SERVICES AGREEMENT
THIS SERVICES AGREEMENT ("SERVICES AGREEMENT") made effective the
11th day of January, 1999 ("EFFECTIVE DATE") between:
TGI Technologies Ltd., POPstar Global Communications Inc.
▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇ P. O. Box 3443
Vancouver, B.C. KPMG Centre
V5T 1C7` Tortola, British Virgin Islands
"TGI" "POPSTAR"
SCOPE:
A. Concurrently with this Services Agreement, TGI and
POPstar are entering into an agreement in relation to the Core
Software and Enhancements ("LICENSING AGREEMENT"). Under this
Licensing Agreement, POPstar will have an exclusive right and
license to commercially exploit the Core Software and Enhancements
worldwide;
B. POPstar expects that it will require technical
assistance, software development, marketing, management and other
services from TGI, in the context of POPstar's exercise of its
rights under the Licensing Agreement. POPstar wishes to retain TGI
to develop, maintain, support and provide those services
("SERVICES") in relation to Enhancements to the Core Software, which
Services are as set out in signed work orders ("WORK ORDERS") and
such other Services in relation to POPstar's exploitation of the
Core Software under the Licensing Agreement as POPstar may require
from time to time to be attached to and forming part of this
Services Agreement as Schedules B.* (each subsequent Enhancement to
be described in subsequent Work Orders - for example Schedule B.1,
Schedule B.2 and so forth);
C. TGI desires to provide such Services to POPstar in
accordance with the terms and conditions of this Services Agreement;
D. The parties agree that as POPstar is paying for the
Services performed by TGI and as POPstar is bearing the risks of the
provision of these Services, all intellectual property rights that
arise with respect to the Services, including Enhancements developed
by TGI pursuant to this Services Agreement shall be solely owned by
POPstar; and
E. The parties agree that POPstar will be providing such
Services in consideration of the price and payments set out in this
Services Agreement. The parties acknowledge that such price and
payments may be subject to adjustment based on the assessment of
applicable competent taxing authorities. Therefore the parties
agree that the price and payment provisions set out in this Services
Agreement may be adjusted based on the adjustment provisions set out
in section 3.2 or .
NOW, THEREFORE, TGI and POPstar hereby agree as follows:
1. DEFINITIONS
1.1 "CORE SOFTWARE"means the software currently known as
the Enroute Eclipse fax server software and all technical and user
documentation in source and executable code form and other materials
as described in Schedule A to this Services Agreement. This
software allows a stream of fax data from a server or a fax to be
directed through a device that routes such data through an Internet
gateway therefore allowing faxes to be sent to any destination
through the Internet.
1.2 "ENHANCEMENTS" means any changes, modifications,
alterations, improvements or subsequent bug-fixes or
revisions to the Core Software.
1.3 "CONFIDENTIAL INFORMATION" means any information
identified as confidential and proprietary information of either
party concerning their scientific and business interests not
generally available to third parties and which is disclosed
according to the procedures set out in this Services Agreement
including the Core Software, Enhancements:
(a) production processes, business plans and other
materials or information relating to the business of the parties;
and
(b) portions of computer software (in source and executable
code) and related documentation in any media including all
modifications, enhancements, versions and options.
1.4 "ACCEPTANCE" means acceptance of various Enhancements
under the procedures set out in the Work Order.
1.5 "CHANGE ORDER" means the procedure for change to any
work performed by TGI or changes to milestones, development
schedules or Enhancements as set out in subsection 2.2 of this
Services Agreement.
