EXHIBIT 10.4
SERVICES AGREEMENT
THIS SERVICES AGREEMENT, made as of the 15th day of October, 2004, by
and among RS GROUP OF COMPANIES, INC., a corporation incorporated under the laws
of the State of Florida (hereinafter as "RSGC"), INITIATIVES CANADA CORPORATION,
a company formed under the laws of the Province of Ontario (hereinafter as
"ICC") and CANADIAN LITERACY INITIATIVES, a company formed under the laws of the
Province of Ontario (hereinafter as "CLI")
RECITALS
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A. RSGC and ICC wish to enter into this Agreement for the purposes of ICC
and CLI engaging the services of RSGC in providing administrative
service required by ICC and CLI in support of ICC and CLI's Fair Market
Value Program (the "Program").
B. RSGC has agreed to assist with said administrative needs of ICC and CLI
for the term of this Agreement.
IN CONSIDERATION OF THE MUTUAL COVENANTS AND OTHER GOOD AND VALUABLE
CONSIDERATION, THE PARTIES AGREE AS FOLLOWS:
SERVICES
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1. Duties and Responsibilities of RSGC. RSGC shall provide to ICC any
assistance that is reasonable requested by ICC for the purpose of the
Program:
Administrative services including but not limited to
processing donor applications, issuing warranty protection
certificates to approved donors, and processing donor payment
instructions.
2. Duties and responsibilities of ICC and CLI.. ICC and CLI shall provide
RSGC all detailed donor applicant files and other Program related
information in order that RSGC can fully understand the administrative
requirements to support ICC and CLI.
TERM
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3. The term of this Agreement shall, unless earlier terminated pursuant to
Section 4 below, be for a period of five (5) years from the date of
this Agreement (the "Term").
4. Early Termination of the Term. ICC and CLI may terminate the Term upon
ninety (90) days written notice given to RSGC at any time prior to the
expiry date of this Agreement, accompanied by payment, by bank draft or
cashier's cheque payable to RSGC, of all amounts due and owing to RSGC
under this Agreement at the date of such payment ("Payment Amount").
RSGC may terminate the Term upon thirty (30) days written notice given
to ICC and CLI at any time for any reason prior to the expiry date of
this Agreement.
5. "Year" means the twelve (12) month period ending on the first or any
subsequent anniversary of the date of this Agreement.
6. Return of Confidential Information. Upon the expiration of the Term
pursuant to Section 4 hereof or the termination or cancellation of the
Term pursuant to Section 4 hereof and the Payment Amount is paid full
within the requisite time period, then Receiving Party shall return to
the Disclosing Party all files, compact disks and other similar media
in its possession containing Confidential Information.
7. Fees. As compensation for the services provided by RSGC under this
Agreement, ICC and CLI shall compensate RSGC:
An administrative service fee in the amount of One dollar (CAD
$1.00) due and payable to RSGC immediately
REPRESENTATIONS, WARRANTIES AND COVENANTS
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8. Representations, Warranties and Covenants of ICC:
(a) ICC and CLI are valid and subsisting corporations under the
laws of the jurisdiction where it was formed, has full and
power and authority to enter into this Agreement and to
perform each of its obligations hereunder and this Agreement
is enforceable against ICC in accordance with its terms;
(b) ICC and CLI are, and shall be, in full compliance with all
federal, state and provincial laws and regulations in every
jurisdiction applicable to its business and operations and the
performance of its obligations under this Agreement; and;
(c) ICC and CLI have not and shall not enter into any agreement,
commitment or understanding whether written or oral, which
conflicts or is inconsistent with the terms of this Agreement
or which would adversely affect its ability to perform the
obligations required to be performed by it under this
Agreement.
9. Representations, Warranties and Covenants of RSGC
(a) RSGC is a valid and subsisting corporation under the laws of
the jurisdiction where it was formed, has full and power and
authority to enter into this Agreement and to perform its
obligations hereunder and this Agreement is enforceable
against RSGC in accordance with its terms;
(b) RSGC is, and shall be, in full compliance with all federal and
state laws and regulations in every jurisdiction applicable to
its business and operations and the performance of its
obligations under this Agreement, including laws and
regulations relating to privacy matters; and
(c) RSGC has not and shall not enter into any agreement,
commitment or understanding, whether written or oral, which
conflicts or is inconsistent with the terms of this Agreement
or which would adversely affect its ability to perform the
obligations required to be performed by it under this
Agreement.
CONFIDENTIALITY
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10. Confidential Information. "Confidential Information" shall mean
information provided by either party ("Disclosing Party") to the other
party ("Receiving Party"), which is considered by the Disclosing Party
to be proprietary. During the course of this Agreement, the Receiving
Party agrees that information furnished to it, including all
intellectual property, financial, trade, systems, services, techniques
and processes, operational and other information (including market
analysis and projections) concerning the Disclosing Party and its
subsidiaries, its and their personnel, assets and operations, all
documentation and any copies thereof relating to any of such
information, whether in oral, written, graphic, electronic or other
tangible form, shall be considered, for purposes of this Agreement,
"Confidential Information".
