EXHIBIT 10.10
CREATIVE CONSULTING AGREEMENT
THIS CREATIVE CONSULTING AGREEMENT ("Agreement") is made and entered
into in duplicate effective this 15th day of October, 2001 ("Effective Date"),
by and among Blade Internet Ventures Inc. ("Corporation"), and Westin Creative
Consultants Inc., a British Columbia corporation ("Consultant").
RECITALS
A. The Corporation is in the business of offering organizations,
clubs and events online registration services through a Web portal.
B. The Consultant is in the business of providing creative and
design consulting services to businesses.
C. The Corporation desires to retain the services the Consultant
to consult with the officers of the Corporation regarding various design,
marketing, advertising, packaging and other creative matters relating to the
business of the Corporation.
D. The Consultant desires to consult with officers of the
Corporation, and to undertake for and on behalf of the Corporation, the
direction of certain functions regarding various design, marketing, advertising,
packaging and other creative matters relating to the business of the Corporation
and such other matters as requested by the Corporation, on the terms and subject
to the conditions specified in this Agreement.
NOW, THEREFORE, IN CONSIDERATION OF THE MUTUAL PROMISES, UNDERTAKINGS AND
COVENANTS SPECIFIED HEREIN, AND FOR OTHER GOOD AND VALUABLE CONSIDERATION, THE
RECEIPT AND SUFFICIENCY OF WHICH ARE HEREBY ACKNOWLEDGED, WITH THE INTENT TO BE
OBLIGATED LEGALLY AND EQUITABLY, THE PARTIES AGREE WITH EACH OTHER AS FOLLOWS:
1. INCORPORATION OF RECITALS. The recitals of this Agreement,
specified above, by this reference, are made a part of this
Agreement as though specified completely and specifically at
length in this Agreement.
2. TERM OF AGREEMENT. The respective duties and obligations of
the parties shall commence on the Date Effective and shall
continue for a period of twelve (12) months.
3. CONSULTATIONS. The Consultant shall make itself available to
consult with the officers of the Corporation, at reasonable
times, concerning any issue of importance regarding design,
marketing, advertising and other relevant creative matters
relating to the business of the Corporation. Specifically, it
is anticipated that the Consultant shall assist the officers
of the Corporation in matter relating to the design and
creation of brochures; the design and creation web sites; the
preparation of annual, quarterly and other reports; the
creation and design of logos; the creation and design of
stationery; the creation and design of packaging products; the
development and maintenance of the Corporation's brands; the
management of events and other promotional occasions; and
marketing to the business and consumer communities.
4. REVISION OF MATERIALS. The Corporation shall have the right to
except or reject any materially submitted by the Consultant
and to edit and revise any such material. The Consultant shall
come on request of the Corporation, make any and all
reasonable and necessary revisions and proof read the revised
materials. Any such revisions or proof reading work shall be
done promptly and the
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corrected materials shall be returned to the Corporation for
further consideration.
5. GRANT OF PUBLISHING RIGHTS. The Consultant hereby grants to
the Corporation the non-exclusive right to publish any and all
materials created by the Consultant pursuant to this Agreement
in the United States and Canada and other countries of the
world during the term of this Agreement.
6. OWNERSHIP OF MATERIALS. On the delivery to the Corporation by
the Consultant of the materials created by the Consultant
pursuant to the provisions of this Agreement, the Corporation
shall become the sole owner thereof, and the Consultant shall
retain no ownership, interest, or rights therein.
7. MANAGEMENT POWER OF THE CONSULTANT. The business affairs of
the Corporation and the operation of business of the
Corporation shall be conducted by the officers, administrative
staff and employees of the Corporation. In that regard, it is
not the intention of the Corporation to grant or delegate to
the Consultant, and no provision of this Agreement shall be
construed to grant or delegate to the Consultant any power of
direction, management, supervision or control of the
administrative staff or other employees of the Corporation.