2. Services Retained
2.1 POPstar retains TGI to provide the services and
complete those tasks as expressly set out in attached Work Orders
which will describe services to be provided in relation to
Enhancements. All additional Services which are not in relation to
Enhancements shall be pre-authorized by an officer of POPstar and
invoices in respect thereof shall set out in detail the services
provided (e.g. management, consulting or marketing services, for
example). All additional Work Orders attached to this Services
Agreement after the effective date hereof in relation to
Enhancements shall be signed by the parties and shall set out the
following:
(a) the Enhancements to be provided by TGI to
POPstar;
(b) the milestones and times for provision of
the Enhancements by TGI to POPstar;
(c) the respective responsibilities of the
parties relative to the Enhancements;
(d) the Acceptance Test Procedure for the
Enhancements; and
(e) the fees payable to TGI for the applicable
Work Order.
2.2 Any modifications to the Services or requests by
POPstar for any such additional services which alter, amend,
enhance, add to, or delete from the Services and/or time and/or
place of performance in relation to any Enhancement will be made by
way of a Change Order setting out a description of the work, the
time for performance and the cost representing any amount in
addition to the initial retained amount. Any such Change Order must
be in writing and signed by both POPstar and TGI which change order
will then be incorporated by reference into this Services Agreement.
Specifically, POPstar and TGI shall comply with the following:
(a) POPstar shall submit to TGI in writing all Change Order
requests;
(b) TGI will evaluate each such Change Order request at no
additional cost to POPstar and return a copy of the same Change
Order request to POPstar as soon as possible but not later than ten
(10) working days following TGI's receipt of the Change Order
request. TGI's written response shall include a statement of the
availability of TGI's personnel and resources, the impact, if any,
on the completion date and changes in costs, if any. TGI in its
sole discretion may refuse to accept the Change Order request;
(c) For the purposes of this Services Agreement, only a
Change Order request mutually agreed to in writing by the parties
shall be a Change Order which then shall be deemed incorporated into
and part of this Services Agreement and each such Change Order shall
constitute a formal change to this Services Agreement adjusting fees
and completion date as finally agreed upon for each authorized
Change
Order. In no event shall the Services be deemed altered,
amended, enhanced or otherwise modified except through a duly
authorized Modification/Change Request, all in accordance with this
subsection.
2.3 If TGI is prevented or delayed from performing the
contracted tasks and services in the manner and at the time set out
in a Work Order by reason of any act or omission attributable to
POPstar, applicable milestones, schedules or time of provision of
Enhancements shall be amended forthwith, and after a 30 day period,
POPstar will pay to TGI all reasonable costs and charges sustained
or incurred by TGI (at TGI's rates specified in the Work Order and
all reasonable expenses) for additional time and materials expended
by TGI as a result of such delay.
3. PRICE AND PAYMENT
3.1 The duties of TGI and of POPstar with respect to the
Services necessary to create the Enhancements are contained in this
Services Agreement and the fees payable to TGI, and the manner of
payment, will be as set out in the Work Orders. The payments
therefor will be as set out in each Work Order. The fee for TGI's
Services which Services are not provided in respect of Enhancements,
shall be its direct and indirect costs determined in accordance with
generally accepted accounting principles, plus the percentage set
out in Schedule C, plus appropriate taxes. The provisions of the
Work Orders supplement this Services Agreement. To the extent that
there is any inconsistency between this Services Agreement and the
Work Order, the Work Order will prevail to the extent necessary to
resolve such inconsistency.
3.2 The parties agree that:
(a) the Payments shall be fair market value consideration for the
Services;
(b) the Payments as set out in the Work Order are intended to be
the best estimate of the fair market value of the Services in
relation to the Enhancements, that is presently available and unless
and until otherwise determined as provided in this Services
Agreement shall be conclusively deemed to be as set out in each Work
Order;
(c) if the Minister of National Revenue of Canada or any other
competent authority at any time proposes to issue or does issue any
assessment that would impose any liability for tax of any nature or
kind whatsoever on any person on the basis that the fair market
value of the Services provided hereunder is greater or lesser than
the Payments, and if it is determined hereafter that the fair market
value of the interests transferred hereunder is a greater or lesser
amount (the "ADJUSTED AMOUNT") than the Services, then:
(i) if the Adjusted Amount is less than the Payment, TGI shall
reimburse POPstar for all amounts overpaid on account of Services in
order to compensate for such overpayment, and;
(ii) if the Adjusted Amount is greater than the Payment, POPstar
shall pay TGI for all amounts underpaid on account of Services in
order to compensate for such shortfall, and.
