CONSULTING SERVICES AGREEMENT
THIS AGREEMENT made the
21st day of
September, 2007.
BETWEEN:
0000
Xxxxx Xxxx
Xxxxxxxx,
XX
(the
“Company”)
AND:
ISUMA
STRATEGIES INC.
0000
Xxxxxxx Xxxxx
Xxxxx
Xxxxxxxxx, XX
(the
“Contractor”)
WHEREAS:
A. The
Company is in the business of developing targeted therapeutics for cancer and
chronic viral infections.
B. The
Company and the Contractor desire to enter into a contract for services whereby
the Contractor will provide services to the Company.
C. The
Contractor will become intimately involved with the Company’s business and with
the confidential information of the Company, and by virtue of such involvement
will become personally acquainted with the trade secrets of the
Company. The Company desires to be able to impart said confidential
information and secrets to the Contractor secure in the knowledge that such
information will be used for the sole benefit of the Company and not in
competition with or to the detriment of the Company, directly or indirectly, by
the Contractor.
NOW THEREFORE THIS AGREEMENT
WITNESSES that in consideration of the foregoing recitals and of the
mutual promises, covenants and agreements hereinafter set forth, the Company and
the Contractor hereby promise, covenant and agree as follows:
1. Independent
Contractor
1.1 The
Company engages the Contractor to provide and the Contractor shall provide the
services (the “Services”) described in Schedule A hereto.
1.2 The
Contractor shall at all times be an independent contractor. Neither
the Contractor nor any of the Contractor’s employees are employees or agents of
the Company and no partnership, joint venture or agency will be created by this
Agreement or by any action of the parties under this Agreement and the
Contractor shall not represent itself to be in any such relationship with the
Company.
1.3 The
Contractor acknowledges and agrees that it shall be responsible for payment to
the proper authorities of any and all income taxes, employment insurance
premiums and Canada Pension Plan contributions in respect of the remuneration
paid hereunder. The Company agrees to pay all Workers’ Compensation
insurance premiums in relation to the provision of services by the
Contractor.
1.4 If at any
time the Canada Revenue Agency or any other competent authority determines that
any employee is, in fact, an employee of the Company, then the Company will
immediately begin making all statutorily required withholdings and remittances
in respect of payments to the Contractor.
1.5 The
Company shall not be liable to the Contractor for any damages, liabilities,
penalties, interest or costs caused to the Contractor for failure to make the
statutorily required source deductions or payments that the Company would make
in respect of payment or remuneration to employees. The Contractor
agrees to indemnify and save harmless the Company from any and all damages,
penalties, interest, costs and liabilities of any nature of kind arising as a
result of the Company not making any statutorily required source deductions
pursuant to the Income Tax
Act, the Employment
Insurance Act, and the Canada Pension Plan on
payments to the Contractor.
2. Term
of Contract and Termination
2.1 The
provision of the Services by the Contractor to the Company pursuant to the terms
of this Agreement shall commence on the date of this Agreement and shall
continue until terminated in accordance with paragraphs 2.2, 2.3 or 2.4 of this
Agreement.
2.2 This
Agreement will terminate 10 days following the appointment by the Board of a new
Chief Executive Officer of the Company.
2.3 Either
party may terminate this Agreement prior to the appointment of a new Chief
Executive Officer by providing the other party with 60 days written notice of
termination.
2.4 If the
Company materially fails to comply with any provision of this Agreement then, in
addition to any other remedy or remedies available to the Contractor, the
Contractor may, at its option, immediately terminate this Agreement by giving
written notice of termination to the Company and, if such option is exercised,
the Contractor shall be under no further obligation to provide the
Services.
2.5 This
Agreement may be terminated by the Company forthwith, at the Company’s sole
discretion immediately, upon the happening of any of the following
events:
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(a)
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if
the Contractor or Xxxxxxx shall become insolvent or be adjudged
bankrupt;
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(b)
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if
the Contractor or Xxxxxxx shall die or as a result of sickness, accident
or other disability be unable to substantially perform the Services for a
continuous period of two (2) months or for periods aggregating two (2)
months in any six (6) month period;
or
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(c)
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if
the Contractor or Xxxxxxx shall be in default under any of its covenants
contained in this Agreement and such default shall continue for more than
five (5) days after receipt of a written notice from the Company to cure
same.