8. CONSULTANT TO ACT AS AGENT. From time to time, the Corporation
may deem it advisable to enter into agreements with various
persons. Regarding those agreements, the Consultant shall be,
and hereby is, designated as an agent of the Corporation for
the purpose of negotiating the terms and conditions of those
agreements provided however, that the Corporation must provide
its approval for any such agreement prior to such agreement
becoming binding on the Corporation. The Consultant, however,
shall not obligate the Corporation to any such agreement
without first obtaining the approval of the terms and
conditions of any such agreement from the Board of Directors
of the Corporation.
9. LIMITED LIABILITY. With regard to the services to be performed
by the Consultant pursuant to the provisions of this
Agreement, the Consultant shall not be liable to the
Corporation, or any person who may claim any right due to that
person's relationship with the Corporation, for any acts or
omissions in the performance of those services on the part of
the Consultant or on the part of any agent or employee or of
the Consultant, except when those acts or omissions of the
Consultant are due to the willful misconduct of the Consultant
or any such agent or employee.
10. ACTS BY AGENTS OF CONSULTANT. It is understood and agreed that
any consultation given or service performed by any duly
authorized agent or representative of the Consultant pursuant
to the provisions of this Agreement shall constitute the
direction or the performance of service by the Corporation.
11. COMPENSATION.
a. As consideration for the services to be provided by
the Consultant to the Corporation pursuant to the provisions
of this Agreement, the Corporation hereby grants to the
Consultant the right and option to purchase, on the terms and
subject to the conditions specified in this Agreement, 500,000
shares of the Corporation's common stock. The purchase price
shall be, and hereby is, $0.75 per share.
b. From and after October 15, 2001, and during and until
October 15, 2002, the Consultant shall have the right to
purchase from the Corporation 500,000 shares of the
Corporation's common stock at the purchase price specified in
Paragraph a. of this Section 11 ("Option"). The Consultant
shall
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exercise the Option by delivery to the Corporation of a
written notice of exercise accompanied by a certified or
cashier's check in payment of the purchase price. Promptly
upon receipt of such notice of exercise and such check, the
Corporation will deliver or cause to be delivered to the
Consultant stock certificate(s) representing the number of
shares of the Corporation's common stock purchased in
accordance with the provisions of this Section 11 and duly
registered in the name of the Consultant.
c. During such time as the Option remains outstanding
and unexpired, the Corporation will reserve for issuance, upon
the exercise of the Option, the number of shares of the
Corporation's common stock that are subject to the Option. The
shares of the Corporation's common stock subject to the
Option, when issued, shall be fully paid and nonassessable.
The shares that are the subject of the Option will be issued
in reliance on exemptions from applicable securities laws and
unless registered pursuant to a SB-2 or other registration
statement such shares issued on exercise of the Option will be
subject to resale restrictions and the share certificates will
be appropriately legended. The Corporation will pay, when due
and payable, any and all taxes or fees that may be payable by
the Corporation with respect to the grant of the Option or the
issuance of any shares of the Corporation's common stock or
certificates therefore subject to the Option.
d. The existence of the Option shall not affect in any
way the right or power of the Corporation or its stockholders
to make or authorize any or all adjustments,
recapitalizations, reorganizations, or other changes in the
Corporation's capital structure or the Corporation's business,
or any merger or consolidation of the Corporation or any issue
of bonds, debentures, preferred stock having a preference to
or affecting the Corporation's capital stock or the rights
thereof, or the issuance of any securities convertible into
any such capital stock or of any rights, options, or warrants
to purchase any such capital stock, or the dissolution or
liquidation of the Corporation, any sale or transfer of all or
any part of the Corporation's assets or business, or any other
act or proceeding of the Corporation, whether of a similar
character or otherwise.
