CONSULTING AGREEMENT
Exhibit
10.1
THIS
AGREEMENT
made
with effect from the 1st day of September, 2005 (the “Effective
Date”)
BETWEEN:
MGG
Consulting
00000
Xxxxxxxxx Xxxxxxxx
Xxxxxxxx,
XX X0X 0X0
(the
“Consultant”)
AND:
Triangle
Petroleum Corporation
Xxxxx
0000, 000- 0xx Xxxxxx XX
Xxxxxxx,
XX X0X 0X0
(the
“Company”)
RECITALS:
A. The
Company has requested MGG Consulting's (the “Consultant”) assistance to perform
the functions and work as defined in 2.1 for the Company; and
B. The
Company has agreed to pay the fees for work undertaken on behalf of the Company,
on the terms and conditions contained herein.
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 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.
1.2 Amendments
No
change
or modification of this Agreement will be valid unless it is in writing and
signed by each party to this Agreement.
1.3 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 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.
1.4
Governing
Law
This
Agreement will be governed by and construed in accordance with the laws of
the
Province of Alberta and the laws of Canada applicable in such
Province.
ARTICLE
2
SERVICES
AND REMUNERATION
2.1 Services
The
Consultant agrees to use its reasonable efforts to:
(a) Perform
the functions of President; and,
(b) Assist
management and the Board of Directors of the Company as requested.
2.2 Remuneration
For
providing the services set out in 2.1 above, the Company agrees to pay the
Consultant the following:
(a)
$10,000 (plus GST) per month payable monthly in arrears and commencing on the
effective date of September 1, 2005. Remuneration to be paid in US Funds.
2.3 Consultant
Not Employee
The
parties agree that the Consultant is not an employee of the Company and, as
such, save as required by law; there shall be no deductions for any statutory
withholdings such as income tax, Canada Pension Plan, Unemployment Insurance
or
Worker’s Compensation.
2.4 Statutory
Withholdings
The
Consultant agrees to make and remit all statutory withholdings as may be
required to be made by the Consultant in connection with the performance of
its
services for the Company.
ARTICLE
3
GENERAL
OBLIGATIONS OF THE CONSULTANT
3.1
The
Company’s Ownership of Rights
The
Consultant acknowledges and agrees as follows with respect to the ownership
of
rights by the Company and the limitation of the Consultant’s
rights:
| (a) |
The
Consultant acquires no rights in any inventions or developments or
work
products, including, but not limited to, documents, written materials,
programs, discs and tapes (the “Work Products”) resulting from, derived
from or otherwise related to the performance of the Services by the
Consultant or the Confidential Information. All such inventions,
developments and Work Products are the property of the Company. The
Consultant will promptly and duly execute and deliver to the Company
such
further documents and assurances and take such further action as
the
Company may from time to time request in order to more effectively
carry
out the intent and purpose of this section, and to establish and
protect
the rights, interests and remedies of the
Company.
|
| (b) |
The
Consultant will not at any time apply for any copyright, trade xxxx,
patent, or other intellectual property protection which would affect
the
ownership by the Company of any rights in the intellectual property
associated with 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 associated with
the
Work Products or aid or abet anyone else in doing
so.
|
2
ARTICLE
4
TERM
4.1 This
Agreement will take effect on the Effective Date and will continue in full
force
and effect for a period of two years with automatic one year renewals unless
terminated by one of the parties in accordance with this
Agreement.
4.2 Notwithstanding
any other provision of this Agreement, the Consultant or the Company may,
at any
time, give 30 days advance written notice to the other of its intention
to
terminate this Agreement and on the expiration of such period this Agreement
shall be terminated. Such notice may expire on any day of the month and
any
remuneration payable hereunder shall be proportioned to the date of such
termination.
ARTICLE
5
UNAUTHORIZED
DISCLOSURE
5.1
The consultant acknowledges that:
|
(a)
|
The
Consultant will be provided with access to confidential and proprietary
information and knowledge relating to the business of the Company
and the
affairs of industry partners and prospective industry partners of
the
Company; and
|
| (b) |
The
Consultant will be advanced and promoted by the Company to industry
partners and prospective industry partners of the Company as a person
of
special competence in the fields comprising the business of the
Company.
|
The
information and knowledge referred to in paragraph (a) above collectively
comprises an important and valuable asset of the Company and the parties hereto
agree and acknowledge that any disclosure or unauthorized use of any such
information or knowledge by the Consultant will cause damage to the Company.
The
Consultant covenants and agrees that, save and except in the pursuit of the
business and affairs of the Company:
| (a) |
It
will not, either during the term of this Agreement or within the
period of
one (1) year thereafter, directly or indirectly, use or disclose
to any
person, firm, or corporation, any information relating to the finances
of
the Company or finances of industry partners of the Company financial
status, the identity of existing or prospective industry
partners of
the Company or business methods of the Company, which the Consultant
may
have acquired in the course of, or as incidental to, its providing
consulting services to the Company or the Company’s industry
partners;
|
| (b) |
It
will not, either during the term of this Agreement or at any time
thereafter, remove originals or copies of any reports, records, memoranda
or data of any kind or description concerning the business and affairs
of
the Company, or any industry partners or prospective industry partner
of
the Company, even where such reports or memoranda have been furnished
to
or prepared by the Consultant during the term of this Agreement,
nor shall
the Consultant make copies or notes thereof, of any kind or description,
for its own use or the use of others; and
|
| (c) |
Upon
the termination of this Agreement by either party for any reason
whatsoever, the Consultant shall immediately turn over to the Company,
all
such documents and data referred to in paragraph (b) above, which
may be
in its possession.
|
3
ARTICLE
6
ASSIGNMENT
AND SUBCONTRACTING
6.1 The
Consultant shall not assign this Agreement in whole or in part. The Consultant
shall not subcontract all or any portion of the services to be performed under
this Agreement without the prior written consent of the Company, which consent
the Company may withhold in its absolute discretion.