(d) the Adjusted Amount shall either be the amount determined by
agreement between the parties or, failing such agreement shall be as
determined by a competent tribunal after all appeals which the
parties, upon advice of counsel, or the Minister of National Revenue
or the applicable taxing authority pursue, and the time within which
any further appeal may be filed has expired.
(e) At any time before December 31, 1999, the Payments as set out
in Work Orders and the percentage ▇▇▇▇-up as set out in Schedule C
may be adjusted on the basis of a transfer pricing study to be
conducted by KPMG Chartered Accountants.
4. Personnel
4.1 For the purposes of this Services Agreement, TGI shall stand
in the relationship of an independent contractor to POPstar and
nothing herein contained or in the services to be performed
hereunder shall constitute TGI or any employee of TGI, an employee,
partner, principal or legal representative of POPstar, and no
employer-employee relationship is to be created as between POPstar
and any person provided by TGI for the purpose of performing the
services under this Services Agreement, and TGI shall pay all wages,
and contributions and make all deductions required by law to be paid
or made by an employer in respect of any such persons.
4.2 TGI shall be permitted to substitute the services of
individuals as required subject to the approval of the substitute
individuals by POPstar.
4.3 TGI shall, upon notice being received from POPstar, remove
from service any person who is for any reason unsatisfactory to
POPstar.
5. Professional Responsibility
5.1 TGI hereby warrants to POPstar as follows:
(a) TGI's tasks and services to be performed under this
Services Agreement and all applicable Work Orders will be performed
in a professional and workmanlike manner in accordance with industry
standards;
(b) TGI has the right to use all software, development
tools, resources or other materials used to provide and develop all
Enhancements delivered to POPstar under this Services Agreement;
(c) the Enhancements will conform substantially in
accordance with the specifications set forth in the applicable Work
Orders for 90 days following Acceptance in accordance with the
provisions of the Work Order. TGI's sole obligation and liability
hereunder shall be to use reasonable efforts to remedy any such
functional non-conformance which is reported to TGI in writing by
POPstar within the warranty period. All warranty service shall be
performed at service locations designated by TGI;
(d) upon delivery and payment therefor by POPstar, the
Enhancements will be free and clear of any lien, claim, charge,
security interest or other encumbrance;
(e) TGI will not embed within the Enhancements any virus,
device or timer which may lock, disable or erase or limit the use
thereof or the systems on which the Enhancements are run or any data
on such systems; and
(f) the Enhancements to the extent of containing or calling
on calendar functions (including any function indexed to the CPU
clock, and any function providing specific dates or days, or
calculating spans of dates or days) shall record, store, process,
provide and where appropriate, insert true and accurate dates and
calculations for dates and spans, including and following January 1,
2000, including leap years, and shall have no lesser functionality
with respect to records containing dates both or either before or
after January 1, 2000 than with respect to dates before January 1,
2000.
EXCEPT AS SET FORTH IN THIS SERVICES AGREEMENT OR IN ANY WORK ORDER,
POPSTAR UNDERSTANDS THAT IT IS SOLELY RESPONSIBLE FOR DETERMINING
THAT THE SERVICES AND THE DELIVERABLES ARE APPROPRIATE FOR POPSTAR'S
PURPOSES. EXCEPT AS SET FORTH IN THIS SERVICES AGREEMENT OR IN ANY
WORK ORDER, TGI DOES NOT WARRANT
THAT THE SERVICES OR ENHANCEMENTS ARE FIT FOR THE PURPOSES OF POPSTAR OR
THAT THE PERFORMANCE OF THE ENHANCEMENTS WILL BE UNINTERRUPTED OR ERROR FREE.
