CONSULTING AGREEMENT
Exhibit
10.1
THIS
AGREEMENT
made
with effect from the 23rd day of June, 2005 (the “Effective Date”)
BETWEEN:
RWH
Management Services Ltd.
00
Xxxxxxxx Xxxx X.X., Xxxxxxx, Xxxxxxx, X0X 0X0
(the
“Consultant”)
AND:
Elmworth
Energy Corporation
0000,
000-0xx
Xxxxxx
XX, Xxxxxxx, Xxxxxxx, X0X 0X0
(the
“Company”)
RECITALS:
A. The
Company has requested RWH Management Services Ltd.'s(" the Consultant")
assistance, to manage and grow the Company; and
B. The
Company has agreed to pay the fees for work undertaken on behalf of the Company,
on the terms and conditions contained herein.
WITNESSES
THAT in
consideration of the premises, and other good and valuable consideration,
the
receipt and sufficiency of which is hereby acknowledged, the parties agree
as
follows:
ARTICLE
1
DEFINITIONS
AND INTERPRETATION
| 1.1 |
Entire
Agreement
|
This
Agreement supersedes all previous invitations, proposals, letters,
correspondence, negotiations, promises, agreements, covenants, conditions,
representations and warranties with respect to the subject matter of this
Agreement. There is no representation, warranty, collateral term or condition
affecting this Agreement for which any party can be held responsible in any
way,
other than as expressed in writing in this Agreement.
| 1.2 |
Amendments
|
No
change
or modification of this Agreement will be valid unless it is in writing and
signed by each party to this Agreement.
| 1.3 |
Invalidity
of Particular
Provision
|
It
is
intended that all of the provisions of this Agreement will be fully binding
and
effective between the parties. In the event that any particular provision
or
provisions or a part of one or more is found to be void, voidable or
unenforceable for any reason whatsoever, then the particular provision or
provisions or part of the provision will be deemed severed from the remainder
of
this Agreement. The other provisions of this Agreement will not be affected
by
the severance and will remain in full force and effect.
| 1.4 |
Governing
Law
|
This
Agreement will be governed by and construed in accordance with the laws of
the
Province of Alberta and the laws of Canada applicable in such
Province.
ARTICLE
2
SERVICES
AND REMUNERATION
| 2.1 |
Services
|
The
Consultant agrees to use its reasonable efforts to:
(a) Assume
the responsibilities of President of the Company;
(b) Execute
the Company’s operating plan; and,
(c) Assist
management and the Board of Directors of the Company as requested.
| 2.2 |
Remuneration
|
For
providing the services set out in 2.1 above, the Company agrees to pay the
Consultant the following:
| (a) |
$
20,000 US (plus GST) per month payable monthly and commencing of
the
effective date of June 20, 2005. Funds to be paid by electronic
transfer.
|
| 2.3 |
Consultant
Not
Employee
|
The
parties agree that the Consultant is not an employee of the Company and,
as
such, save as required by law; there shall be no deductions for any statutory
withholdings such as income tax, Canada Pension Plan, Unemployment Insurance
or
Worker’s Compensation.
| 2.4 |
Statutory
Withholdings
|
The
Consultant agrees to make and remit all statutory withholdings as may be
required to be made by the Consultant in connection with the performance
of its
services for the Company.
ARTICLE
3
GENERAL
OBLIGATIONS OF THE CONSULTANT
| 3.1 |
The
Company’s Ownership of
Rights
|
The
Consultant acknowledges and agrees as follows with respect to the ownership
of
rights by the Company and the limitation of the Consultant’s
rights:
| (a) |
The
Consultant acquires no rights in any inventions or developments
or work
products, including, but not limited to, documents, written materials,
programs, designs, discs and tapes (the “Work Products”) resulting from,
derived from or otherwise related to the performance of the Services
by
the Consultant or the Confidential Information. All such inventions,
developments and Work Products are the property of the Company.
The
Consultant will promptly and duly execute and deliver to the Company
such
further documents and assurances and take such further action as
the
Company may from time to time request in order to more effectively
carry
out the intent and purpose of this section, and to establish and
protect
the rights, interests and remedies of the
Company.
|
| (b) |
The
Consultant will not at any time apply for any copyright, trade
xxxx,
patent, or other intellectual property protection which would affect
the
ownership by the Company of any rights in the intellectual property
associated with the Work Products or file any document with any
government
authority anywhere in the world or take any other action which
could
affect such ownership of any intellectual property associated with
the
Work Products or aid or abet anyone else in doing
so.
|
ARTICLE
4
TERM
4.1 This
Agreement will take effect on the Effective Date and will continue in full
force
and effect for a period of two years with automatic one year renewals unless
terminated by one of the parties in accordance with this Agreement.
