CONSULTING AGREEMENT September 14, 2006
Exhibit
10.22
September
14, 2006
THIS
AGREEMENT with effect the
1st
day of September, 2006 between 852907
Ontario Limited,
a
corporation incorporated under the laws of the province of Ontario (the
“Consultant”)
and
Trimax
Corporation,
a
corporation incorporated under the laws of the State of Nevada, United States
of
America (“Trimax”).
WHEREAS
Trimax
is
in the business of developing,
selling, delivering, installing, licensing and otherwise enabling solutions
relating to the communication, collection, storage, analysis and distribution
of
data relating to (BPL)
BROADBAND OVER POWER LINES, and BPL enabled services (ISP, VoIP, IPTV, AMR,
SCADA) and the
provision of services in relation thereto
(the
“Business”),
AND
WHEREAS the
Consultant has expertise in and the qualifications and experience to develop
and
manage corporate infrastructures’ including administration, sales and business
development;
AND
WHEREAS
Trimax
wishes to engage the Consultant, from time to time, on the terms and conditions
as set out in this Agreement to provide certain services relating to the
management and organization of such events.
NOW
THEREFORE,
in
consideration of the premises and the covenants and agreements contained
in this
Agreement, the Consultant and Trimax agree as follows:
1.
|
Definitions
|
In
this
Agreement, terms capitalized in the introduction and recitals to this Agreement
have the meanings ascribed to them and the following terms have the following
meanings:
“Agreement”
means
this agreement, including all schedules attached and all written amendments
to
this agreement.
“Business
Day”
means a
day other than a Saturday, Sunday or statutory holiday in the Province of
Ontario.
“Confidential
Information”
means
confidential and proprietary information, material and otherwise relating
to the
Business, whether or not designated or labelled as confidential or proprietary,
in written, graphic, verbal or machine readable form, including without
limitation, the Developments, trade secrets, lists of present and prospective
Customers and their buying habits, agreements with suppliers, strategic partners
and distributors and information about dealings with suppliers and distributors,
purchase requirements, pricing and sales policies and concepts, financial
information, business plans, forecasts and marketing strategies, and plans,
processes, surveys, technology, methods, sales reports.
“Consulting
Services” means
all
appropriate acts necessary or advisable to promote the Business in accordance
with the Consultant’s duties identified in Schedule ‘A’ to this
Agreement.
“Customer”
means
any individual, corporation or entity who has been a customer of Trimax at
any
time during the one year period immediately prior to termination of this
Agreement or any person, corporation or entity to whom the Consultant, Trimax
or
its servants, consultants or agents had approached with the intent to sell
any
of the services and or products sold through the Business at any time during
the
one year period immediately prior to the termination of this
Agreement.
“Developments”
includes, without limitation, works of authorship, copyright works, trademarks,
trade names, patents, patent applications, know-how, inventions, discoveries,
developments, ideas, plans, methodologies, designs, research data, trade
secrets, improvements, source code, binaries, user documentation, web pages,
domains, license keys and Confidential Information.
1
“Materials”
means
all material delivered, assembled or created by the Consultant pursuant to
this
Agreement or furnished to him by Trimax and includes all equipment, tools,
keys,
books, records, reports, files, manuals, notes, data, tapes, reference items,
memoranda and other materials in any way relating to the Business or to any
of
the Confidential Information.
“Term”
means
the period commencing from the date first mentioned above until terminated
on
the date which is the earlier of two weeks following the date on which either
the Consultant or Trimax gives the other notice expressing the intention
to
terminate this Agreement and November 30, 2006.
Extended
Meanings unless
the context otherwise requires, words importing the singular include the
plural
and vice versa, words importing the masculine gender include the feminine
and
neuter genders, the word ‘person’
includes
corporations, trusts and unincorporated associations, and unless specifically
provided otherwise, reference to a party or parties is to a party or parties
to
this Agreement and any notice, request or other communication required or
permitted by this Agreement to be given to a party shall be in writing and
all
references to “day”
or
“days”
shall
mean calendar days unless designated as Business Days.
2.
|
Entire
Agreement
|
This
Agreement is the entire agreement between Trimax and the Consultant about
its
subject matter and supersedes all prior agreements, understandings, negotiations
and discussions, whether oral or written about its subject matter. There
are no
warranties or representations between the parties about the subject matter
of
this Agreement except as specifically provided in this Agreement.
3.
|
Calculation
of Time
|
When
calculating the period of time within which or following which any act is
to be
done or step taken pursuant to this Agreement, the date which is the reference
date in calculating such period shall be excluded. If the last day of such
period is not a Business Day, the period in question shall end on the next
Business Day.