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3. Performance
3.1 In
performing the Services hereunder, the Contractor shall: (a) act honestly and in
good faith in what the Contractor has been advised by the Board of Directors and
reasonably believes to be in the best interests of the Company; (b) exercise the
degree of care, diligence and skill that a reasonably prudent person engaged in
the provision of services similar to the Services would exercise in comparable
circumstances; (c) not perform any services for or provide any advice to any
other person, firm, corporation or other entity, which, in the reasonable
opinion of the Company, gives rise to a conflict of interest between the
obligations of the Contractor to the Company under this Agreement and the
obligations of the Contractor to such other person, firm, corporation or other
entity; and (d) ensure that Xxxxxxx devotes such of his time, attention and
skill to the performance of the Services described in Schedule “A” and such
additional services as shall be mutually agreed by the Parties up to
approximately 40% of the Contractor’s work time.
3.2 The
Contractor agrees that it shall provide the Services exclusively through Xxxxxxx
Xxxxxxx (“Xxxxxxx”).
3.3 The
Company agrees that Xxxxxxx shall be entitled to act for or serve other
corporations or entities, including government bodies, boards or committees,
without restriction or the approval of the Company, whether as a director,
officer, agent, employee or otherwise, provided that it does not prevent the
Contractor from fulfilling its obligations hereunder.
4. Remuneration,
Expenses and Other Payment
4.1 The
Company shall pay to the Contractor, in full payment and reimbursement for
providing the Services and for expenses incurred in connection therewith the
amounts in the manner and at the times set out in Schedule “B”, and the
Contractor shall accept the same as full payment and reimbursement.
5. Records
5.1 The
Contractor shall, where its remuneration is determined on the basis of time,
establish and maintain adequate records of the time expended in connection with
provision of the Services, and the Contractor’s invoices shall contain a summary
of time expended and expenses claimed, with all receipts for claimed expenses
attached to the applicable invoices.
6. Confidential
Information
6.1 The
Contractor agrees that all documents, data, records, software and other
property, furnished to Contractor by the Company or produced by the Contractor
or others in connection with the performance of the Services, shall be and
remain the sole property of the Company or the owner. The Contractor
agrees to keep such records and other documentary property of the Company in
confidence and subject to the Company’s control, and shall promptly return them
to the Company as and when requested by the Company. Should the
Company not so request, the Contractor shall return and deliver all such
documentary and other property upon termination of this Agreement and the
Contractor shall not take any such property or any reproduction of such property
upon such termination.
6.2 The
Contractor recognizes that the Company generates and uses valuable proprietary
information and to protect the legitimate interests of the Company, it is
necessary for the Company to prevent unauthorized use or disclosure of the
information.
6.3 The
Contractor acknowledges that, by reason of its arrangement with the Company, it
will have access to Confidential Information, as hereinafter defined, of the
Company, that the Company has spent time, effort and money to develop and
acquire. For the purposes of this Agreement any reference to
“Company” shall mean the Company and its affiliates and
subsidiaries. The term “Confidential Information” as used in this
Agreement means all trade secrets, proprietary information and other data or
information (and any tangible evidence, record or representation thereof)
whether prepared, conceived or developed by an employee or agent of the Company
(including the Contractor) or received by the Company from an outside source
which is maintained in confidence by the Company or the outside source who
provided the information in question. Without limiting the generality
of the foregoing, Confidential Information includes information of the Company
pertaining to:
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(a)
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the
identities of clients and potential clients, customers and potential
customers (collectively, “Customers”); the identities of contact persons
at Customers; the preferences and needs of Customers; customer contact
persons; information regarding sales terms, service plans, methods,
practices, strategies, forecasts, know-how, and other marketing
techniques; the identities of key accounts, potential key accounts; the
identities of suppliers and contractors, and all information about those
supplier and contractor relationships such as contact person(s), pricing
and other terms;
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(b)
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any
information relating to the relationship of the Company with any
personnel, suppliers, principals, investors, contacts or prospects of the
Company and any information relating to the requirements, specifications,
proposals, orders, contracts or transactions of or with any such
persons;
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(c)
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any
marketing material, plan or survey, business plan, opportunity or
strategy, development plan or specification or business
proposal;
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(d)
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financial
information, including the Company’s costs, financing or debt
arrangements, income, profits, salaries or wages;
and
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(e)
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any
information relating to the present or proposed business of the
Company.
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6.4 The
Contractor agrees that the Confidential Information is and will remain the
exclusive property of the Company. The Contractor also agrees that the
Confidential Information constitutes a proprietary right which the Company is
entitled to protect and constitutes information and knowledge not generally
known to the trade.
