EXHIBIT 10.7
CONSULTING AGREEMENT
THIS AGREEMENT made effective as of the 5th day of October, 2000 (the "Effective
Date").
BETWEEN:
XXXX XXXXXXX, of 000 Xxxxxxxxx Xxxx, Xxxxxx Xxxxxx Xxxx,
Xxxxxxxx 00000;
(the "Consultant")
AND:
XXXXXXXXX.XXX, INC., a corporation incorporated under the laws of
the State of Washington and having an office at P.O. Box 280, 92
Xxxx Xxxx, Windward Road, Providenciales, Turks & Caicos Islands,
B.W.I.;
(the "Corporation")
RECITALS:
A. The Corporation has agreed to engage the Consultant to provide the Services
and the Consultant has agreed to provide such Services, in accordance with the
terms and conditions contained herein;
B. The Consultant is an independent contractor and is not an employee of or
partner or joint venturer with the Corporation;
C. The Corporation has also requested that the Consultant enter into
confidentiality, non-competition and non-solicitation provisions, and the
Consultant has agreed to do so, to specify the obligations which the Consultant
has agreed to accept as a condition of the Consultant being engaged to provide
the Services;
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 Definitions
In this Agreement, the following words and expressions have the following
meanings unless the context otherwise requires:
(a) "Affiliate" has the same meaning as in the Company Act (British
Columbia) or any successor legislation, as amended from time to time.
(b) "Agreement" means this consulting agreement and schedules attached to
this consulting agreement, as amended or supplemented from time to
time.
(c) "approved by the Corporation" or words of similar import means
approved by representatives of the Corporation other than the
Consultant;
(d) "Business of the Group" means (i) the online trivia game show
business; and (ii) any other material business carried on from time to
time by any member of the Group.
(e) "Competitive Business" means any business or enterprise that competes
with the Business of the Group.
(f) "Confidential Information" means all confidential or proprietary
facts, data, techniques and other information relating to the Business
of the Group which may before or after the date of this Agreement be
disclosed or delivered to the Consultant by the Corporation or by any
other member of the Group, or which may otherwise come within the
knowledge of the Consultant, or which may be developed by the
Consultant in connection with the Services or from any other
Confidential Information.
(g) "Group" means the Corporation and its Affiliates.
(h) "Intellectual Property Rights" means all rights in respect of
intellectual property including, without limitation, all patent,
industrial design, integrated circuit topography, know-how, trade
secret, privacy and trade-xxxx rights and copyright, to the extent
those rights may subsist anywhere in the universe.
(i) "Person" means any individual, partnership, limited partnership, joint
venture, syndicate, sole proprietorship, company or corporation with
or without share capital, unincorporated association, trust, trustee,
executor, administrator or other legal personal representative,
regulatory body or agency, government or governmental agency or entity
however designated or constituted.
(j) "Services" means overseeing the development of the Corporation's
online trivia game show business.
1.2 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.
1.3 Amendments
No change or modification of this Agreement will be valid unless it is in
writing and signed by each party to
this Agreement.
1.4 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
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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.
1.5 Governing Law
This Agreement will be governed by and construed in accordance with the laws of
the Province of British Columbia and the laws of Canada applicable in such
Province.
ARTICLE 2
ENGAGEMENT
2.1 Engagement
The Corporation hereby engages the Consultant to provide the Services to the
Corporation, and the Consultant hereby covenants and agrees to provide such
Services to the Corporation, subject to the terms and conditions of this
Agreement.
2.2 Business of the Group
The Consultant will not, during the term of this Agreement, engage in any
business, enterprise or activity that is contrary to or detracts from the due
performance of the Business of the Group.
2.3 Scope of Duties
During the term of this Agreement, the Consultant will give the Corporation the
benefit of the Consultant's knowledge, expertise and ingenuity. The Consultant
will use all reasonable endeavours to promote the interests of the Corporation.
2.4 Fees
The Corporation will pay to the Consultant fees at the rate of US$1,500 per
month including goods and services tax, payable monthly on the last day of each
month. The Consultant will be reasonably compensated by the Corporation if the
Corporation has cumulative cash revenues in excess of US$390,000.
2.5 Expenses
The Consultant will be reimbursed for all reasonable travelling and other
out-of-pocket expenses actually and properly incurred by the Consultant and
approved by the Corporation in connection with the Consultant's duties hereunder
provided that the Consultant first furnishes statements and vouchers for all
such expenses to the Corporation. The Consultant will be reimbursed by the
Corporation for all reasonable expenses necessarily and actually incurred by the
Consultant and approved by the Corporation in the provision of the Services,
provided that the Consultant submits to the Corporation detailed invoices and
supporting documentation acceptable to the Corporation, acting reasonably. The
Consultant will invoice the Corporation for such expenses monthly in arrears.
All such invoices will be payable by the Corporation within 30 days of the date
of each such invoice.
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2.6 Consultant Not Employee
The parties agree that the Consultant is not an employee of the Corporation and,
as such, save as required by law, there will be no deductions for any statutory
withholdings such as income tax, Canada Pension Plan, Unemployment Insurance or
Worker's Compensation.