4.2 Notwithstanding
any other provision of this Agreement, the Consultant or the Company may,
at any
time, give three month’s advance written notice to the other of its intention to
terminate this Agreement and on the expiration of such period this Agreement
shall be terminated. Such notice may expire on any day of the month and any
remuneration payable hereunder shall be proportioned to the date of such
termination.
ARTICLE
5
UNAUTHORIZED
DISCLOSURE AND UNFAIR COMPETITION
| 5.1 |
Unauthorized
Disclosure
|
The
consultant acknowledges that:
|
(a)
|
The
Consultant will be provided with access to confidential and proprietary
information and knowledge relating to the business of the Company
and the
affairs of clients and prospective clients of the Company; and
|
| (b) |
The
Consultant will be advanced and promoted by the Company to clients
and
prospective clients of the Company as a person of special competence
in
the fields comprising the business of the
Company.
|
The
information and knowledge referred to in paragraph (a) above collectively
comprises an important and valuable asset of the Company and the parties
hereto
agree and acknowledge that any disclosure or unauthorized use of any such
information or knowledge by the Consultant will cause damage to the Company.
The
Consultant covenants and agrees that, save and except in the pursuit of the
business and affairs of the Company:
| (a) |
It
will not, either during the term of this Agreement or within the
period of
one (1) year thereafter, directly or indirectly, use or disclose
to any
person, firm, or corporation, any information relating to the financial
status, existing or prospective clients or business methods of
the
Company, which the Consultant may have acquired in the course of,
or as
incidental to, its providing consulting services to the Company
or the
Company’s clients;
|
| (b) |
It
will not, either during the term of this Agreement or at any time
thereafter, remove originals or copies of any reports, records,
memoranda
or data of any kind or description concerning the business and
affairs of
the Company, or any client or prospective client of the Company,
even
where such reports or memoranda have been furnished to or prepared
by the
Consultant during the term of this Agreement, nor shall the Consultant
make copies or notes thereof, of any kind or description, for its
own use
or the use of others; and
|
| (c) |
Upon
the termination of this Agreement by either party for any reason
whatsoever, the Consultant shall immediately turn over to the Company,
all
such documents and data referred to in paragraph (b) above, which
may be
in its possession.
|
| 5.2 |
Unfair
Competition
|
If
this
Agreement is terminated by the Company or by the Consultant for any reason
whatsoever, it is agreed that the Consultant, for a period of one (1) year
following the termination of this Agreement shall not individually or in
partnership or jointly or in conjunction with any person or persons, firm,
association, syndicate, company, corporation or entity as principal, agent,
employee, shareholder, owner, investor, partner or in any other manner
whatsoever, engage in any solicitation of business from or employment with
a
client or customer of the Company, or an active prospective client of the
Company which the Consultant contacted, solicited, served or received any
business from during the period of providing services to the Company. The
consultant has the right to enter into business relationships or employment
with
persons, firms, associations, syndicates, companies, corporations known to
the
consultant prior to the commencement of this agreement.
The
Consultant agrees that the remedy at law for any breach by it of the provisions
of this Article may be inadequate and that in the event of such breach, the
Company shall be entitled to make an application to the appropriate Court
granting the Company temporary and/or permanent injunctive relief against
the
Consultant, without the necessity of proving actual damage to the Company.
ARTICLE
6
ASSIGNMENT
AND SUBCONTRACTING
6.1 The
Consultant shall not assign this Agreement in whole or in part. The Consultant
shall not subcontract all or any portion of the services to be performed
under
this Agreement without the prior written consent of the Company, which consent
the Company may withhold in its absolute discretion.
ARTICLE
7
UNDERTAKINGS
BINDING ON EMPLOYEES AND/OR SUBCONTRACTORS
7.1 The
Consultant shall ensure that the Undertakings contained in Schedules “A” and “B”
appended to this Agreement are binding upon and executed by any of its employees
and/or permitted subcontractors performing the services agreed to by the
Consultant under this Agreement.
ARTICLE
8
LIABILITIES
AND INDEMNITIES OF THE CONTRACTOR AND THE COMPANY
8.1 Liability
and Indemnity of the Consultant
| (a) |
The
Consultant shall be liable to the Company for any loss or damage
arising
out of or attributable to the acts or omissions of the Consultant,
its
agents, subcontractors or employees.
|
| (b) |
The
Consultant shall indemnify and hold harmless the Company, its directors,
officers, employees and agents from and against all claims, demands,
losses, costs, damages, suits or proceedings whatsoever (collectively
referred to as “Claims”) that arise out of or are attributable to any act
or omission of the Consultant or its employees, subcontractors
or agents,
and the costs thereof, including, without limitation, all legal
expenses
on a solicitor and client basis, except where such Claims are caused
by
the negligence of the Company.