6.5 In the
course of providing the Services under this Agreement, the Contractor will
obtain access to and be entrusted with Confidential Information. At
all times during this Agreement and after the termination of this
Agreement:
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(a)
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The
Contractor shall maintain securely and hold in strict confidence all
Confidential Information disclosed to
it;
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(b)
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The
Contractor shall not, without the express written consent of the Company,
disclose any of the Confidential Information to any person, corporation or
other entity;
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(c)
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The
Contractor shall not use any of the Confidential Information for any
purpose other than in the normal and proper course of performing the
Services; and
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(d)
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The
Contractor shall not duplicate or transfer or allow any person to
duplicate or transfer any of the Confidential
Information.
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6.6 The
restrictive obligations set forth above shall not apply to the disclosure or use
of any information which:
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(a)
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is
or later becomes available to the public from a source other than the
Contractor and through no fault of the
Contractor;
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(b)
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is
lawfully made available to the Contractor by a third party or a source
outside this Agreement; or
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(c)
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is
required to be disclosed by operation of
law.
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6.7 Without
restricting the generality of the foregoing, the Contractor will execute the
Confidentiality Agreement attached hereto as Schedule “C” and will cause Xxxxxxx
to sign the Confidentiality Agreement annexed hereto as Schedule
“C”.
6.8 If any of
the provisions of this Agreement and the Confidentiality Agreement contained in
Schedule “C” are in conflict the provisions of the Confidentiality Agreement
contained in Schedule “C” shall govern.
7. Reports
7.1 The
Contractor will at regular board meetings and upon the request of the
Company:
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(a)
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fully
inform the Company of the work done and to be done by the Contractor in
connection with the provision of the Services;
and
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(b)
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permit
the Company at all reasonable times to inspect, examine, review and copy
any and all findings, data, specifications, drawings, working papers,
reports, documents and material whether complete or otherwise that have
been produced, received or acquired by, or provided by the Company to the
Contractor as a result of this
Agreement
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7.2 The
Company will, upon the request of the Contractor, provide the Contractor with a
report setting out the calculation of any commissions payable pursuant to this
Agreement and will, upon the reasonable request of the Contractor, permit the
Contractor to inspect the records of the Company that relate to the calculation
of any such commissions.
8. Company
Indemnity
8.1 The
Company agrees to indemnify and hold harmless the Contractor and its principals,
associates, directors, officers, agents, and employees including, without
limitation, Xxxxxxx (the "Indemnified Persons"), to the full extent allowed by
law, from and against any loss, claim, damage, liability and expense, including
legal fees and disbursements on a full-indemnity basis, (the "Loss") incurred by
any or all of them, relating to or arising out of:
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(a)
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any
action taken or omitted to be taken by or on the Company’s behalf pursuant
to this Contract,
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(b)
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any
use of information provided by the Company or any shareholder, director,
officer, employee, Contractor, or professional advisor of the Company,
which information is inaccurate or incomplete in any respect (whether as a
result of misrepresentation, omission, failure to update, or otherwise),
or
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(c)
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any
action taken or omitted to be taken by any Indemnified Person with the
Company’s consent or in conformity with the Company’s act or
omissions
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excluding
only Loss which are determined in the final judgment of a court of competent
jurisdiction to have resulted primarily from the gross negligence or wilful
misconduct of one or more Indemnified Persons.
8.2 The
Company will immediately upon request of any Indemnified Person reimburse that
Indemnified Person for any Losses incurred by that Indemnified Person in
connection with investigating, preparing, or defending any action or claim, in
connection with or arising out of its relationship or Contract with the Company,
whether or not in connection with pending or threatened litigation in which the
Contractor or any other Indemnified Person is a party.
8.3 The
Company will not, without the prior written consent of the Contractor, settle or
compromise or consent to the entry of any judgment in any pending or threatened
claim, action, suit, or proceeding (the "Action"), in respect of which
indemnification may be sought hereunder (whether or not any Indemnified Person
is an actual or potential party to such Action) unless such settlement,
compromise, or consent includes an unconditional release of all Indemnified
Persons from all liability arising out of such Action. The above
indemnity shall be in addition to any rights that any Indemnified Person may
have at common law or otherwise, including but not limited to any right of
contribution.
9. General
9.1 In this
Agreement, unless context otherwise requires, words importing the singular
include the plural and vice versa, and words importing gender include all
genders.
9.2 This
Agreement shall be binding on both parties and on the Contractor’s heirs,
executors, administrators and legal representatives and shall enure to the
benefit of any successors and assigns of the Company or the
Contractor.
9.3 No
consent or waiver, express or implied, by any party to or of any breach or
default by the other party in the performance by the other of its obligations
hereunder shall be deemed or construed to be a consent or waiver to or of any
other breach or default of the same or any other obligation of such
party. Failure on the part of any party to complain of any act or
failure to act of the other of them, or to declare the other party in default
irrespective of how long such failure continues, shall not constitute a waiver
by such party of its rights hereunder or of the right to then or subsequently
declare a default.