4.
|
Engagement
|
Trimax
hereby engages the Consultant to provide the Consulting Services during the
Term
and the Consultant hereby accepts such engagement and agrees, during the
Term,
unless otherwise provided in this Agreement, to devote all of his working
time
and attention to provide the Consulting Services. The Consultant agrees to
diligently promote the interests of Trimax.
5.
|
Status
of the Consultant
|
The
Consultant shall for all purposes be an independent contractor and not an
agent,
partner or employee of Trimax. If Canada Revenue Agency determines the
relationship governed by this Agreement is an employment relationship and
not a
consulting relationship, then the Consultant shall indemnify Trimax from
any and
all claims, losses and expenses whatsoever arising from or in connection
with
such determination. As the Consultant has only recently been retained and
can
only advise Trimax on the matters for which he is being engaged, Trimax agrees
that the Consultant is not liable for its past decisions and actions and
agrees
to fully indemnify the Consultant against any complaints or actions brought
against Trimax and Trimax agrees that the Consultant shall not be held liable
for any advice it provides to Trimax.
6.
|
Remuneration
|
As
remuneration for the Consulting Services the Consultant shall be entitled
to the
consulting fee as well as the shares in the capital of Trimax as set out
in
Schedule ‘B’ to this Agreement.
7.
|
Confidentiality
and Xxxxxxx Xxxxxxx
|
The
Consultant acknowledges and agrees in the course of his association and
relationship with Trimax he will have access to, acquire, deliver or create
Confidential Information and he acknowledges and agrees that any disclosure
of
Confidential Information to the competitors, suppliers, consultants of Trimax,
or to its Customers or the general public would be highly detrimental to
the
interests of Trimax. The Consultant agrees he will hold in strict confidence
and
not disclose or use, for his own or any other purpose, any Confidential
Information except in connection with the proper discharge of the Consulting
Services, including without limitation.
The
Consultant further agrees to comply with xxxxxxx xxxxxxx restrictions of
the
Ontario Securities Commission, the Securities and Exchange Commission, and
any
other applicable regulator including any stock exchange on which Trimax’s
securities are listed. Specifically, without limiting the generality of the
foregoing, the Consultant shall not trade or advise others in trading in
the
securities of Trimax while in possession of undisclosed material information
regarding the business or affairs of Trimax or its subsidiaries, or disseminate
such undisclosed material information to others in connection with trading
in
the securities of Trimax or for any other purpose.
2
8.
|
Ownership
of Materials
|
The
Consultant acknowledges and agrees the Materials belong exclusively to Trimax
and agrees to deliver the Materials, plus any copies, extracts and summaries
thereof, promptly to Trimax upon the termination of this Agreement for any
reason whatsoever, or upon request by Trimax.
9.
|
Assignment
of Developments
|
The
Consultant hereby irrevocably assigns and transfers, and agrees to assign
and
transfer exclusively to Trimax, any and all of his right, title and interest
in
and to, any and all Developments, the goodwill related to all trademarks,
all
patents, all applications for patents and any other intellectual property
in any
Development he has solely or jointly authored, created, conceived, developed
or
reduced to practice in the course of carrying out the Consulting Services.
The
Consultant agrees not to apply for any intellectual property rights for any
Developments and agrees not to oppose, contest or seek to invalidate any
registration of such rights by Trimax.
10.
|
Waiver
of Moral Rights
|
The
Consultant waives in whole any moral right, or similar right, which he may
have
in any of the Developments to the extent that they cannot be assigned to
Trimax.
The Consultant agrees to do whatever is necessary to enable Trimax to apply
for
and secure copyright or patent protection for the Developments in Canada
and
elsewhere.
11.
|
Obligation
to Disclose
|
The
Consultant agrees to make full disclosure to Trimax of all Developments and,
without remuneration, to do all things that may be necessary to make Trimax
the
owner of any such Developments.
12.
|
Non-Competition
|
The
Consultant agrees that for a period of 2 months from the termination of this
Agreement for any reason whatsoever he will not, without the prior written
consent of Trimax any where in the world in respect of Broadband over Power
Line
Carriers, directly or indirectly; either individually or in partnership or
jointly or in conjunction with any other person (as principal, beneficiary,
director, officer, shareholder, partner, nominee, executor, trustee, agent,
servant, employee, consultant, independent contractor or in any other manner
or
capacity), carry on, be engaged in, concerned with or employed by any person
in
connection with a business which competes the business conducted by Trimax
at
the time of such termination.