e. The securities with respect to which the Option is
granted are shares of the common stock of the Corporation as
presently constituted, but if and whenever, prior to the
delivery by the Corporation of all the shares of that common
stock with respect to which the Option is granted, the
Corporation shall effect a subdivision or consolidation of
shares or other capital readjustment, the payment of a stock
dividend, or other increase or reduction of the number of
shares of such common stock issued and outstanding without
receiving compensation therefore in money, services, or
property, the number of shares of such common stock then
remaining subject to the Option shall (a) in the event of an
increase in the number of outstanding shares of such common
stock, be proportionately increased, and the cash
consideration payable per share of such common stock shall be
proportionately reduced; and (b) in the event of a reduction
in the number of outstanding shares of such common stock, be
proportionately reduced, and the cash consideration payable
per share of such common stock shall be proportionately
increased.
f. Following the merger of one or more corporations with
and into the Corporation or any consolidation of the
Corporation with and into one or more corporations, the
exercise of the Option shall apply to the shares of common
stock of the surviving corporation.
12. MINIMUM AMOUNT OF SERVICE. Any other provision specified in
this Agreement notwithstanding, the Consultant shall devote
only so much time in the Consultant's sole and absolute
discretion, determines to be necessary or appropriate.
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13. CONFIDENTIAL INFORMATION.
a. Any and all confidential information communicated to
Consultant by Client, identified as such, regarding Client and
its business ("Confidential Information"), including any
Confidential Information gained by Consultant or any of its
agents, counsel, personnel, accountants, employees or other
representatives ("Consultant's Representatives"), whether or
not that Confidential Information was communicated directly or
indirectly or intentionally or inadvertently, is confidential.
b. During the term of this Agreement and at all times
thereafter Consultant shall use its best efforts to prevent
inadvertent disclosure to any other person of any Confidential
Information. Consultant shall instruct Consultant's
Representatives to keep that information confidential by using
the same care and discretion Consultant's Representatives use
with similar information and data designated by Consultant as
confidential.
c. Any and all Confidential Information constitutes an
exceptionally invaluable trade secret of Client.
d. The Confidential Information shall belong exclusively
to, and shall be the property of Client.
14. COPIES OF CONFIDENTIAL INFORMATION. Copies of any and all
Confidential Information may not be made without the express
written permission of Client. Any and all such copies shall be
returned to Client with the originals of that Confidential
Information.
15. RETURN OF CONFIDENTIAL INFORMATION. Consultant shall return to
Client, promptly at request of Client, any and all
Confidential Information which Client shall have provided to
Consultant.
16. OWNERSHIP OF BOOKS, RECORDS, AND PAPERS.
a. All records of the accounts of customers, debtors,
service providers, suppliers, distributors, clients, and any
other records and books relating in any manner whatsoever to
the conduct of Client's business during the term of this
Agreement, whether prepared by Consultant or otherwise coming
into Consultant's possession, shall be the exclusive property
of Client.
b. All such books and records shall be returned
immediately to Client by Consultant on any termination of this
Agreement.
17. COMPLIANCE WITH LAWS. In carrying out its duties and
obligations under this Agreement the Consultant will adhere to
and comply with all applicable laws to which it is subject
including, but not limited to, the securities laws of both
Canada and the United States.
18. SERVICES OF CONSULTANT NOT EXCLUSIVE. The Consultant may
represent, perform services for, and be employed by, any
additional persons as the Consultant, in the Consultant's sole
and absolute discretion, determines to be necessary or
appropriate.
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19. EMPLOYMENT OF ASSISTANTS. If it is necessary for the
Consultant to have the aid of assistants or the services of
other person, in order to perform the duties and obligations
required of the Consultant pursuant to this Agreement, the
Consultant may from time to time, employ, engage or retain the
services of such other person.
20. RELATIONSHIP CREATED. The Consultant is not an employee of the
Corporation for any purpose whatsoever, but is an independent
contractor. The Corporation is interested only in the results
obtained by the Consultant, who shall have the sole and
exclusive control of the manner and means of performing
pursuant to this Agreement. The Corporation shall not have the
right to require the Consultant to collect accounts,
investigate customer or shareholder complaints, attend
meetings, periodically report to the Corporation, follow
prescribed itineraries, keep records of business transacted,
make adjustments, conform to particular policies of the
Corporation, or do anything else which would jeopardize the
relationship of independent contractor between the Corporation
and the Consultant. All expenses and disbursements, including,
but not limited to, those for travel and maintenance,
entertainment, office, clerical and general administrative
expenses, that may be incurred by the Consultant in connection
with this Agreement shall be borne and paid wholly and
completely by the Consultant, and the Corporation shall not be
in any way responsible or liable therefore.