EXCEPT AS SET FORTH IN THIS SERVICES AGREEMENT OR IN ANY WORK
ORDER, THERE ARE NO OTHER WARRANTIES, REPRESENTATIONS, CONDITIONS,
OR GUARANTEES OF ANY KIND WHATSOEVER, EITHER EXPRESS OR IMPLIED BY
LAW (IN CONTRACT OR TORT) OR CUSTOM, INCLUDING, BUT NOT LIMITED TO
THOSE REGARDING MERCHANTABILITY, FITNESS FOR PURPOSE, CORRESPONDENCE
TO SAMPLE, TITLE, DESIGN, CONDITION, OR QUALITY. WITHOUT LIMITING
THE ABOVE, TGI DOES NOT WARRANT THAT THE OPERATION OF ANY OF THE
ENHANCEMENTS SHALL BE FREE FROM INTERRUPTION OR ERRORS
5.2 The parties hereto agree that the liability of TGI hereunder
shall be limited to direct and actual money damages effectively
incurred by POPstar and shall not, in the aggregate, exceed the
total fees paid to TGI for Services rendered under this Services
Agreement, regardless of the number of claims.
5.3 IN NO EVENT SHALL TGI BE LIABLE FOR SPECIAL, INDIRECT AND/OR
CONSEQUENTIAL DAMAGES, EVEN IF TGI HAS BEEN NOTIFIED OF THE
POSSIBILITY OF SUCH DAMAGES BEING INCURRED. POPSTAR FURTHER AGREES
THAT TGI WILL NOT BE LIABLE FOR ANY LOSS OF PROFITS NOR FOR ANY
CLAIM AGAINST POPSTAR MADE BY ANY THIRD PARTY.
6. Intellectual Property
6.1 Any Enhancements created by TGI under this Services Agreement,
either developed solely or jointly with any other party, is the sole
and exclusive property of POPstar. POPstar is the sole owner of all
copyrights, patents and other intellectual property rights in the
Enhancements. TGI hereby assigns to POPstar any rights TGI may have
in the Enhancements and waives all claims with respect to the
Enhancements including any moral rights in the Enhancements or to
its use including the right to restrain or claim damages for any
distortion, mutilation or other modification of the Enhancements and
to restrain use or reproduction of the Enhancements. TGI agrees to
do all things and execute all documents necessary to reflect this
assignment of intellectual property in the Enhancements in POPstar
at any time during or after the term of this Services Agreement.
6.2 TGI warrants that none of the Enhancements nor the
implementation and use by POPstar of any system names, systems and
programs designed pursuant to the Enhancements and provided by TGI
infringe upon or violate any patent, copyright, trade-▇▇▇▇, license,
or other property or contractual right of any third party and TGI
agrees to indemnify and hold harmless POPstar from and against any
losses, costs, damages, claims, actions, suits, liabilities, fees or
expenses arising out of any breach of this warranty. TGI warrants
that this Services Agreement and the Enhancements do not infringe
any proprietary or intellectual property right of any other party,
and TGI shall defend or settle any claim made or any suit or
proceeding brought against POPstar insofar as such claim, suit or
proceeding is based on an allegation that this Services Agreement or
any of the Enhancements supplied to POPstar pursuant to this
Services Agreement infringes the proprietary and intellectual
property rights of any third party in or to any invention, patent,
copyright or any other rights, provided that POPstar shall notify
TGI in writing promptly after the claim, suit or proceeding is
known, and POPstar shall give TGI information and such assistance as
is reasonable in the circumstances. TGI shall have sole authority
to defend or settle the same at TGI's expense. TGI shall indemnify
and hold POPstar harmless from and against any and all such claims
and shall pay all damages and costs finally agreed to be paid in
settlement of such claim, suit or proceeding. This indemnity does
not extend to any claim, suit or proceeding based upon any
infringement or alleged infringement of copyright by the combination
of the Enhancements with other elements not under TGI's sole control
nor does it extend to any Enhancements altered by POPstar either by
enhancement or by combination with product(s) of POPstar's design or
formula. The foregoing states the entire liability of TGI for
proprietary and intellectual proprietary rights infringement related
to the Enhancements. If the Enhancements in any claim, suit or
proceeding is held to infringe any proprietary or intellectual
property rights of any third party and the use thereof is enjoined
or, in the case of settlement as referred to above, prohibited, TGI
shall have the option, at its own expense, to either (i) obtain for
POPstar the right to continue using the infringing item, or (ii)
replace the infringing item or modify it so that it becomes
non-infringing; provided that no such replacement or modification
shall diminish the performance of the Enhancements.