13.
|
Non-Solicitation
|
The
Consultant agrees that for a period of 2 months from the termination of this
Agreement for any reason whatsoever he will not, without the prior written
consent of Trimax directly or indirectly; (i) solicit or do business with
any
Customer or knowingly assist (as principal, beneficiary, director, shareholder,
partner, nominee, executor, trustee, agent, servant, employee, consultant,
independent contractor or in any other manner or capacity) any person directly
or indirectly to solicit or do business with any Customer with the intent
to
obtain the custom or trade of such Customer for a business which competes
with
the business conducted by Trimax at the time of such termination; (ii) induce
or
attempt to induce any Customer to reduce or curtail its business with Trimax
or
to terminate its relationship with Trimax; (iii) induce or encourage any
employee or consultant of Trimax to leave the employment or engagement of
Trimax
or authorize, approve or encourage any such action by any other person.
14.
|
Covenants
Reasonable
|
The
Consultant acknowledges and agrees: (i) Trimax would not have entered into
this
Agreement, without the covenants in sections 12
and 13
(ii) the covenants in sections 12
and 13
are reasonable in the circumstances and are necessary to protect the economic
position of Trimax; and (iii) the breach of any of the covenants in sections
12
and 13
will cause serious and irreparable harm to Trimax which can not adequately
be
compensated for by damages, and in the event of a breach of any such covenant,
the Consultant hereby consents to an injunction being issued against him
restraining him from any further breach of any such covenant, but the provisions
of this section shall not be construed so as to be a derogation of any other
remedy which Trimax may have in the event of such a
breach.
3
15.
|
Covenants
Independent
|
The
existence of any claim or cause of action of the Consultant against Trimax,
whether pursuant to this Agreement or otherwise, shall not constitute a defence
to the enforcement by Trimax of Sections 7,
8,
9,
10,
11,
12
and/or
13
and/or
against the Consultant.
16.
|
Enforceability
|
If
a
court of competent jurisdiction adjudges, declares or decrees all or any
portion
of the covenants in sections 12
or
13
void or
unenforceable in the circumstances, the portions thereof found void or
unenforceable shall, automatically and without further act on the part of
Trimax
or the Consultant, but only such matters before the court, be reduced in
scope,
territory or duration of time to such an extent that such court found the
same
to be enforceable in the circumstances before the court.
17.
|
Covenants
to Survive Closing
|
The
covenants of the Consultant contained in this Agreement shall survive the
termination of this Agreement for any reason and shall continue in accordance
with their terms.
18.
|
Benefit
and Binding
|
This
Agreement shall enure as the case may be to the benefit of and be binding
upon
the heirs, executors, administrators, successors and permitted assigns of
Trimax
and the Consultant.
19.
|
Amendments
and Waivers
|
No
amendment to this Agreement shall be valid or binding unless made in writing
and
duly executed by Trimax and the Consultant. No waiver of any breach of any
provision of this Agreement shall be effective or binding unless made in
writing
and signed by the party purporting to give such waiver and unless otherwise
provided in the written waiver, shall be limited to the specific breach
waived.
20.
|
Time
|
Time
shall be of the essence of this Agreement.
21.
|
Assignment
|
This
Agreement may not be assigned by the Consultant.
22.
|
Severability
|
If
any
provision of this Agreement is determined to be invalid or unenforceable
in
whole or in part, such invalidity or unenforceability shall attach only to
such
provision or part of such provision and all other provisions and parts of
provisions of this Agreement shall continue in full force and effect.
23.
|
Attornment
|
This
Agreement shall be construed in accordance with the laws of the Province
of
Ontario and the laws of Canada applicable in Ontario. Every claim or proceeding
in connection with or relating to this Agreement, including without limitation
the enforceability of this Agreement, unless otherwise specifically provided
for
in this Agreement, shall be submitted to the exclusive jurisdiction of the
courts of Ontario and no party or anyone on behalf of a party may commence
in,
or request that any proceeding be brought or moved to, another
jurisdiction.
24.
|
Notices
|
Any
notice or other communication required or permitted to be given under this
Agreement must be in writing and given by personal delivery, facsimile, e-mail
or by registered, mail, postage prepaid, as provided in this Section. Any
notice
shall be deemed to have been given at the time of delivery or sending by
facsimile or e-mail; and on the fifth (5th) Business Day after mailing, as
applicable. Any notice or other communication delivered by hand shall be
deemed
to have been received when it is delivered to the recipient or to the address
noted below. This Section shall also govern notice of change of address.
if
to Trimax:
Trimax
Corporation
0
Xxxxxxx
Xxxxxx, Xxxxx 000
Xxxxxxx,
Xxxxxxx
X0X
0X0
Fax
No.