21. INDEMNIFICATION. Each party shall save the other party
harmless from and against and shall indemnify the other party
for any liability, loss, costs, expenses, or damages however
caused by reason of any injury (whether to body, property, or
personal or business character or reputation) sustained by any
person or to any person or to property by reason of any act,
neglect, default, or omission of such party or any of such
party's agents, employees, or other representatives, and, such
party shall pay any and all amounts to be paid or discharged
in case of an action or any such liability less costs,
expenses, or damages. If either party is sued in any court for
damages by reason of any of the acts of the other party
referred to in this paragraph, such other party shall defend
said action (or cause same to be defended) at such other
party's own expense and shall pay and discharge any judgment
that may be rendered in any such action; if such other party
fails or neglects to so defend in said action, the party sued
may defend the same and any expenses, including reasonable
attorneys' fees, which such party may pay or incur in
defending said action and the amount of any judgment which
such party may be required to pay as a result of said action
shall be promptly reimbursed upon demand. The indemnification
specified by the provisions of this Section 24 shall survive
the termination of this Agreement.
22. GOVERNMENTAL RULES AND REGULATIONS. The provisions of this
Agreement and the relationship contemplated by the provisions
of this Agreement are subject to any and all present and
future orders, rules and regulations of any duly constituted
authority having jurisdiction of that relationship.
23. NOTICES. All notices, requests, demands or other
communications pursuant to this Agreement shall be in writing
or by telex or facsimile transmission and shall be deemed to
have been duly given (i) on the date of service, if delivered
in person or by telex or facsimile transmission (with the
telex or facsimile confirmation of transmission receipt
serving as confirmation of service when sent and provided
telexed or telecopied notices are also mailed by first class,
certified or registered mail, postage prepaid); or (ii) 48
hours after mailing by first class, registered or certified
mail, postage prepaid, and properly addressed as follows:
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If to the Corporation: Blade Internet Ventures, Inc.
2770 - 000 Xxxx Xxxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxx Xxxxxxxx X0X 0X0
Facsimile: 604-638.7741
If to the Consultant: Westin Creative Consultants, Inc.
0000-000 Xxxxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxx Xxxxxxxx X0X 0X0
Facsimile Machine: 604.688.7121
or at such other address as the party affected may designate
in a written notice to such other party in compliance with
this section.
24. ENTIRE AGREEMENT. This Agreement is the final written
expression and the complete and exclusive statement of all the
agreements, conditions, promises, representations, warranties
and covenants between the parties with respect to the subject
matter of this Agreement, and this Agreement supersedes all
prior or contemporaneous agreements, negotiations,
representations, warranties, covenants, understandings and
discussions by and between and among the parties, their
respective representatives, and any other person, with respect
to the subject matter specified in this Agreement. This
Agreement may be amended only by an instrument in writing
which expressly refers to this Agreement and specifically
states that such instrument is intended to amend this
Agreement and is signed by each of the parties.
25. NUMBER AND GENDER. Whenever the singular number is used in
this Agreement, and when required by the context, the same
shall include the plural, and vice versa; the masculine gender
shall include the feminine and neuter genders, and vice versa;
and the word "person" shall include corporation, firm, trust,
estate, joint venture, governmental agency, sole
proprietorship, political subdivision, company, congregation,
organization, fraternal order, club, league, society,
municipality, association, joint stock company, partnership or
other form of entity.
26. EXECUTION IN COUNTERPARTS. This Agreement may be prepared in
multiple copies and forwarded to each of the parties for
execution. All of the signatures of the parties may be affixed
to one copy or to separate copies of this Agreement and when
all such copies are received and signed by all the parties,
those copies shall constitute one agreement which is not
otherwise separable or divisible.
