Exhibit 10.5
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INDEPENDENT CONTRACTOR AGREEMENT
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This Independent Contractor Agreement ("Agreement") is made and effective this
15th day of May, 2004,
BETWEEN: Xxxxxxx Xxxxxx (the "Independent Contractor"), of 0000 Xxxx
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00xx Xxxxxx, Xxxxxxxxx, XX, X0X 0X0:
AND: Europa Trade Agency Ltd. (the "Company"), a corporation
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organized and existing under the laws of the State of Nevada
and having an office at 0000 Xxxx 00xx Xxxxxx, Xxxxxxxxx,
XX, X0X 0X0
RECITALS
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Independent Contractor is engaged in providing sales and marketing consulting
services.
Company desires to engage and contract for the services of the Independent
Contractor to perform certain tasks as set forth below. Independent Contractor
desires to enter into this Agreement and perform as an independent contractor
for the company and is willing to do so on the terms and conditions set forth
below.
NOW, THEREFORE, in consideration of the above mutual promises and conditions
contained in this Agreement, and other good and valuable consideration the
receipt and sufficiency of which is hereby acknowledged, the parties agree as
follows:
1. TERMS
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This Agreement shall be effective commencing May 15, 2004, and shall continue
until terminated by either party as provided herein.
2. STATUS OF INDEPENDENT CONTRACTOR
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This Agreement does not constitute a hiring by either party. It is the parties
intentions that Independent Contractor shall have an independent contractor
status and not be an employee for any purposes. Independent Contractor shall
retain sole and absolute discretion in the manner and means of carrying out
their activities and responsibilities under this Agreement. This Agreement shall
not be considered or construed to be a partnership or joint venture, and the
Company shall not be liable for any obligations incurred by Independent
Contractor unless specifically authorized in writing. Independent Contractor
shall not act as an agent of the Company, ostensibly or otherwise, nor bind the
Company in any manner, unless specifically authorized to do so in writing.
3. TASKS, DUTIES, AND SCOPE OF WORK
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a. Independent Contractor agrees to devote as much time, attention, and
energy as necessary to complete or achieve the following: market and
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assist in selling the Company's products, which is referred to in this
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Agreement as the "Scope of Work".
b. Independent Contractor shall additionally perform any and all tasks
and duties associated with the Scope of Work set forth above,
including but not limited to, work being performed already or related
change orders. Independent Contractor shall not be entitled to engage
in any activities which are not expressly set forth by this Agreement.
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c. The books and records related to the Scope of Work set forth in this
Agreement shall be maintained by the Independent Contractor at the
Independent Contractor's principal place of business and open to
inspection by Company during regular working hours. Documents to which
Company will be entitled to inspect include, but are not limited to,
any and all contract documents, change orders/purchase orders and work
authorized by Independent Contractor or Company on existing or
potential projects related to this Agreement.
d. Independent Contractor will not be required to follow or establish a
regular or daily work schedule. Independent Contractor will not rely
on the equipment or offices of Company for completion of tasks and
duties set forth pursuant to this Agreement. Any advice given
Independent Contractors regarding the scope of work shall be
considered a suggestion only, not an instruction. Company retains the
right to inspect, stop, or alter the work of Independent Contractor to
assure its conformity with this Agreement.
4. COMPENSATION
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a. Independent Contractor shall be entitled to compensation for
performing those tasks and duties related to the Scope of Work as
follows:
50% of the net profits made by the Company in relation to sales
Independent Contractor facilitates. In addition, Independent
Contractor will be paid 50% of the value of ongoing agreements with
customers which are sold, transferred or assigned by the Company,
provided Independent Contractor facilitated dealings with that
customer. Independent Contractor is entitled to review, and engage an
independent accountant to review, any and all books and records
relating to sales facilitated by Independent Contractor.
b. Such compensation shall become due and payable to Independent
Contractor in the following time, place, and manner:
Forthwith upon payment to the Company by any customer.
5. NOTICE CONCERNING WITHHOLDING OF TAXES
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Independent Contractor recognizes and understands that it will receive a
statement from the Company setting out amounts due and related tax statements,
and will be required to file tax returns and pay taxes in accordance with all
provisions of applicable tax laws. Independent Contractor hereby promises and
agrees to indemnify the Company for any damages or expenses, including
attorney's fees, and legal expenses, incurred by the Company as a result of
independent contractor's failure to make such required payments.