6.3 General knowledge and experience gained by TGI prior to or
during TGI's retainer by POPstar, (including general techniques and
methods not protected by intellectual property rights and developed
by TGI and in the creation of which no confidential information of
POPstar was used) may be used by TGI at any time prior to, during or
subsequent to its retainer. POPstar acknowledges that TGI may be
and could be performing services for businesses other than POPstar.
This Services Agreement shall not prohibit TGI from representing or
performing programming services for such other businesses.
7. Confidentiality
7.1 All data or other information concerning the business,
financial or other affairs of POPstar, including data and
information of third parties which POPstar received pursuant to a
confidentiality or non-disclosure agreement, which is received or to
which access is obtained by TGI or its personnel during the
performance of its obligations under this Services Agreement, shall
be treated as confidential and shall not, either during the term of
this Services Agreement, or at any time thereafter, be divulged or
disclosed or otherwise made known to any other person without the
express written consent of POPstar. TGI agrees to indemnify and
hold harmless POPstar from and against any losses, costs, damages,
claims, actions, suits, liabilities, fees or expenses arising out of
any breach of this Section 7.1.
7.2 TGI agrees that prior to the commencement of or during the
execution of the provisions of the services at POPstar's sole
option, TGI may be required to sign a non-disclosure agreement with
POPstar or its vendors to ensure proprietary information is properly
protected.
8. Termination
8.1 Either party hereto may, at its option, terminate this
Services Agreement by written notice to the other if such other
party defaults in the observance or performance of any obligation on
its part under this Services Agreement and such default in not
remedied within thirty (30) days following which if such default or
if such other party is adjudged bankrupt or insolvent, or a
receiver, receiver-manager, liquidator or trustee in bankruptcy is
appointed in respect of all or substantially all of its business and
undertaking, or it makes any assignments for the benefit of its
creditors or admits in writing its inability to pay its debts
generally as they become due.
8.2 Upon termination of this Services Agreement for any reason:
(a) POPstar shall pay TGI only the actual cost of work
carried out, services performed and materials supplied hereunder up
to the date of termination not previously paid for;
(b) TGI shall deliver to POPstar only the actual work
carried out and materials created up to the date of termination and
paid for; and
(c) each party hereto shall, notwithstanding the
termination of this Services Agreement, continue to observe the
obligations of confidentiality on its part hereunder, and shall not
use nor disclose to any third person any information which is
subject to such obligations without the prior consent of the other
party hereto.
8.3 Termination of this Services Agreement shall not affect,
prejudice or impair any other right or remedy available to the party
effecting such termination, and none of such rights or remedies
shall be exclusive in respect of this Services Agreement, but shall
be in addition to all other rights and remedies available to such
party at law or in equity.
8.4 This Services Agreement will terminate upon termination of the
Licensing Agreement.
9. General
9.1 This Services Agreement shall be construed and shall take
effect in accordance with the laws of the province of British
Columbia and the parties hereto irrevocably attorn to the
jurisdiction of the courts of British Columbia.
9.2 The invalidity of unenforceability for any reason of any term
or condition of this Services Agreement shall not prejudice or
affect the validity or enforceability of the other terms or
conditions hereof.