27. REIMBURSEMENT OF EXPENSES. The Corporation shall promptly
reimburse the Consultant for all reasonable business expenses
incurred by the Consultant in connection with production of
materials and other products requested by the Corporation of
the Consultant outside the provisions of this Agreement;
provided, however, that the Consultant furnishes to the
Corporation adequate records and other documentary evidence
substantiating each such expenditure.
28. ASSIGNABILITY. Neither party shall sell, assign, transfer,
convey or encumber this Agreement or any right or interest in
this Agreement or pursuant to this Agreement, or suffer or
permit any such sale, assignment, transfer or encumbrance to
occur by operation of law without the prior written consent of
the other party. In the event of any sale, assignment,
transfer or encumbrance consented to by such other party, the
transferee or such transferee's legal representative shall
agree with such other party in writing to assume personally,
perform and be obligated by, the covenants, obligations,
warranties, representations, terms, conditions and provisions
specified in this Agreement.
29. SEVERABILITY. In the event any part of this Agreement or the
subject matter of this Agreement, for
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any reason, is determined by a court of competent jurisdiction
to be invalid, such determination shall not affect the
validity of any remaining portion or subject matter of this
Agreement, which remaining portion or subject matter shall
remain in full force and effect as if this Agreement had been
executed with the invalid portion or subject matter thereof
eliminated. It is hereby declared the intention of the parties
that they would have executed the remaining portion or subject
matter of this Agreement without including any such part,
parts, portion or subject matter which, for any reasons, may
be hereafter determined to be invalid.
30. RECOVERY OF ENFORCEMENT COSTS. In the event any party shall
institute any action or proceeding to enforce any provision of
this Agreement to seek relief from any violation of this
Agreement, or to otherwise obtain any judgment or order
relating to or resulting from the subject matter of this
Agreement, each prevailing party shall be entitled to receive
from each losing party such prevailing party's actual
attorneys' fees and costs incurred to prosecute or defend such
action or proceeding.
31. CAPTIONS AND INTERPRETATIONS. Captions of the sections of this
Agreement are for convenience and reference only, and the
works specified therein shall in no way be held to explain,
modify, amplify or aid in the interpretation, construction, or
meaning of the provisions of this Agreement. The language in
all parts to this Agreement, in all cases, shall be construed
in accordance with the fair meaning of that language as if
prepared by all parties and not strictly for or against any
party. Each party and counsel for such party have reviewed
this Agreement. The rule of construction which requires a
court to resolve any ambiguities against the drafting party
shall not apply in interpreting the provisions of this
Agreement.
32. MODIFICATION. No modification, supplement or amendment of this
Agreement or of any covenant, representation, warranty,
condition, or limitation specified in this Agreement shall be
valid unless the same is made in writing and duly executed by
both parties.
33. FURTHER ASSURANCES. The parties shall from time to time sign
and deliver any further instruments and take any further
actions as may be necessary to effectuate the intent and
purposes of this Agreement.
34. SUCCESSORS AND ASSIGNS. This Agreement and each of its
provisions shall obligate the heirs, executors,
administrators, successors, and assigns of each of the
parties. Nothing specified in this section, however, shall be
a consent to the assignment or delegation by any party of such
party's respective rights and obligations created by the
provisions of this Agreement.
35. SURVIVAL OF REPRESENTATIONS AND WARRANTIES. All
representations and warranties made by each party to this
Agreement shall be deemed made for the purpose of inducing the
other party to enter into and execute this Agreement. The
representations and warranties specified in this Agreement
shall survive the termination of this Agreement and shall
survive any investigation by either party whether before or
after the execution of this Agreement.