11. Confidentiality Obligation. The Receiving Party and its respective
affiliates, shareholders, members, directors, officers, employees, and
agents agrees to hold the Confidential Information in the strictest
confidence, both during and after the termination of this Agreement. To
this end, the Receiving Party shall be bound by the terms and
conditions of any pre-existing or contemporaneously executed
Non-disclosure Agreement, and shall:
(a) only use the Confidential Information to carry out its duties
and responsibilities hereunder and not use, disclose or reveal
the Confidential Information, to employees of the foregoing
entities, agents and independent contractors who have a "need
to know" for purposes of this Agreement;
(b) not make, or permit or cause to be made copies of the
Confidential Information, except as necessary to carry out its
duties and responsibilities as described by this Agreement;
and
(c) take all reasonable precautions to prevent the inadvertent
disclosure of the Confidential Information to any unauthorized
person (other than as provided for in paragraph (a) above).
INDEMNIFICATION
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12. Indemnification by ICC and CLI. ICC and CLI hereby indemnifies and
holds harmless RSGC and its respective affiliates, subsidiaries,
shareholders, directors, members, managers, officers, employees and
agents from and against any and all losses, liabilities, claims, causes
of action, suits, expenses (including but not limited to legal fees and
expenses), costs (including costs of investigation), interest, fines
and penalties incurred by RSGC as a result or by virtue of any breach
of any representation, warranty or covenant made by ICC and CLI herein.
13. Indemnification by RSGC. RSGC hereby indemnifies and holds harmless ICC
and CLI and its respective affiliates, subsidiaries, shareholders,
directors, managers, officers and employees from and against any and
all losses, liabilities, claims, causes of action, suits, expenses
(including by not limited to attorney's fees and expenses), costs
(including costs of investigation), interest, fines and penalties
incurred by ICC and CLI as a result or by virtue of any breach or
default of any representation, warranty or covenant made by RSGC
herein.
14. Opportunity to Cure. In order to be entitled to indemnification
thereunder, each party seeking ------------------- indemnification (the
"Indemnity") shall be required to notify the party in writing from who
it is seeking indemnification (the "Indemnifying Party") notice of the
occurrence of the breach or default of any representation, warranty or
covenant made herein and such breach or default has been continuing for
at least thirty (30) days, specifying the term or terms of this
Agreement under which such breach or default has been continuing for at
least thirty (30) days, specifying the term or terms of this Agreement
under which such breach or default has occurred, the circumstances
giving rise to such breach or default, and the opportunity to cure such
breach or default within thirty (30) days of the delivery of such
notice (the "Cure Period"). During the Cure Period, the Indemnifying
Party shall have right to discuss the alleged breach or default with
the Indemnity, provided that any such discussion shall not relieve the
Indemnifying Party of the duty to cure the breach or default.
GENERAL
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15. Notices and other communication s shall be addressed or directed to the
physical and electronic addresses set forth under the signature lines
of each of the parties hereto. Facsimile signatures shall have the same
force and effect as physical signatures. This Agreement, the Exhibits
attached hereto and the subject matter hereof and thereof reflect the
entire agreement between the parties hereto and supersede any and all
prior understandings, agreements and commitments, whether written or
oral, between any or all of them. The waiver of one breach or default
or any delay in exercising rights shall not constitute a waiver of any
subsequent breach or default. This Agreement may be executed in
counterparts, each of which shall be deemed an original and all of
which when taken together shall constitute one and the same instrument.
This Agreement shall be binding on and inure to the benefit of each of
the parties hereto, their respective successors and permitted assigns
(subject to Section 18 hereof) and their respective affiliates,
shareholders, members, managers, directors, officers and employees.
This Agreement may only be amended in writing by an instrument executed
by all of the parties hereto. Headings are for convenience only and
shall not be construed in the interpretation or meaning of any
provision hereof. This Agreement may be executed in counterparts, all
of which when taken together shall constitute one and the same
instrument.
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16. Governing Law. This Agreement shall be governed by the laws of the
Province of Ontario, without giving effect to principles of conflicts
of laws.
17. Assignment. No party hereto shall be entitled to assign any of its
rights and obligations hereunder, without the prior written consent of
the other party.
18. Confidentiality of this Agreement. This Agreement and the subject
matter hereof shall be held in the strictest confidence by each of the
parties hereto. Disclosure of this Agreement or the subject matter
hereof shall be made upon the mutual written consent of all of the
parties hereto; provided, however, that (i) this Agreement and a
summary description of its contents (in any case, with dollar amounts
and percentages omitted) may be disclosed in a press release issued by,
or public filing made by, RSGC without the aforesaid consent
requirement and (ii) this Agreement and the subject matter hereof may
be disclosed by RSGC in the performance of its duties under Section 2.
Notwithstanding the foregoing, in the event that RSGC, in consultation
with securities counsel, determines that this Agreement is required by
applicable laws and regulations to be filed as an exhibit to a public
filing required to be made by it, RSGC shall apply for confidential
treatment of all dollar amounts and percentages and other information
considered confidential in accordance with rule 406 of the Securities
Act of 1933 and Rule 24b-2 of the Securities Exchange Act of 1934 and
other applicable rules and regulations. RSGC shall consult with ICC and
CLI prior to filing any applications for confidential treatment
relating to this Agreement or the subject matter hereof.
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement and affirmed their consent hereto as of the day and
year first above written.
RS GROUP OF COMPANIES, INC.:
By: ________________________________
Name: Xxxxxx Xxxxx
Title: General Counsel
INITIATIVES CANADA CORPORATION:
By: _________________________________
Name: Xxxxxxx Xxxxxxxxxxxxxxx
Title: President
CANADIAN LITERACY INITIATIVES:
By: _________________________________
Name: Xxxxxxx Xxxxxxxxxxxxxxx
Title: President