9.3 This Services Agreement and the Work Orders attached hereto
contain the entire agreement between the parties and to the subject
matter hereof and no amendments shall be effective unless in writing
and signed by both parties.
9.4 Notices hereunder shall be in writing and may be delivered by
hand or sent by registered mail or by fax addressed to the address
for each party respectively set out below or to such other address
as may be substituted in writing:
To TGI: To POPstar:
TGI Technologies Ltd., POPstar Global Communications Inc.
▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇.▇. ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇.▇. KPMG Centre
V5T 1C7. Tortola, British Virgin Islands
Any such notice shall be deemed to have been received by the
party to whom it is addressed, if delivered by hand, when delivered
or, if sent by registered mail, within 48 hours after the posting of
such notice in any government post office or, if sent by fax, on the
date of faxing; provided if such notice is mailed and between the
time of mailing and the actual receipt a mail strike, slowdown or
other labor dispute which might affect delivery occurs, then such
notice shall be effective when actually delivered.
9.5 TGI shall not assign this Services Agreement or any part
thereof without the prior written consent of POPstar.
Notwithstanding any assignment or sub-contracting by TGI of any of
its obligations under this Services Agreement or any Work Order, TGI
shall remain fully responsible for the performance of all of its
obligations under this Services Agreement and all applicable Work
Orders.
9.6 Neither TGI nor POPstar shall disclose to a third party or
parties the terms and conditions of this Services Agreement without
the express written permission of the other. However, TGI may
generally reference the work performed by TGI for POPstar in its
marketing efforts and may use POPstar's name as a reference. TGI
shall not use any service marks or trade-marks used by POPstar or
any of its subsidiaries in the conduct of their respective
businesses without the prior written permission of POPstar.
9.7 Subject to anything to the contrary contained herein, this
Services Agreement shall ensure to the benefit and be binding upon
the respective successor and permitted assigns of the parties hereto.
9.8 If there is any conflict with or inconsistency between the
terms of this Services Agreement and the terms of any Work Order,
then the terms of the Work Order shall govern.
IN WITNESS THEREOF the parties hereto have executed this
Services Agreement effective the 11th day of January, 1999.
.
TGI TECHNOLOGIES LTD.
Per: /s/▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Director
Location and date when executed:
Singapore Jan. 11, 1999
POPSTAR GLOBAL COMMUNICATIONS INC.
Per: /s/▇▇▇▇▇▇▇▇ ▇▇▇
Title: Director
Location and date when executed:
Singapore Jan. 11, 1999
SCHEDULE A - CORE SOFTWARE
The Core Software includes the files in the version 2.3 tree of the
Enroute Eclipse fax server software and
1) A description, giving an overview of how the software works, a
flow diagram indicating the input, flow, processing and output of
information, and specifications for the software, including minimum
hardware requirements.
2) Complete user documentation, including a description of how to
access and use the application, screen prints of menus and
input/output screens, data input descriptions, sample output/report
forms, error code descriptions and solutions where appropriate, and
explanation of all necessary disks and data used by the software.
3) Complete program/technical documentation, including program
source code listings with comments, technical information about
files and their locations, file names, file/database structure,
record structure and layout and data elements.
4) Description of backup and recovery procedures, including
process, medium for backup, and number of diskettes or tapes to do a
complete backup.
5) Master copy of the Core Software on magnetic media, including
all programs, on-line documentation, and any documentation developed
on a computer.