36. CONCURRENT REMEDIES. No right or remedy specified in this
Agreement conferred on or reserved to the parties is exclusive
of any other right or remedy specified in this Agreement or by
law or equity provided or permitted; but each such right and
remedy shall be cumulative of, and in addition to, every other
right and remedy specified in this Agreement or now or
hereafter existing at law or in equity or by statute or
otherwise, and may be enforced concurrently therewith or from
time to time. The termination of this Agreement for any reason
whatsoever shall not prejudice any right
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or remedy which any party may have, either at law, in equity,
or pursuant to the provisions of this Agreement.
37. GOVERNING LAW. This Agreement shall be deemed to have been
entered into in the City of Vancouver, Province of British
Columbia, and all questions concerning the validity,
interpretation, or performance of any of the terms, conditions
and provisions of this Agreement or of any of the rights or
obligations of the parties shall be governed by, and resolved
in accordance with, the laws of the Province of British
Columbia, without regard to conflicts of law principles. Any
and all actions or proceedings, at law or in equity, to
enforce or interpret the provisions of this Agreement shall be
litigated in the Supreme Court of British Columbia within the
City of Vancouver, Province of British Columbia. No claim,
demand, action, proceeding, litigation, hearing, motion or
lawsuit resulting from or with respect to this Agreement shall
be commenced or prosecuted in any jurisdiction other than the
Province of British Columbia, and any judgment, determination,
finding or conclusion reached or rendered in any other
jurisdiction shall be null and void. Each party hereby
consents expressly to the jurisdiction of any court located
within the Province of British Columbia and consents that any
service of process in such action or proceeding may be made by
personal service upon such party wherever such party may be
then located, or by certified or registered mail directed to
such party at such party's last known address.
38. FORCE MAJEURE. If any party is rendered unable, completely or
partially, by the occurrence of an event of "force majeure"
(hereinafter defined) to perform such party's obligations
created by the provisions of this Agreement, such party shall
give to the other party prompt written notice of the event of
"force majeure" with reasonably complete particulars
concerning such event; thereupon, the obligations of the party
giving such notice, so far as those obligations are affected
by the event of "force majeure," shall be suspended during,
but no longer than, the continuance of the event of "force
majeure." The party affected by such event of "force majeure"
shall use all reasonable diligence to resolve, eliminate and
terminate the event of "force majeure" as quickly as
practicable. The requirement that an event of "force majeure"
shall be remedied with all reasonable dispatch as hereinabove
specified, shall not require the settlement of strikes,
lockouts or other labor difficulties by the party involved,
contrary to such party's wishes, and the resolution of any and
all such difficulties shall be handled entirely within the
discretion of the party concerned. The term "force majeure" as
used in this Agreement shall be defined as and mean any act of
God, strike, civil disturbance, lockout or other industrial
disturbance, act of the public enemy, war, blockage, public
riot, earthquake, tornado, hurricane, lightning, fire, public
demonstration, storm, flood, explosion, governmental action,
governmental delay, restraint or inaction, unavailability of
equipment, and any other cause or event, whether of the type
enumerated specifically in this section or otherwise, which is
not reasonably within the control of the party claiming such
suspension.
39. CONSENT TO AGREEMENT. By executing this Agreement, each party,
for itself represents such party has read or caused to be read
this Agreement in all particulars, and consents to the rights,
conditions, duties and responsibilities imposed upon such
party as specified in this Agreement. Each party represents,
warrants and covenants that such party executes and delivers
this Agreement of its own free will and with no threat, undue
influence, menace, coercion or duress, whether economic or
physical. Moreover, each party represents, warrants, and
covenants that such party executes this Agreement acting on
such party's own independent judgment and upon the advice of
such party's counsel.
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IN WITNESS WHEREOF the parties have executed this Creative Consulting Agreement
in duplicate and in multiple counterparts, each of which shall have the force
and effect of an original, effective as of the date specified in the preamble of
this Agreement.
"CLIENT" "CONSULTANT"
Blade Internet Ventures Inc. Westin Creative Consultants Inc.
a Nevada corporation a British Columbia corporation
By: By:
-------------------------------- --------------------------------
Its: President Its: President