9.4 Save and
except for the express provisions of this Agreement and the Confidentiality
Agreement contained in Schedule “C” hereto, any and all previous agreements,
written or oral, between the parties hereto or on their behalf relating to the
provision of the Services by the Contractor to the Company are hereby terminated
and cancelled and each of the parties hereto hereby releases and forever
discharges the other of and from all manner of actions, causes of action, claims
and demands whatsoever under or in respect of any such agreement.
9.5 This
Agreement constitutes the entire agreement between the parties.
9.6 If any
provision of this Agreement is determined to be void or unenforceable, in whole
or in part, it shall not be deemed to affect or impair the enforceability or
validity of any other provision of this Agreement or of any Schedule or any part
thereof, and any such covenant or agreement may be severed from this Agreement
without affecting the remainder of the Agreement.
9.7 The
provisions of this Agreement shall be governed by and interpreted in accordance
with the laws of the Province of Alberta and the laws of Canada as applicable
therein.
9.8 Any
notice relating to this Agreement or required or permitted to be given in
accordance with this Agreement shall be in writing and shall be personally
delivered or mailed by registered mail, postage prepaid to the parties at their
respective addresses set out on the first page of this Agreement.
9.9 The
Contractor shall, upon the reasonable request of the Company, make, do, execute
or cause to be made, done or executed all such further and other lawful acts,
deeds, things, documents and assurances of whatsoever nature and kind for the
better or more perfect or absolute performance of the terms, conditions and
intent of this Agreement.
9.10 The
Contractor understands and agrees that, without prejudice to whatever rights and
other remedies the Company may have, the Company may enforce its rights under
this Agreement by way of injunction, and may obtain an injunction, including an
interim injunction to restrain any breach or anticipated breach of any of the
provisions of this Agreement.
9.11 The
Company and the Contractor acknowledge and declare that in executing this
Agreement they are each relying wholly on their own judgment and knowledge and
have not been influenced to any extent whatsoever by any representations or
statements made by or on behalf of the other party regarding any matters dealt
with herein or incidental hereto.
9.12 The
Company and the Contractor further acknowledge and declare that they each have
carefully considered and understand the terms of this Agreement including, but
without limiting the generality of the foregoing, the restrictions on the
Contractor after termination and that they execute this Agreement voluntarily
and of their own free will.
IN WITNESS WHEREOF this
Agreement has been executed by the parties hereto as of the day and year first
above written.
by its authorized
signatory:
/s/Xxxxx
Bam
ISUMA
STRATEGIES INC.
by its
authorized signatory:
/s/Xxxxxxx
Xxxxxxx
SCHEDULE
“A”
The
following are the Services to be performed:
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A.
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The
Contractor, through Xxxxxxx, shall use best efforts to perform the duties
of Acting Chief Executive Officer and, through Xxxxxxx, to perform work as
reasonably assigned to the Contractor from time to time by the Board of
Directors. The Contractor shall serve as a fully empowered
executive for the purpose of developing and financing functions and assets
of the Company.
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B.
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The
Contractor shall report to the Board of Directors of the
Company.
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C.
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Without
limitation, the Contractor shall be responsible on a best efforts basis
for:
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·
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maintaining
the business initiatives already under
way;
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·
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assisting
in the raising of financing for the
Company;
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·
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commencing
a search for senior executives of the Company, including a permanent Chief
Executive Officer, a Chief Scientific Officer and, potentially, a Chief
Financial Officer;
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·
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the
engagement and/or termination of other employees as
required;
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·
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continuous
assistance in locating additional investors for the
Company;
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·
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development
and implementation as such reporting and monitoring systems as required by
the Board of Directors of the Company and, if required, its external
investors, having regard to the strictures controlling selected disclosure
by reporting issuer;
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·
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general
business management of the Company;
and
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·
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further
strategic developments as the Board
approves.
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X.
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Xxxxxxx
may, separately, be invited to join the Board of Directors of the
Company. Any such election to the Board of Directors is
specifically outside the scope of this Agreement as are any resulting
fees, shares and/or options that Xxxxxxx or the Contractor may earn for
such Board Services.
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SCHEDULE
“B”
REMUNERATION,
EXPENSES AND OTHER PAYMENT
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A.
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The
Company shall pay to the Contractor the fee of $2,000 plus GST per each
complete Working Day the Contractor spends performing the
Services. The Contractor may claim either a half or full day’s
fee for each day worked, depending on whether the Contractor spent more or
less than 4 hours per day performing the
Services.
