THIS AGREEMENT ("Agreement") is made on this 5th day of July, 2001
BETWEEN: INTERNET VIP, Inc. a company duly constituted under the laws of
the State of Delaware, and, having its head office at 0000
Xxxxxxxxxx Xx., Xxxxxxxx, Xxxxxx, Xxxxxx, (hereinafter referred
to as "IVIP")
AND: XXXXX XXXXX, residing at 0000 Xxx Xxxx Xxx., Xxxxxxxx, XX,
(hereinafter referred to as the "Consultant")
WHEREAS, IVIP is desirous to market, sell and distribute pre-paid telephone
cards in various regions of the United States (the "Objective"); and
WHEREAS, the Consultant is capable and willing to undertake to investigate and
take all necessary steps to establish, staff, equip and operate such an
undertaking,
NOW, THEREFORE, the parties hereto agree as follows:
ARTICLE 1: DEFINITIONS
In this Agreement, unless the context otherwise requires:
1.1 Agreement - means this agreement dated as of the date hereof, as
well as any rider, amendment, modification or intervention which
might be made or added thereto in writing, with mutual consent of
the parties; the Agreement is also sometimes designated by the
expressions "hereof", "herein" and "hereunder";
1.2 Facilities - means the floor space, lighting, air conditioning,
electric power, telecommunications, and office equipment required
for the accommodation and operation of commercial establishment(s)
to accomplish the Objectives.
1.3 Personnel - means any persons engaged by the Consultant acting as
agent for IVIP.
1.4 Services - means the services and operations described in this
Agreement to be provided by the Consultant.
1.5 Office Sites - means the premises at which the Facilities are to be
provided.
ARTICLE 2: RESPONSIBILITIES OF IVIP
2.1 IVIP shall provide within NINETY (90) days of the signing of this
agreement
(a) A business plan outlining strategies required to be implemented to
pursue the aforementioned Objectives.
(b) A definition of all Personnel to be engaged.
2.2 Pay directly all purchases or contracts for goods and services entered
into by the Consultant on behalf of IVIP with the prior written
approval of IVIP.
ARTICLE 3: RESPONSIBILITIES OF the Consultant
3.1 To investigate and recommended office sites to IVIP.
3.2 Negotiate and sign, all documents as necessary, on behalf of
IVIP for the leasing of selected office site as chosen by the
Consultant.
3.3 Engage all necessary Personnel as per the directives of IVIP.
3.4 Obtain all necessary governmental and other approvals,
certificates, and authorizations necessary to allow the
operation of the contemplated enterprise.
3.5 Purchase on behalf of IVIP all office equipment as needed.
3.6 Supervise newly engaged Personnel.
3.7 Undertake to search for, and negotiate with potential distributors
or partners for the sale and distribution of Pre-paid cards.
3.8 Assist and advise on sale and marketing strategies, and supervise
the implementation of such strategies.
ARTICLE 4: TERM OF AGREEMENT, TERMINATION, GEOGRAPHIC SCOPE
4.1 The Initial Term of this Agreement shall be for one (1) year from
the Effective Date of this Agreement.
4.2 In the event that either party materially or repeatedly defaults in
the performance of any of its duties or obligations under this
Agreement and, within thirty (30) days after written notice is
given to the defaulting party specifying the default, (i) such
default is not substantially cured, or (ii) the defaulting party
does not obtain the approval of the other party to a plan to remedy
the default, then the party not in default may terminate this
Agreement by giving written notice to the defaulting party.
4.3 If either party becomes or is declared insolvent or bankrupt, is
the subject of any proceedings relating to its liquidation,
insolvency or for the appointment of a receiver or similar officer
for it, makes a general assignment for the benefit of all or
substantially all of it creditors, or enters into an agreement for
the composition, extension or readjustment of all or substantially
all of its obligations, then the other party, within the conditions
of applicable law, may immediately terminate this Agreement by
giving written notice.
4.4 The Consultant shall confine his business activities to the
Northeast region of the United States (i.e the New England States,
New York, New Jersey, and Pennsylvania).
ARTICLE 5: CONFIDENTIALITY
5.1 During the term of this Agreement, and for a period of three (3)
years after the expiration of the term of this Agreement,
proprietary or confidential information ("Information") of any kind
pertaining to both parties' businesses, and all written material
marked by ether party as "Confidential" or "Proprietary" shall be
treated by the other party as secret and confidential and accorded
the same protection as the parties give to their own Information of
a similar nature. Verbally disclosed Information which is to be
treated as confidential or proprietary by a party shall be
confirmed as such in writing by the party within thirty (30) days
of such disclosure.