6. AGREEMENT TO WAIVE RIGHTS TO BENEFITS
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a. Independent Contractor hereby waives and foregoes the right to receive
any benefits given by Company to its regular employees, including, but
not limited to, health benefits, vacation benefits and sick leave
benefits. This waiver is applicable to all non-salary benefits which
might otherwise be found to accrue to the Independent Contractor by
virtue of their services to Company, and is effective for the entire
duration of Independent Contractor's engagement with Company. This
waiver is effective independently of Independent Contractor's
employment status as adjudged for taxation purposes or for any other
purpose.
b. Neither this Agreement, nor any duties or obligations under this
Agreement may be assigned by either party without the consent of the
other.
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7. TERMINATION
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This Agreement may be terminated prior to the completion or achievement of the
Scope of Work by either party giving 60 days' prior written notice to the other.
Such termination shall not prejudice any other remedy to which the terminating
party may be entitled, either by law, in equity, or under this Agreement.
8. NON-DISCLOSURE OF TRADE SECRETS, CUSTOMER LISTS AND OTHER PROPRIETARY
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INFORMATION
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a. Independent Contractor agrees not to disclose or communicate, in any
manner, either during or after Independent Contractor's agreement with
Company, information about Company, its operations, clientele, or any
other information, that relate to the business of Company including,
but not limited to, the names of its customers, its marketing
strategies, operations, or any other information of any kind which
would be deemed confidential, a trade secret, a customer list, or
other form of proprietary information of Company. Independent
Contractor acknowledges that the above information is material and
confidential and that it affects the profitability of Company.
b. Independent Contractor understands that any breach of this provision,
or that of any other Confidentiality and Non-Disclosure Agreement, is
a material breach of this Agreement. To the extent Independent
Contractor feels they need to disclose confidential information, they
may do so only after obtaining written authorization from the
President of the Company.
9. NON-SOLICITATION
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Independent Contractors shall not, during the Agreement and for a period of one
year immediately following termination of this Agreement, either directly or
indirectly, call on, solicit, or take away, or attempt to call on, solicit, or
take away, any of the customers or clients of the Company on whom Independent
Contractor called or became acquainted with during the terms of this Agreement,
either for their own benefit, or for the benefit of any other person, firm,
corporation or organization.
10. NON-RECRUIT
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Independent Contractor shall not, during this Agreement and for a period of one
year immediately following termination of this agreement, either directly or
indirectly, recruit any of Company's employees for the purpose of any outside
business.
11. RETURN OF PROPERTY
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On termination of this Agreement, or whenever requested by the parties, each
party shall immediately deliver to the other party all property in its
possession, or under its care and control, belonging to the other party to them,
including but not limited to, proprietary information, customer lists, trade
secrets, intellectual property, computers, equipment, tools, documents, plans,
recordings, software, and all related records or accounting ledgers.
12. EXPENSE ACCOUNTS
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Independent Contractor and the Company agree to maintain separate accounts in
regards to all expenses related to performing the Scope of Work. Independent
Contractor is solely responsible for payment of expenses incurred pursuant to
this Agreement unless provided otherwise in writing by the President of the
company. Independent Contractor agrees to execute and deliver any agreements and
documents prepared by Company and to do all other lawful acts required to
establish document and protect such rights.
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13. WORKS FOR HIRE
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Independent Contractor agrees that the Scope of Work, all tasks, duties,
results, inventions and intellectual property developed or performed pursuant to
this Agreement are considered "works for hire" and that the results of said work
is by virtue of this Agreement assigned to the Company and shall be the sole
property of Company for all purposes, including, but not limited to, copyright,
trademark, service xxxx, patent, and trade secret laws.
14. LEGAL COMPLIANCE
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Independent Contractor is encouraged to treat all company employees, customers,
clients, business partners and other affiliates with respect and responsibility.
Independent Contractor is required to comply with all laws, ethical codes and
company policies, procedures, rules or regulations, including those forbidding
sex harassment, discrimination, and unfair business practices.