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B.
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A
day in which the Contractor provides at least 5 hours of Services shall be
a “Working Day”.
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C.
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On
days where the Contractor shall provide less than 5 hours of Services then
the Company shall pay the Contractor an hourly rate of $300 per
hour.
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D.
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The
Company shall also reimburse the Contractor on a monthly basis for
reasonable business expenses incurred by the Contractor in relation to
performance of the Services, including without limitation, automobile,
telephone and travel expenses.
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E.
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Business
related travel on the part of the Contractor shall be included in the
Services chargeable by the
Contractor.
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SCHEDULE
“C”
THIS
AGREEMENT made as at the 21st day of September, 2007.
BETWEEN:
("ViRexx")
OF THE
FIRST PART
- and
–
ISUMA
STRATEGIES INC.
(the
“Contractor”)
OF THE
SECOND PART
- and
-
XXXXXXX
XXXXXXX
(the
"Xxxxxxx")
OF THE
SECOND PART
CONFIDENTIALITY
AGREEMENT
(hereinafter
referred to as the "Agreement")
WHEREAS the Contractor is about to be
engaged as a consultant and to provide the services of Xxxxxxx as Interim Chief
Executive Officer to ViRexx pursuant to a Consulting Agreement (“Consulting
Agreement”) dated concurrently herewith, in a position of confidence and trust
and under conditions where it and Xxxxxxx have or may have access to technical,
confidential and secret information regarding existing or contemplated business
of ViRexx;
AND WHEREAS the Contractor and Xxxxxxx
recognize that, as a part of the Contractor’s duties, certain ideas and
suggestions of interest to ViRexx, conceived or made by the Contractor and
Xxxxxxx, while they are retained by ViRexx, shall be immediately made available
to and become the property of ViRexx without any further consideration than is
provided in the Consulting Agreement;
AND WHEREAS ViRexx desires to receive
from the Contractor and Xxxxxxx specific covenants relating to the
non-disclosure of confidential information and ownership of Intellectual
Property, and the Consulting Agreement is conditional on ViRexx receiving these
covenants.
IN CONSIDERATION of the premises set
forth and the remuneration paid by ViRexx to the Contractor, the parties agree
as follows:
1. Definition of Confidential
Information
1.1 For
purposes of this Agreement, the term "Confidential Information", shall mean all
information, whether or not reduced to writing and whether or not patentable or
protected by copyright, which the Contractor and Xxxxxxx receives, received
access to, conceived or developed, in whole or in part, directly or indirectly,
in connection with the Contractor’s and Xxxxxxx’x relationship with ViRexx, and
includes the information mentioned in Section 6.3 of the Consulting Agreement
and also includes, but is not limited to the following:
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(i)
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information
concerning bioinformatics, medinformatics and cheminformatics software,
databases and services, including but not limited to, source codes, object
codes, flowcharts and programs and other materials whatsoever (tangible or
intangible and machine readable or human
readable);
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(ii)
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information
concerning products and services provided to the global community to
bridge the gap between biology in vitro (in the test
tube) and biology in
silico (in the computer);
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(iii)
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information
concerning the handling and analysis of DNA and protein xxxxxxxx
xxxx;
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(iv)
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information
concerning drug development and development processes, including but not
limited to, designing optimal drug molecules for treating
diseases;
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(v)
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information
concerning pre-clinical, analytical and formulation
services;
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(vi)
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technology
developed for high throughput screening of new chemical entities or drug
levels;
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(vii)
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discoveries
relating to, and developments of, patented in-house
formulations;
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(viii)
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information
concerning research, development and commercialization of vaccines and
antibodies for preventative or therapeutic
use;
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(ix)
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formulations,
including but not limited to, the development of new formulations for
existing drugs, assessments of current formulations and the development of
strategies for formulations of new drug chemical entities
(NCE);
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(x)
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information,
drugs, delivery systems, devices or models under a patent, or potential or
pending patent, whether or not such a patent is in fact obtained or
expires;
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(xi)
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test
results, clinical studies, clinical trial results, and all research
whatsoever;
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(xii)
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products
and devices developed, patents, discoveries, concepts, compilations and
ideas of any nature whatsoever including, without limitation, the nature
and results of research and development activities, the software,
molecular and analytical tools to facilitate research in the fields of
biology, medicine and pharmaceutical science, and processes, formulas,
inventions, technology, techniques, computer programs and models, designs,
drawings, and specifications (“Intellectual
Property”);
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(xiii)
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production
processes, marketing techniques and arrangements, marketing materials,
promotions, demos and publications, mailing lists, purchasing information,
pricing policies, quoting procedures, financial information, customer and
prospect names and requirements, employee, customer, supplier and
distributor data and other materials or information relating to ViRexx's
business and activities and the manner in which ViRexx does business,
including but not limited to the names of drug firms, biotechnology firms,
contact research organizations (CRO), generic drug manufacturers,
pharmaceutical companies, pre-clinical clients, principal investigators
and alliances with whom ViRexx has or may have a business relationship
with,
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(xiv)
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any
other materials or information related to, or that is or may be used in,
the business, trade or activities of ViRexx
which:
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(a)
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are
not generally known to others engaged in similar business or
activities;
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(b)
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has
an economic value from not being generally known;
and
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(c)
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is
the subject of efforts that are reasonable in the circumstances to
maintain its secrecy; and
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(xiiv)
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any
financial information or information relating to the day to day business
of ViRexx.