000 000 0000
Attention:
Xxxxx X Xxxxxx
Fax
No.
000 000 0000
Email:
Xxxxx@xxxxxxxxxxxxxxx.xxx
4
if
to the
Consultant:
852907
Ontario Limited
00
Xxxxxxx Xxxxxx
Xxxxxxxxx,
Xxxxxxx
X0X
0X0
Attention
Xxxx Xxxxxx
Fax
No: 000
000
0000
Email:
xxxxxxx@xxxxxx.xxx
25.
|
Counterparts
and Execution by Facsimile and
Electronically
|
This
Agreement may be signed in counterparts and each counterpart shall constitute
an
original document and all counterparts, taken together, shall constitute
one and
the same instrument. A counterpart shall include any written document in
which a
party agrees to be bound by the terms of this Agreement in accordance with
the
form and substance, if any, prescribed by this Agreement. Delivery of an
executed counterpart of this Agreement by facsimile or transmitted
electronically in either a Tagged Image Format File (“TIFF”) or Portable
Document Format (“PDF”) shall be equally effective as delivery of a manually
executed counterpart of this Agreement. Any party delivering an executed
counterpart of this Agreement by facsimile, TIFF or PDF shall also deliver
a
manually executed counterpart of this Agreement, but failure to do so shall
not
affect the validity, enforceability or binding effect of this
Agreement.
5
26.
|
Further
Assurances
|
Trimax
and or the Consultant shall, from time to time, execute and deliver all such
further documents and do all acts and things as may be reasonably required
to
effectively carry out or better evidence or perfect the full intent and meaning
of this Agreement.
IN
WITNESS WHEREOF the
parties hereto have executed this Agreement as of the effective date first
written above.
Trimax
Corporation
|
|||
By:
|
|||
**,
President
|
|||
852907
Ontario Limited
|
|||
By:
|
/s/
Xxxx Xxxxxx
|
||
Consultant
|
6
SCHEDULE
‘A’
Consulting
Services
The
following consulting services are based on a five day work week where the
consultant will provide these duties in a full time manner and be available
to
the Business as required.
The
Consultants services are as follows:
·
|
Establish,
manage and direct the following area's: Administration, Finance,
Human
Resources, Branding, Sales and
Marketing.
|
·
|
Lead
Trimax to gain short term revenues
|
·
|
Lead
and administer Trimax’s Retail Market BPL startup structure and
deliverables for the term of the
agreement
|
·
|
Generate
the first business opportunity for Trimax into Ontario’s Electricity
Distributor marketplace.
|
7
SCHEDULE
‘B’
Remuneration
Expenses:
|
The
Consultant shall be reimbursed for those expenses for which he
obtains
prior written approval from Trimax’s
CEO
|
Consulting
Fee
Cash
|
$5000.00
Canadian paid monthly, at the end of each month, a total of $15,000
by
end of the term of the contract.
|
Shares:
|
The
Consultant shall be entitled to a potential of 218333
freely tradable S8 shares valued at $0.30 Canadian per share in
the
capital of Trimax.
|
For
the Following Service:
o
|
Establish,
manage and direct the following area's: Administration, Finance,
Human
Resources, Branding, Sales and
Marketing.
|
o
|
Lead
Trimax to gain short term revenues
|
The
Consultant shall Receive
158333
shares
shall be processed for delivery to the Consultant on signing of this
agreement.
For
the Following Service:
o
|
Lead
and administer Trimax’s Retail Market BPL startup
structure.
|
o
|
Meet
a milestone of installing a minimum of 200 BPL hardware solutions
into
residential homes in Ontario.
|
The
Consultant May Receive (if Milestone is met)
30,000
shares
shall be delivered to the Consultant on completion of the contract if the
above
milestone has been met.
For
the Following Service:
o
|
Generate
the first business opportunity for Trimax into Ontario’s Electricity
Distributor marketplace
|
o
|
Meet
a milestone of installing a minimum of $45, 000 of Trimax invoiced
hardware within Local Electrical Distributors in Ontario or within
clients
formally referred to by Local Electrical
Distributors.
|
The
Consultant May Receive (if Milestone is met)
30,000
shares
shall be delivered to the Consultant on completion of the contract if the
above
milestone has been met.
8