SCHEDULE B.*
WORK ORDER - ENHANCEMENT
BRIEF DESCRIPTION: {brief description of Enhancement}
DETAILED DESCRIPTION: {detailed description of Enhancement}
{specify dollar amount of work order and whether time & materials
(and, if so, hourly rate), fixed price, or 'not to exceed'}
MILESTONES:
RESPONSIBILITIES OF TGI:
RESPONSIBILITIES OF POPSTAR:
ACCEPTANCE TEST PROCEDURE:
(a) POPSTAR AND TGI SHALL JOINTLY VERIFY THAT EACH ENHANCEMENT CONFORMS
TO THE SPECIFICATIONS ESTABLISHED BY POPSTAR AND TGI SHALL ASSIST
POPSTAR IN THE PERFORMANCE OF CONFORMANCE TESTING. IF THE
ENHANCEMENTS FUNCTION TO THE SATISFACTION OF POPSTAR, POPSTAR SHALL
CONFIRM SAME BY DELIVERING A SIGNED CERTIFICATE OF ACCEPTANCE TO
TGI. IF POPSTAR DOES NOT DELIVER A SIGNED NOTICE OF ACCEPTANCE TO
TGI OR IF POPSTAR USES ANY OF THE ENHANCEMENTS IN A LIVE PRODUCTION
ENVIRONMENT, THE ENHANCEMENTS SHALL BE DEEMED TO BE ACCEPTED.
(b) IF THE ENHANCEMENTS DO NOT FUNCTION TO THE SATISFACTION OF
POPSTAR, WITHIN FOURTEEN (14) DAYS OF TESTING, POPSTAR SHALL
IDENTIFY IN WRITING ANY DEFICIENCIES IN THE ENHANCEMENTS AND GIVE
NOTICE THEREFOR TO TGI.
(c) TGI SHALL USE BEST EFFORTS TO CORRECT ANY DEFICIENCIES
IDENTIFIED BY POPSTAR IMMEDIATELY UPON RECEIPT OF NOTICE OF SUCH
DEFICIENCIES AND PRESENT POPSTAR WITH THE CORRECTED VERSION OF THE
ENHANCEMENTS FOR TESTING BY POPSTAR.
(d) THIS PROCEDURE SHALL BE REPEATED UNTIL POPSTAR ACCEPTS THE
ENHANCEMENTS BY CONFIRMING THEIR CONFORMANCE TO THE SPECIFICATIONS
PROVIDED BY POPSTAR.
FEES: DIRECT AND INDIRECT COSTS PLUS THE PERCENTAGE SET OUT IN
SCHEDULE C TO THE SERVICES AGREEMENT. FEES SHALL BE TGI'S STANDARD
FEES CHARGED TO ITS CUSTOMERS GENERALLY AND SUBJECT TO INCREASE
ANNUALLY PROVIDED ONLY THAT SUCH INCREASE WILL NOT BE GREATER THAN
10% ANNUALLY.
PAYMENT: PAYMENT FOR THE SERVICES PROVIDED HEREIN IS AS FOLLOW:
TGI WILL INVOICE POPSTAR MONTHLY. THIS INVOICE IS PAYABLE UPON
RECEIPT. ALL EXPENSES WILL BE INVOICED.
WORK ORDER SIGNING OF THIS WORK ORDER INDICATES AGREEMENT FOR TGI TO
SIGN-OFF: PERFORM THE WORK OUTLINED IN THE TASK LIST AND TO THE
TERMS OUTLINED ABOVE.
APPROVED BY POPSTAR GLOBAL COMMUNICATIONS, INC.
PER: ___________________ DATE: _________________
APPROVED BY TGI TECHNOLOGIES LTD.
PER: ___________________ DATE: _________________
SCHEDULE C - PERCENTAGE ▇▇▇▇-UP ON COSTS
FIFTEEN (15) PERCENT.
ASSIGNMENT OF TRADE-▇▇▇▇
WHEREAS TGI Technologies Ltd. of ▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇.▇. ▇▇▇ I
C7 is the recorded owner of the trade-▇▇▇▇ POPSTAR registered in Canada
under registration No. TMA 503,556, and used in association with computer
software.
NOW THEREFORE in consideration of Ten Dollars ($10.00) and other good and
valuable consideration, the receipt and sufficiency of which the parties
acknowledge, TGI Technologies Ltd. of ▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇.▇.