5.3 Notwithstanding the foregoing, confidential Information does not
include information which:
o has been published or is otherwise readily available to the
public other than by breach of this Agreement;
o has been rightfully received by the receiving party from a
third party without breach of any confidentiality obligations;
o has been independently developed by the receiving party's
personnel without access to, or use of, the other party's
Confidential Information;
o was known to the receiving party prior to its first receipt
from the other party and which the receiving party has documented
prior to the date hereof; or
o is required to be disclosed by law whether under an order of a
court or government, tribunal or other legal process. In such
cases, the receiving party must immediately notify the other
party of the disclosure requirement, in order to allow the other
party a reasonable opportunity to obtain a court order to protect
its rights, or otherwise to protect the confidential nature of
the Confidential Information.
ARTICLE 6: FEES and CHARGES
6.1 The parties agree that the activities undertaken and services
provided by IVIP shall be valued at Two hundred and twenty five
thousand dollars ($225,000), and is to be paid by the issuance
of nine hundred thousand (900,000) common shares of INTERNET VIP
to the Consultant.
6.2 All pre-approved charges related to the purchase of office
equipment, establishment of the office site and facilities, and
other costs related to site preparation shall be billed directly
to IVIP by the provider of such equipment or services.
6.3 All charges in this agreement are stated in legal currency of the
United States of America.
ARTICLE 7: TAXES
IVIP shall assume responsibility for, and hold the Consultant
harmless from all taxes, duties, or similar liabilities arising
under this Agreement, under any present or future tax laws, except
for the personal income tax of the Consultant.
ARTICLE 8: LIABILITY, INDEMNITY, WARRANTIES, AND INSURANCE
8.1 IVIP shall indemnify the Consultant and hold it harmless against
and in respect to any and all claims, damages, losses, costs,
expenses, obligations, liabilities, actions, suits, including
without limitation, interest and penalties, reasonable attorneys'
fees and costs and all amounts paid in settlement of any claim,
action or suit that may be asserted against IVIP or the Consultant
or that IVIP or the Consultant shall incur or suffer, that arise
out of, result from or relate to: (a) the nonfulfillment of any
agreement, covenant or obligation of IVIP in connection with this
Agreement; (b) any breach of any representation or warranty made by
IVIP hereunder; (c) any claim of any nature whatsoever brought by
any third person or entity who may suffer damages of any sort as a
direct or indirect result of IVIP's activities pursuant to the
Agreement relating to or in connection with, or any claims of
infringement that arise out of, result from or relate to any use or
misuse of the facilities and equipment in connection with the
provision of the Services.
8.2 The Consultant warrants that it will perform its obligations under
this Agreement in a professional and workmanlike manner. In the
event the Consultant is liable to IVIP on account of the
Consultant's performance or nonperformance of its obligations under
this Agreement, whether arising by negligence or otherwise, (i) the
amount of damages recoverable against the Consultant for all
events, act or omissions will not exceed in the aggregate the
Charges paid by IVIP for the last twelve (12) months and (ii) in no
event will the Consultant be responsible for any indirect,
consequential, incidental or punitive damages of any party,
including third parties, or for lost profits. In connection with
the conduct of any litigation with third parties relating to any
liability of the Consultant to IVIP or to such third parties, the
Consultant will have all rights to accept or reject settlement
offers and to participate in such litigation. IVIP and the
Consultant expressly acknowledge that the limitations contained in
this Section have been the subject of active and complete
negotiation between the parties and represent the parties'
agreement.
8.3 Subject to Articles 8.1 and 8.2 hereof, both Parties shall be
responsible for damage to, or loss of their own property, both real
and personal, and that each shall be responsible for insuring his
own property, with an insurance policy providing extended coverage,
including but not limited to perils of fire together with insurance
against flood, theft, vandalism, malicious mischief, sprinkler
leakage and damage, and boiler and pressure vessel insurance. The
Consultant will also subscribe to and maintain additional insurance
covering damages for up to $5,000,000 to third party equipment and
personnel caused by the use of the office and related equipment and
any other insurance coverage which would seem appropriate in the
context of this Agreement. The Consultant shall furnish IVIP, upon
request to such effect, with certificates of insurance evidencing
such coverage.