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1.2 Failure
to xxxx any of the Confidential Information as confidential, proprietary or
protected shall not affect its status as part of the Confidential Information
under the terms of this Agreement.
1.3 For
purposes of this Agreement, the term "Confidential Information" shall not
include information which:
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(i)
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has
been publicly available prior to coming into the possession of
ViRexx;
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(ii)
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becomes
publicly available without a breach by the Contractor and Xxxxxxx
of: i) this Agreement; ii) any other agreement between the
Contractor and/or Xxxxxxx and ViRexx; or iii) any lawful duty owed by the
Contractor and/or Xxxxxxx to
ViRexx;
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(iii)
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has
been supplied to the Contractor and/or Xxxxxxx by a third party who is
under no obligation to ViRexx.
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The
information described in paragraphs 1.3(i) and (iv) above is hereinafter called
the "Contractor Information".
2. Treatment of
Information
2.1 The
Contractor and Xxxxxxx acknowledge that in their position, or in any other
position the Contractor and Xxxxxxx may hold, in and as a result of the
Contractor's and Xxxxxxx’x relationship with ViRexx, the Contractor and Xxxxxxx
shall, or may be making use of, acquiring or adding to Confidential Information
about certain matters and things which are confidential to ViRexx and which
information is the exclusive property of ViRexx.
2.2 As
a material inducement for ViRexx to retain the services of the Contractor, the
Contractor and Xxxxxxx agree that during its term as a consultant with ViRexx
for the time Xxxxxxx is Interim Chief Executive Officer for ViRexx, and for a
term of five (5) years following the date of expiry or termination of the
Consulting Agreement or expiry or termination of any extension or renewal
thereof, the Contractor and Xxxxxxx shall not, except with the prior written
consent of ViRexx, which consent may be arbitrarily withheld, or except if the
Contractor or Xxxxxxx is acting in the course of their duties on behalf and for
the benefit of ViRexx in connection with ViRexx's business practices and
policies, directly or indirectly, disclose, divulge, reveal, report, publish,
transfer or use for any purpose, or cause to be disclosed, divulged, revealed,
reported, published, transferred or used for any purpose, the Confidential
Information which has been or will be obtained, created, learned or disclosed
by, or to, the Contractor and/or Xxxxxxx.
2.3 Disclosure
of any Confidential Information of ViRexx by the Contractor and/or Xxxxxxx shall
not be prohibited if the disclosure is directly pursuant to a valid and existing
order of a governing court or other governmental body or agency within Canada;
provided, however that:
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(i)
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the
Contractor and Xxxxxxx shall first provide immediate written notice to
ViRexx of any possible or prospective order, or proceeding pursuant to
which any order may result; and
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(ii)
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ViRexx
shall have been afforded a reasonable opportunity to prevent or limit any
disclosure.
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3. Ownership of ViRexx Intellectual
Property and Confidential Information
3.1 The
Contractor and Xxxxxxx agree that all right, title and interest in any
Confidential Information and any Intellectual Property pertaining to the
business of ViRexx shall be and shall remain the exclusive property of
ViRexx.
3.2 The
Contractor and Xxxxxxx agree immediately to disclose in writing to ViRexx all
Confidential Information and any Intellectual Property pertaining to the
business of ViRexx developed in whole or in part by the Contractor and/or
Xxxxxxx during the term of the Contractor's relationship with ViRexx and does
hereby assign to ViRexx, any right, title or interest the Contractor and/or
Xxxxxxx may have in the Confidential Information. The Contractor
and/or Xxxxxxx agrees to execute any instruments and to do all other things
reasonably requested by ViRexx, in order to vest more fully in ViRexx, all
ownership rights in those items transferred by the Contractor and Xxxxxxx to
ViRexx.