15. LICENSING, WORKERS' COMPENSATION AND GENERAL LIABILITY INSURANCE
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Independent Contractor agrees to immediately supply the Company with proof of
any licensing status required to perform the Scope of Work pursuant to this
Agreement, Workers' Compensation Coverage where required by law and General
Liability Insurance (including malpractice insurance, if warranted), upon
request of the Company.
16. PERSONS HIRED BY INDEPENDENT CONTRACTOR
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All persons hired by Independent Contractor to assist in performing the tasks
and duties necessary to complete the Scope of Work shall be the employees of
Independent Contractor unless specifically indicated otherwise in an agreement
signed by all parties. Independent Contractor shall immediately provide proof of
Workers' Compensation insurance and General Liability insurance covering said
employees, upon request of the Company.
17. NOTICES
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Any notice to be given hereunder by any party to the other may be affected
either by personal delivery in writing, or by mail, registered or certified,
postage pre-paid with return receipt requested. Mailed notices shall be
addressed to the parties at the addresses appearing in the introductory
paragraphs of this Agreement, but each party may change their address by written
notice in accordance with this paragraph. Notices delivered personally shall be
deemed communicated as of actual receipt; mailed notices shall be deemed
communicated as of five (5) days after mailing. Independent Contractor agrees to
keep Company current as to their business and mailing addresses, as well as
telephone, facsimile, email and pager numbers.
18. ATTORNEY'S FEES AND COSTS
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If any action at law or in equity is necessary to enforce or interpret the terms
of this Agreement, the prevailing party shall be entitled to reasonable
attorney's fees, costs and necessary disbursements incurred both before or after
judgment in addition to any other relief to which such party may be entitled.
19. MEDIATION AND ARBITRATION
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Any controversy between the parties to this Agreement involving the construction
or application of any of the terms, provisions, or conditions of this Agreement,
shall on written request of either party served on the other, be submitted first
to mediation and then if still unresolved to binding arbitration. Said
arbitration shall comply with and be governed by the provisions of the
Commercial Arbitration Act (British Columbia) unless the Parties agree otherwise
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in writing. The attorneys' fees and costs of arbitration shall be borne by the
losing party, as set forth in paragraph 18, unless the Parties stipulate
otherwise, or in such proportions as the arbitrator shall decide.
20. REPRESENTATION
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Each party of this Agreement acknowledges that no representations, inducements,
promises or agreements, orally or otherwise, have been made by any party hereto,
or anyone acting on behalf of any party hereto, which are not embodied herein,
and that no other agreement, statement or promise not contained in this
Agreement shall be valid or binding. Any modification of this Agreement shall be
effective only if it is in writing, signed and dated by all parties hereto.
21. INDEMNIFICATION
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Independent Contractor shall defend, indemnify, hold harmless, and insure
Company from any and all damages expenses or liability resulting from or arising
out of, any negligence or misconduct on Independent Contractor's part, or from
any breach or default of this Agreement which is caused or occasioned by the
acts of Independent Contractor. Independent Contractors shall insure that its
employees and affiliates take all actions necessary to comply with the terms and
conditions set forth in this Agreement. Independent Contractor shall name
Company as an additional insured on all related insurance policies including
workers compensation, and general liability.
22. CONTAINMENT OF ENTIRE AGREEMENT
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This Agreement is an independent document and supersedes any and all other
Agreements, either oral or in writing, between the parties hereto, except any
Confidentiality, Trade Secret, Non-Compete, Non-Disclosure, Indemnification or
Arbitration Agreement. This Agreement contains all of the covenants and
Agreements between the parties, except for those set forth in any
Confidentiality, Trade Secret, Non-Compete, Non-Disclosure, or Arbitration
Agreement.
23. PARTIAL INVALIDITY
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If any provision of this Agreement is held by a Court of competent jurisdiction
to be invalid, void or unenforceable, the remaining provisions shall
nevertheless continue in full force and effect without being impaired or
invalidated in any way. This Agreement shall not be terminated by the merger or
consolidation of the Company into or with any other entity.
24. GOVERNING LAW
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This Agreement shall be governed by, and construed under, the laws of the
province of British Columbia.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
day and year first above written.
EUROPA TRADE AGENCY LTD.
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/s/ Xxxxxx Xxxx /s/ Xxxxxxx Xxxxxx
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Authorized Signature Xxxxxxx Xxxxxx
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