ARTICLE 9: EXCUSABLE DELAY
9.1 If either party is unable to perform any of its obligations
hereunder due to Force Majeure, the failure to perform by such
party shall not constitute a basis for termination or default under
this Agreement provided that notice thereof is given to the other
party within seven (7) days after the party becomes aware of such
event. IVIP shall not be required to make any payment to the
Consultant pursuant to Article 7 during the period of the
Consultant's inability, as a result of an event of Force Majeure,
to provide the Services and Facilities.
9.2 For the purposes of this Agreement, Force Majeure shall be
understood to be any cause beyond the reasonable control of the
non-performing party and without its fault or negligence and
includes, without limiting the generality of the foregoing, acts of
God or of a public enemy, acts of any Government or any State or
Territory, or any agency thereof, in its sovereign capacity, fires,
floods, epidemic, quarantine restrictions, unusually severe weather
conditions, extraordinary vehicle traffic conditions, or mechanical
malfunctions
ARTICLE 10: NOTICES
Any notice or communication under this Agreement shall be in
writing and shall be hand delivered, given by fax or sent by
registered mail return receipt requested, postage prepaid, to the
other party's designated representative, receiving such
communication at the address specified herein, or such other
address or person as either party may in the future specify to the
other party. Such notice shall be deemed to be received upon
delivery or, by fax, on the next business day following
transmission provided electronic evidence of transmission is
produced at point of origin or, if mailed, on the fourth business
day following the date of mailing.
If to The Consultant:
Xxxxx Xxxxx
0000 Xxx Xxxx Xxx.
Xxxxxxxx, XX 00000
If to IVIP:
Internet VIP, Inc.
0000 Xxxxxxxxxx Xxx.
Xxxxxxxx, Xxxxxx, Xxxxxx X0X 0X0
Attention: General Counsel
ARTICLE 11: MISCELLANEOUS
11.1 Neither party may assign or transfer all or any part of its rights
under this Agreement, without the prior written consent of the
other, except when assigning all of their rights and obligations to
any legal entity controlling, controlled by, or under common
control with it, but with thirty (30) days' prior notice to the
other party.
11.2 The Consultant can assign this Agreement or any obligations
hereunder to a third party. If any obligations of the Consultant
are assigned to a subcontractor, the Consultant will remain
responsible for such obligations under this Agreement.
11.3 This Agreement is not intended to create, nor shall it be construed
to be, a joint venture, association, partnership, franchise, or
other form of business relationship. Neither party shall have, nor
hold itself out as having, any right, power or authority to assume,
create, or incur any expenses, liability, or obligation on behalf
of the other party, except as expressly provided herein.
11.4 If any provision of this Agreement is held invalid, illegal or
unenforceable in any respect, such provision shall be treated as
severable, leaving the remaining provisions unimpaired, provided
that such does not materially prejudice either party in their
respective rights and obligations contained in the valid terms,
covenants, or conditions.
11.5 There are no intended third party beneficiaries to this Agreement.
11.6 The failure of either party to require the performance of any of
the terms of this Agreement or the waiver by either party of any
default under this Agreement shall not prevent a subsequent
enforcement of such term, nor be deemed a waiver of any subsequent
breach.
11.7 This Agreement may not be modified, supplemented, or amended or
default hereunder waived except upon the execution and delivery of
a written agreement signed by the authorized representative of each
party.
11.8 Both parties represent and warrant that each has the full authority
to perform its obligations under this Agreement and that the person
executing this Agreement has the authority to bind it.
11.9 This Agreement shall be governed by and construed in accordance
with the laws of the Province of Quebec and the applicable federal
laws of Canada therein, and the parties irrevocably submit to the
jurisdiction of the courts of the Province of Quebec, city of
Montreal.
11.10 The Parties have requested that this Agreement and all documents
and communications pursuant to or in connection with this Agreement
be drawn up in the English language. Les Parties ont requis que
cette Convention ainsi que tous documents ou communications en
vertu de cette Convention ou s'y rapportant, soient rediges en
langue anglaise.
11.11 This Agreement constitutes the final and full terms of
understanding between the parties and supersedes all previous
agreements, understandings, negotiations, and promises, whether
written or oral, between the parties with respect to the subject
matter hereof.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed
by their duly authorized representatives as of the day and year set forth below.
INTERNET VIP, INC.
/s/Xxxx Xxxxx /s/Xxxxx Xxxxx
__________________________ ______________________________
Signature Signature
Xxxx Xxxxx, Chairman Xxxxx Xxxxx
__________________________ ______________________________
Printed Name & Title Printed Name
July 5, 2001 July 5, 2001
__________________________ ______________________________
Date Date