3.3 All
notes, data, tapes, reference items, sketches, drawings, memoranda, computer
information, memory, and all disks, records, inventions, technology and all
intellectual property and other materials in any way relating to any of the
Confidential Information or to the business of ViRexx shall belong exclusively
to ViRexx and the Contractor and Xxxxxxx do hereby transfer any interest they
may have in it and agrees to turn it over to ViRexx including but not limited to
all originals and all copies of the materials in, or that at any time whatsoever
were in, the Contractor's and/or Xxxxxxx’x possession, power or control, at the
request of ViRexx, or in the absence of a request, on the termination of the
Contractor's relationship with ViRexx, howsoever the Contractor's termination
occurs, including but not limited to, the Contractor's retirement or
death.
4. Injunctive Relief
4.1 The
Contractor and Xxxxxxx understand and agree that ViRexx shall suffer irreparable
harm in the event that the Contractor and/or Xxxxxxx breaches any of the
Contractor's or Xxxxxxx’x obligations under this Agreement and that monetary
damages shall be inadequate to compensate ViRexx for the
breach. Accordingly the Contractor and Xxxxxxx agree that, in the
event of a breach or threatened or potential breach by the Contractor and/or
Xxxxxxx of any of the provisions of this Agreement, ViRexx, in addition to and
not in limitation of any other rights, remedies or damages available to ViRexx
at law or in equity, shall be entitled to an interim injunction, interlocutory
injunction, and permanent injunction, in order to prevent or to restrain any
such breach by the Contractor, or by any or all of the Contractor's partners,
co-venturers, ViRexx's servants, agents, representatives and any and all persons
directly or indirectly acting for, on behalf of, or with the
Contractor.
5. Accounting for Profits and
Indemnification
5.1 The
Contractor and Xxxxxxx agree that if the Contractor and/or Xxxxxxx shall violate
any of the Contractor's covenants under this Agreement, ViRexx shall be entitled
to an accounting and repayment of all profits, compensation, royalties,
commissions, remunerations or benefits which the Contractor and/or Xxxxxxx
directly or indirectly shall have realized or may realize relating to, growing
out of, or in connection with any violations of this Agreement. This
remedy shall be in addition to and not in limitation of any injunctive relief at
law or in equity or otherwise under this Agreement.
5.2 The
Contractor and Xxxxxxx agree to defend, hold harmless and indemnify ViRexx
against and in respect of:
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(i)
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any
and all losses and damages resulting from, relating or incident to, or
arising out of any misrepresentation or breach by the Contractor and/or
Xxxxxxx of any warranty or covenant made or contained in this
Agreement;
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(ii)
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any
and all actions, suits, proceedings, claims demands, judgments, costs, and
expenses (including all legal fees, on a solicitor and his own client
basis), incident to the foregoing.
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6. Severability
6.1 In
the event that any provision or part of any provision of this Agreement shall be
deemed to be void or invalid by a court of competent jurisdiction, the remaining
provisions or parts shall be and remain in full force and effect. The
Contractor and Xxxxxxx agree that the breach or alleged breach by ViRexx
of:
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(i)
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any
covenant contained in another agreement (if any) between ViRexx and the
Contractor and Xxxxxxx or;
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(ii)
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any
obligation owed to the Contractor and Xxxxxxx by
ViRexx;
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shall not
affect the validity or enforceability of the covenants and agreements of the
Contractor and Xxxxxxx set forth in this Agreement.
7. No Prior
Agreements
7.1 The
Contractor and Xxxxxxx represents to the best of the Contractor's and Xxxxxxx’x
knowledge that the Contractor's and Xxxxxxx’x performance of all the terms of
this Agreement do not and shall not breach any fiduciary or other duty or any
covenant, agreement or understanding (including any agreement relating to any
proprietary information, knowledge or data acquired by the Contractor and
Xxxxxxx in confidence, trust or otherwise prior to the Contractor's and
Xxxxxxx’x engagement by ViRexx) to which the Contractor and Xxxxxxx are a party
or by the terms of which the Contractor and Xxxxxxx may be bound. The Contractor
and Xxxxxxx covenant and agree that the Contractor and Xxxxxxx shall not
disclose to ViRexx, or induce ViRexx to use any proprietary information,
knowledge or data belonging to any previous employer or others. The
Contractor and Xxxxxxx further covenant and agree not to enter into any
agreement or understanding, either written or oral, in conflict with the
provisions of this Agreement.
