
respect to termination by the Company includes:
(a) the Consultant's material default, misconduct, breach or
non-observance of any provision of this Agreement;
(b) the inability of the Consultant to perform the Consultant
Services;
(c) the attempted assignment of this Agreement by the Consultant, in
breach of this Agreement;
(d) the dissolution, insolvency or the bankruptcy of the Consultant.
5.2 TERMINATION BY THE CONSULTANT. The Consultant may terminate this Agreement
for just cause at any time without notice to the Company, or without just cause
by providing 90 days' notice in writing to the Company. In this Agreement, in
addition to any cause permitted by law, "just cause" with respect to termination
by the Consultant includes:
(a) the Company's material default, misconduct, breach or
non-observance of any provision of this Agreement;
4
(b) the dissolution, insolvency or bankruptcy of the Company.
5.3 TERMINATION BY THE COMPANY WITHOUT CAUSE. The Company may terminate this
Agreement at any time without cause, in which event the Company will pay to the
Consultant, an amount equal to thirty six months of the Consultant Fee, plus any
Consultant Fee and expenses payable to the date of Termination.
5.4 SURVIVAL OF OBLIGATIONS. The obligations of the Consultant set forth in
sections 4.1, 4.2 and 4.3 of this Agreement will survive termination of this
Agreement for any reason.
6. OTHER PROVISIONS
6.1 GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the laws of the Province of British Columbia.
6.2 NOTICE. Any notice required or permitted to be given under this Agreement
shall be in writing and may be delivered personally or by telex or telecopier,
or by prepaid registered post addressed to the parties at the above-mentioned
addresses or at such other address of which notice may be given by either of
such parties. Any notice shall be deemed to have been received, if personally
delivered or by telex or telecopier, on the date of delivery and, if mailed as
aforesaid, then on the seventh business day after and excluding the day of
mailing.
6.3 PERSONAL NATURE. This Agreement is a contract for services and may not be
assigned in whole or in part by the Consultant.
6.4 WHOLE AGREEMENT. This Agreement supersedes any previous agreement,
arrangement or understanding, whether written or oral between the parties hereto
and constitutes the entire agreement between the parties and may only be amended
in writing.
6.5 SEVERABILITY. In the event that any provision of this Agreement that is held
to be unlawful or unenforceable, such provision will be severable and the
remaining terms and conditions of this Agreement remain in force and effect.
6.6 TIME OF ESSENCE. Time is of the essence of this Agreement.
IN WITNESS WHEREOF the parties have executed this Agreement as of the day and
year first above written.
SIGNED, SEALED AND DELIVERED
BY XXXXXX XXXXX
In the presence of:
________________________________ /s/ "Xxxxxx Xxxxx"
Signature XXXXXX XXXXX
________________________________
Name
________________________________
Address
VIAVID BROADCASTING, INC.
By its authorized signatory:
/s/ "Xxxxx Xxxxxxx"
XXXXX XXXXXXX,
President
5