2.7 Same Services for Other Companies
The Consultant will not be required to devote the whole of his time and energies
to the performance of the Services and the Consultant represents and warrants to
the Corporation that the Consultant currently performs, or is attempting to
secure an agreement to perform, the same services for other companies or
corporations.
2.8 No Participation in Plans
The Consultant will not be entitled to participate in any medical, dental,
extended health or group life insurance plans of the Corporation.
2.9 No Partnership
This Agreement will not be construed as creating a partnership, joint venture or
agency relationship between the parties or any other form of legal association
which would impose liability upon one party for any act or failure to act by the
other party.
ARTICLE 3
CONFIDENTIALITY
3.1 General Obligation of Confidentiality
The Consultant acknowledges that the Confidential Information consists entirely
of information and knowledge which is the exclusive property of the Corporation
or another member of the Group or persons from whom the Corporation has obtained
its rights. The Consultant will treat the Confidential Information in strict
confidence and will not disclose or permit the disclosure of the Confidential
Information unless otherwise required by law or by the rules or policies of any
stock exchange having jurisdiction over the Corporation or another member of the
Group, or except as previously approved in writing by the Corporation. The
Consultant will protect such Confidential Information from disclosure by
exercising a standard of care as may reasonably be expected to preserve its
secret and confidential nature. All documents containing Confidential
Information are the property of the Corporation. Without limiting the generality
of the foregoing, the Consultant hereby transfers to the Corporation the
property rights in all documents which now or hereafter may contain the
Confidential Information.
3.2 Use of Confidential Information
The Consultant will not use the Confidential Information for any purpose other
than as may reasonably be required in order to provide the Services.
3.3 Prohibition on Copying
The Consultant will not copy, modify or part with the Confidential Information
except in the course of providing the Services or with the written approval of
the Corporation, except that the Consultant is
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permitted to make a reasonable number of copies of the Confidential Information
for the specific purposes authorized by this Agreement. All such copies remain
the property of the Corporation.
3.4 Exceptions
Any obligations specified in this Article will not apply to the following:
(a) any information which is presently in the public domain;
(b) any information which subsequently becomes part of the public domain
through no fault of the Consultant; or
(c) any information which is required to be disclosed by a court of
competent jurisdiction.
3.5 Injunctive Relief
The Consultant acknowledges that irreparable harm may result to the Corporation
if the Consultant breaches the Consultant's obligations under this Article or
under Articles 4 or 6. The Consultant acknowledges that such a breach may not
properly be compensated by an award of damages. Accordingly, the remedy for any
such breach may include, in addition to other available remedies and damages,
injunctive relief or other equitable relief enjoining such breach at the
earliest possible date.
ARTICLE 4
GENERAL OBLIGATIONS OF THE CONSULTANT
4.1 Ownership of Rights
The Consultant acknowledges and agrees as follows with respect to the ownership
of rights by the Corporation and the limitation of the Consultant's rights:
(a) Nothing contained in this Agreement will be construed as an assignment
to the Consultant of any right, title or interest in the Confidential
Information. All right, title and interest relating to the
Confidential Information is expressly reserved by the Corporation.
(b) The Consultant acquires no Intellectual Property Rights in, and will
make prompt and full disclosure to the Corporation of, any discovery,
invention, development, production, process, improvement or work
product, 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 provision of the
Services by the Consultant or the Confidential Information. All such
Work Products and all related Intellectual Property Rights are the
property of the Corporation. This Agreement constitutes the
Consultant's absolute, unconditional and irrevocable assignment,
transfer and conveyance of all past, present and future right, title,
benefit and interest in and to all Intellectual Property Rights in
respect of such Work Products. The Consultant will promptly and duly
execute and deliver to the Corporation such further documents and
assurances and take such further action as the Corporation may from
time to time request in order to more effectively carry out the intent
and purpose of this Article, and to establish and protect the
Intellectual Property Rights, interests and remedies of the
Corporation.
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(c) The Consultant will not at any time apply for any Intellectual
Property Rights that would affect the ownership by the Corporation of
any Intellectual Property Rights associated with the Confidential
Information or 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 Rights
associated with the Confidential Information or the Work Products or
aid or abet anyone else in doing so. To the extent that copyright may
subsist in the Confidential Information or the Work Products the
Consultant hereby waives all past, present and future moral rights the
Consultant may have.
ARTICLE 5
INDEMNITY
5.1 Indemnity
The Consultant will defend, indemnify and save harmless the Corporation from and
against all actions, proceedings, demands, claims, liabilities, losses, damages,
judgments, costs and expenses including, without limiting the generality of the
foregoing, legal fees and disbursements on a solicitor and his own client basis
(together with all applicable taxes) which the Corporation may be liable to pay
or may incur by reason of a breach of the terms of this Agreement or any
liability that the Corporation may incur to any authority for source deductions,
goods and services tax, provincial sales tax and any other remittance
obligations arising with respect to payments to the Consultant pursuant to this
Agreement.