▇▇▇ IC7 sells, assigns, and transfers to POPstar Global Communications Inc.
of ▇.▇. ▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ all right,
title, and interest in the trade-▇▇▇▇ POPSTAR, all rights to Canadian
registration TMA 503.556 and the goodwill of the business relating to the
trade-▇▇▇▇.
EXECUTED at ▇▇▇▇▇ ▇▇, ▇▇▇ ▇▇▇▇., ▇▇▇▇▇▇▇▇▇, this 12th day of January, 1999.
TGI Technologies Ltd.
per: /s/▇▇▇▇ ▇▇▇▇▇▇▇▇▇
AMENDMENT TO SERVICES AGREEMENT
THIS AMENDMENT AGREEMENT is dated the 24th day of August, 1999
and is made between:
1. TGI Technologies Ltd., a British Columbia company with
its office at ▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇, ▇▇▇▇▇▇ (hereinafter referred to as
"TGI"); and
2. POPstar Global Communications Inc., a British Virgin
Islands company with its office at KPMG Centre, Tropic
Isle Building, P.O. Box 3443, Road Town, Tortola,
British Virgin Islands (hereinafter referred to as
"POPstar").
WHEREAS:
(A) TGI and POPstar have entered into a services agreement
dated January 11, 1999 (the "Services Agreement").
(B) TGI and POPstar wish to enter into this Agreement under
which they agree to clarify certain of the provisions of
the Services Agreement.
IT IS HEREBY AGREED AS FOLLOWS:
1. INTERPRETATION
1.1 Except where the context otherwise requires and save as
otherwise expressly defined herein, words and
expressions defined in the Services Agreement shall have
the same meanings and construction when used in this
Agreement (including the Recitals hereto). All terms
defined in these Recitals shall have the same meanings
when used throughout this Agreement.
1.2 Except where the context otherwise requires, words
importing the singular include the plural and vice
versa, words importing a gender includes every gender
and references to persons include bodies corporate or
unincorporate, any state or agency thereof and any other
entity.
1.3 Headings are for ease of reference only and have no
legal effect.
1.4 Except where the context otherwise requires, references
to any person include its successors and permitted assigns.
1.5 A reference to a document includes any agreement in
writing, or any certificate, notice, instrument or other
document of any kind and shall include all amendments or
supplements to, or replacements or novations of that
document.
2. AMENDMENTS TO THE SERVICES AGREEMENT
2.1 The parties hereby agree and acknowledge that the
Services Agreement shall be amended in the following
manner with effect from the date of the Services Agreement.
Section 9.8 of the Services Agreement be deleted and the
following substituted therefor:
"9.8 If there is any conflict with or inconsistency between
the terms of this Services Agreement and the terms of any Work
Order, then the terms of the Work Order shall govern."
3. MISCELLANEOUS
3.1 This Agreement is supplemental to and shall be read in
conjunction with the Services Agreement which, save for
those provisions which are modified hereby or
inconsistent with the terms contained herein, shall
continue in full force and effect. Subject to the
foregoing, any reference to the Services Agreement shall
accordingly be deemed to include this Agreement.
3.2 This Agreement shall be governed by and construed in
accordance with the laws of the Province of British
Columbia, without regard to any provisions thereof
relating to conflicts of laws among different
jurisdictions. The parties hereto hereby submit to the
jurisdiction of the courts located in the Province of
British Columbia.
3.3 This Agreement may be signed in one or more
counterparts, all of which taken together shall
constitute an entire agreement.
IN WITNESS WHEREOF this Agreement has been duly executed the day
and year first above written.
TGI TECHNOLOGIES LTD. POPSTAR GLOBAL
COMMUNICATIONS INC.
Signature: /s/▇▇▇▇ ▇▇▇▇▇▇▇▇▇ Signature: /s/▇▇▇▇▇▇▇▇ ▇▇▇
By: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ By: ▇▇▇▇▇▇▇▇ ▇▇▇
Title: President Title: Chairman