8. Contractor's
Status
8.1 Nothing
in this Agreement shall be construed as constituting a commitment, guarantee,
agreement or understanding of any kind or nature that ViRexx shall continue to
retain the Contractor. No change of the Contractor’s duties as a
consultant of ViRexx shall result in, or be deemed to be, a modification of the
terms of this Agreement.
9. Successors
9.1 This
Agreement shall be binding on and shall enure to the benefit of ViRexx and the
Contractor, and their respective heirs, personal and legal representatives,
successors and assigns. As used in this Agreement, the term "ViRexx"
shall also include any corporation or entity which is a parent, subsidiary, or
affiliate of ViRexx. The Contractor consents to the enforcement of
any and all provisions of this Agreement by or for the benefit of ViRexx as to
any other corporation or entity regarding any of the Confidential
Information.
10. Governing Law
10.1 This
Agreement shall at all times and in all respects be governed by the laws of the
Province of Alberta and all parties hereto shall irrevocably attorn to the
courts of competent jurisdiction of the Province of Alberta.
11. Legal Advice
11.1 The
Contractor and Xxxxxxx hereby acknowledge, represent and warrant to ViRexx that
they have had time to review, and have reviewed, this Agreement and that they
have been encouraged by ViRexx to seek independent legal advice prior to the
execution and delivery of this Agreement, and in the event that they did not
avail themselves of that opportunity, they did so voluntarily, without any undue
pressure, and agrees that their failure to obtain independent legal advice shall
not be used by them as a defense to the enforcement of their obligations under
this Agreement.
12. Notices
12.1 Any
notice required or permitted to be given to the Contractor and Xxxxxxx shall be
sufficiently given if delivered to the Contractor and Xxxxxxx personally or if
mailed by registered mail to the Contractor's and Xxxxxxx’x address last known
to ViRexx.
12.2 Any
notice required or permitted to be given to ViRexx shall be sufficiently given
if delivered personally or faxed or if mailed by registered mail
to:
0000 Xxxxx Xxxx
Xxxxxxxx, XX X0X
0X0
Fax: (000) 000-0000
or at
such other address as ViRexx may advise the Contractor and Xxxxxxx in
writing.
12.3 Any
notice given by mail shall be deemed to have been given forty eight (48) hours
after the time it is posted. Any notice given by personal delivery or
fax shall be deemed to have been given on the day of personal delivery or
faxing.
12.4 Either
one of the parties may advise the other, in the manner aforesaid, of any change
of address for the giving of notices.
13. Entire Agreement
13.1
It is acknowledged that the parties are parties to the Consulting Agreement
which this agreement is attached as Schedule "A". This Agreement, the
Consulting Agreement all signed concurrently herewith, along with any future
agreement respecting options or warrants contain the entire agreements and
understandings by and between ViRexx and the Contractor and Xxxxxxx with respect
to the subject matter, and no representations, promises, agreements or
understandings, written or oral, express or implied shall be valid or binding
unless the same is in writing and signed by the party intended to be
bound. No waiver of any provision of this Agreement shall be valid
unless it is in writing and signed by the party against whom the waiver is
sought to be enforced; moreover, no valid waiver of any provision of this
Agreement shall be deemed a waiver of any other provision of this Agreement at
the time or shall be deemed a valid waiver of the provision at any other
time.
14. Assignment
14.1 This
Agreement is assignable by ViRexx without the prior consent of the Contractor or
Xxxxxxx.
14.2 As
this Agreement is personal in nature with respect to the Contractor and Xxxxxxx,
it is not assignable by the Contractor or Xxxxxxx under any
circumstance.
15. Gender
15.1 Whenever
the singular is used, it shall be deemed to extend to and include the
plural. Where one gender is used, it shall include all
genders.
16. Headings
16.1 The
headings and other captions in this Agreement are for convenience and reference
only and are not to be construed in any way as additions or limitations of the
covenants and agreements contained in this Agreement.
17. Effective Date
17.1 This
Agreement is effective as of the date and year first above mentioned and
indicated herein.
IN WITNESS WHEREOF, ViRexx and the
Contractor and Xxxxxxx have duly executed this Agreement, where applicable by
their respective corporate officers hereunto duly authorized.
Per:____/s/Xxxxx
Bam_________________________
ISUMA STRATEGIES INC.
Per:_____/s/
Xxxxxxx Elliott_____________________
SIGNED,
SEALED AND
DELIVERED
in the
presence
of: )
)
)
_____/s/Xxxxx
Bam_____________________ ____/s/Xxxxxxx
Elliott___________________
Witness
XXXXXXX XXXXXXX