|
| (c) |
The
Consultant shall be liable for and shall indemnify and save harmless
the
Company and each of its representatives, directors, officers, employees
and agents, with respect to any income taxes payable by the Consultant
as
a result of this Agreement, or for any contributions and penalties
imposed
on the Company by any governmental or other public authority having
jurisdiction, for failure by the Consultant to comply with payment
and
contribution requirements pursuant to the Workers’ Compensation Act,
Canada Pension Plan Act, Unemployment Insurance Act and Income
Tax Act.
|
8.2 Liability
and
Indemnity of the Company
| (a) |
The
Company shall be liable to the Consultant and its employees for
any loss
or damage arising out of or attributable to the acts or omissions
of the
Company, or its employees.
|
| (b) |
The
Company shall indemnify and hold harmless the Consultant and each
of its
directors, officers, and employees, from and against all Claims
that arise
out of or are attributable to any act or omission of the Company
or its
employees or agents, and the cost thereof, including, without limitation,
all legal expenses on a solicitor and client basis, except where
such
Claims are caused by the negligence of the
Consultant.
|
| (c) |
The
Company shall be liable for and shall indemnify and save harmless
the
Consultant, its directors, officers, employees and sub-contractors,
with
respect to any income taxes payable by the Company or for any
contributions and penalties imposed on the Consultant by any governmental
or other public authority having jurisdiction, for failure by the
Company
to comply with payment and contribution requirements pursuant to
the
Workers’ Compensation Board Act, Canada Pension Plan Act, Unemployment
Insurance Act and Income Tax Act.
|
ARTICLE
9
CONFIDENTIALITY
AND COOPERATION
| 9.1 |
Confidentiality
|
The
Consultant shall keep in confidence and shall not disclose or make available
to
third parties or in any other way make use of any materials or information
the
Company provides to the Consultant pursuant to this Agreement, other than
to the
extent necessary to provide its services set out herein. Upon termination
of
this Agreement, the Consultant will return to the Company all materials that
have been provided to the Consultant by the Company.
ARTICLE
10
GENERAL
| 10.1 |
Arbitration
|
All
disputes arising out of or in connection with this contract, or in respect
of
any defined legal relationship associated therewith or derived therefrom,
shall
be referred to and finally resolved by arbitration pursuant to the provisions
of
the Arbitration Act of Alberta.
| 10.2 |
Notices
|
Any
notice, direction, request or other communication required or contemplated
by
any provision of this Agreement shall be given in writing and shall be given
by
delivering or faxing same to the Company or the Consultant, as the case may
be,
as follows:
| (a) |
To
the Consultant at:
|
RWH
Management Services Ltd.
00
Xxxxxxxx Xxxx X.X., Xxxxxxx, Xxxxxxx X0X 0X0
Attention:
Xxx Xxxxxxx
| (b) |
To
the Company at:
|
Elmworth
Energy Corporation
0000,
000-0xx
Xxxxxx
XX, Xxxxxxx, Xxxxxxx, X0X 0X0
Attention:
Xxxx Xxxxxxxxx
Any
such
notice, direction, request or other communication shall be deemed to have
been
given or made on the date on which it was delivered or, in the case of fax,
on
the next business day after receipt of transmission. Either party may change
its
fax number or address for service from time to time by notice in accordance
with
the foregoing.
| 10.3 |
Maintenance
of Records
|
The
Consultant agrees to keep records and books of account with supporting vouchers,
invoices and other documentation showing expenditures made by it in the
performance of the services. The Consultant also agrees to maintain adequate
and
proper time records with respect to time expended in the performance of the
services contemplated by this Agreement. The Company has the right to examine,
at all reasonable times, the records and books of account of the Consultant
to
the extent necessary to verify amounts claimed by the Consultant pursuant
to
this Agreement.
| 10.4 |
Laws
|
This
Agreement is governed by the laws of the Province of Alberta.
| 10.5 |
Waiver
|
No
failure or delay on the part of any party in exercising any power or right
under
this Agreement will operate as a waiver of such power or right, nor will
any
single or partial exercise of any such right or power preclude any further
or
other exercise of such right or power under this Agreement. No modification
or
waiver of any provision of this Agreement and no consent to any departure
by any
party from any provision of this Agreement will be effective unless it is
in
writing. Any such waiver or consent will be effective only in the specific
instance and for the specific purpose for which it was given. No notice to
or
demand on any party in any circumstances will entitle such party to any other
or
further notice or demand in similar or other circumstances.
| 10.6 |
Enurement
|
This
Agreement shall enure to the benefit of and be binding on the parties and
their
respective heirs, executors, administrators, successors and
assigns.
IN
WITNESS WHEREOF
the
parties have executed this Agreement.
| Per authorized signatory | ||
| |
|
|
| /s/ XXX X. XXXXXXX | ||
|
RWH
Management Services Ltd.
|
||
| Per authorized signatory: | ||
| |
|
|
| /s/ XXXX XXXXXXXXX | ||
|
Elmworth
Energy Corporation
|
||