ARTICLE 6
NON-COMPETITION AND NON-SOLICITATION
6.1 Covenants
The Consultant hereby covenants and agrees to comply with all of the
restrictions set forth below during the term of this Agreement and for a period
of one year after the termination of this Agreement:
(a) The Consultant will not, either individually or in conjunction with
any Person, as principal, agent, director, officer, employee, investor
or in any other manner whatsoever, directly or indirectly, engage in
or become financially interested in a Competitive Business within any
geographic area that the Corporation carries on business. The
foregoing will not prevent the Consultant from holding any class of
publicly held shares of a company, partnership or other organization
provided that the Consultant, alone or in conjunction with any other
Person, will not directly or indirectly hold more than 5% of the
shares of any such class.
(b) The Consultant will not, either directly or indirectly, on the
Consultant's own behalf or on behalf of others, solicit, divert or
appropriate or attempt to solicit, divert or appropriate to any
Competitive Business, any Business or actively sought prospective
Business of the Group, or any customers with whom any member of the
Group has current agreements relating to the Business of the Group, or
with whom the Consultant has dealt, or with whom the Consultant has
supervised negotiations or business relations, or about whom the
Consultant has acquired Confidential Information while providing the
Services.
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(c) The Consultant will not, either directly or indirectly, on his own
behalf or on behalf of others, solicit, divert or hire away, or
attempt to solicit, divert or hire away, any independent contractor or
any person employed by any member of the Group, or persuade or attempt
to persuade any such individual to terminate his or her contract or
employment with any member of the Group.
(d) The Consultant will not directly or indirectly impair or seek to
impair the reputation of any member of the Group, nor any
relationships that any member of the Group has with its employees,
independent contractors, customers, suppliers, agents or other parties
with which any member of the Group does business or has contractual
relations.
ARTICLE 7
TERM
7.1 Term
This Agreement will have a term (the "Term") of one year commencing on the
Effective Date and ending on October 4, 2000, unless this Agreement is
terminated in accordance with the provisions of this Agreement.
7.2 Termination
Notwithstanding any other provision of this Agreement, the Consultant or the
Corporation may, at any time, give 60 days' advance written notice to the other
of its intention to terminate this Agreement and on the expiration of such
period this Agreement will be terminated. Such notice may expire on any day of
the month and any fees payable hereunder will be proportioned to the date of
such termination.
7.3 Termination Upon Occurrence of Event
The Corporation may terminate this Agreement immediately without advance written
notice to the Consultant upon the occurrence of any of the following events:
(a) any wilful failure by the Consultant to provide any of the Services
under this Agreement;
(b) the Consultant's commission of a crime which relates directly to the
provision of the Services, or any act by the Consultant involving
money or other property involving any member of the Group that would
constitute a crime in the jurisdiction involved;
(c) any act by the Consultant of fraud, misappropriation, dishonesty,
embezzlement or similar conduct against any member of the Group or
customer of any member of the Group;
(d) any material breach by the Consultant of any of the terms of this
Agreement which remains uncured after the expiration of ten days
following the delivery of written notice of such breach to the
Consultant by the Corporation; or
(e) any act by the Consultant which is materially injurious to the
Corporation or the Business of the Group.
Any fees payable hereunder will be proportioned to the date of such termination.
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7.4 Return of Property
Upon termination of this Agreement, the Consultant will return to the
Corporation all Corporation property including all written information, tapes,
discs or memory devices and copies thereof, and any other material on any medium
in the Consultant's possession or control pertaining to provision of the
Services, without retaining any copies or records of any Confidential
Information or Work Products whatsoever.
ARTICLE 8
GENERAL
8.1 Notices
Any notice, direction, request or other communication required or contemplated
by any provision of this Agreement will be given in writing and will be given by
delivering same to the Corporation or the Consultant, as the case may be, as
follows:
(a) To the Consultant at:
000 Xxxxxxxxx Xxxx
Xxxxxx Xxxxxx Xxxx, Xxxxxxxx 00000
(b) To the Corporation at:
x/x X.X. Xxx 000
00 Xxxx Xxxx, Xxxxxxxx Xxxx
Providenciales, Turks & Caicos Islands, B.W.I.
Any such notice, direction, request or other communication will be deemed to
have been given or made on the date on which it was delivered. Either party may
change its address for service from time to time by notice in accordance with
the foregoing. Either party may provide a fax number for service by notice in
accordance with the forgoing.
8.2 Assignment
This Agreement is not assignable in whole or in part by the Consultant without
the prior written consent of the Corporation. Any attempt to assign any of the
rights, or to delegate any of the duties or obligations under this Agreement
without such written consent is void.
8.3 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.
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8.4 Enurement
Subject to the restrictions on transfer contained in this Agreement, this
Agreement will 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 as of the date first
above written.
XXXXXXXXXX.XXX, INC. by its authorized
signatory:
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Authorized Signatory
SIGNED by XXXX XXXXXXX in the presence of:
---------------------------------
-------------------------------------- XXXX XXXXXXX
Witness Signature
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Witness Name
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Witness Address
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Witness Occupation
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