ARTICLE
7
UNDERTAKINGS
BINDING ON EMPLOYEES AND/OR SUBCONTRACTORS
7.1 The
Consultant shall ensure that any of its employees and/or permitted
subcontractors performing the services agreed to by the Consultant under this
Agreement are bound by this agreement.
ARTICLE
8
LIABILITIES
AND INDEMNITIES OF THE CONSULTANT
AND
THE COMPANY
8.1 Liability
and Indemnity of the Consultant
| (a) |
The
Consultant shall be liable to the Company for any loss or damage
arising
out of or attributable to negligence of the Consultant, its employees,
subcontractors or agents.
|
| (b) |
The
Consultant shall indemnify and hold harmless the Company, its directors,
officers, employees and agents from and against all claims, demands,
losses, costs, damages, suits or proceedings whatsoever (collectively
referred to as “Claims”) that arise out of or are attributable to
negligence of the Consultant or its employees, subcontractors or
agents,
and the costs thereof, including, without limitation, all legal expenses
on a solicitor and client basis, except where such Claims are caused
by
the negligence of the Company.
|
| (c) |
The
Consultant shall be liable for and shall indemnify and save harmless
the
Company and each of its representatives, directors, officers, employees
and agents, with respect to any income taxes payable by the Consultant
as
a result of this Agreement, or for any contributions and penalties
imposed
on the Company by any governmental or other public authority having
jurisdiction, for failure by the Consultant to comply with payment
and
contribution requirements pursuant to the Workers’ Compensation Act,
Canada Pension Plan Act, Unemployment Insurance Act and Income Tax
Act.
|
8.2
Liability
and Indemnity of the Company
|
(a)
|
The
Company shall be liable to the Consultant and its employees for any
loss
or damage arising out of or attributable to negligence of the Company,
or
its employees.
|
(b)
The Company shall indemnify and hold harmless the Consultant and each of its
directors, officers, and employees, from and against all Claims that arise
out
of or are attributable to negligence of the Company or its employees or agents,
and the cost thereof, including, without limitation, all legal expenses on
a
solicitor and client basis, except where such Claims are caused by the
negligence of the Consultant.
(c)
The Company shall be liable for and shall indemnify and save harmless the
Consultant, its directors, officers, employees and sub-contractors, with respect
to any income taxes payable by the Company or for any contributions and
penalties imposed on the Consultant by any governmental or other public
authority having jurisdiction, for failure by the Company to comply with payment
and contribution requirements pursuant to the Workers’ Compensation Board Act,
Canada Pension Plan Act, Unemployment Insurance Act and Income Tax Act.
4
ARTICLE
9
CONFIDENTIALITY
AND COOPERATION
9.1
Confidentiality
The
Consultant shall keep in confidence and shall not disclose or make available
to
third parties or in any other way make use of any materials or information
the
Company provides to the Consultant pursuant to this Agreement, other than to
the
extent necessary to provide its services set out herein. Upon termination of
this Agreement, the Consultant will return to the Company all materials that
have been provided to the Consultant by the Company. This duty of
confidentiality shall not extend to knowledge and information which is know
to
the Consultant or is known to the public at the date of this
Agreement.
ARTICLE
10
GENERAL
10.1
Arbitration
All
disputes arising out of or in connection with this contract, or in respect
of
any defined legal relationship associated therewith or derived therefrom, shall
be referred to and finally resolved by arbitration pursuant to the provisions
of
the Arbitration Act of Alberta.
10.2
Notices
Any
notice, direction, request or other communication required or contemplated
by
any provision of this Agreement shall be given in writing and shall be given
by
delivering or faxing same to the Company or the Consultant, as the case may
be,
as follows:
To
the
Consultant at:
00000
Xxxxxxxxx Xxxxxxxx
Xxxxxxxx,
XX X0X 0X0
Attention:
Xxxx X. Xxxxxxxxx
To
the
Company at:
Triangle
Petroleum Corporation
Xxxxx
0000, 000 - 0xx Xxxxxx XX
Xxxxxxx,
XX X0X 0X0
Attention:
Xxx Xxxxxxx, Director
Any
such
notice, direction, request or other communication shall be deemed to have been
given or made on the date on which it was delivered or, in the case of fax,
on
the next business day after receipt of transmission. Either party may change
its
fax number or address for service from time to time by notice in accordance
with
the foregoing.
10.3
Maintenance
of Records
The
Consultant agrees to keep records and books of account with supporting vouchers,
invoices and other documentation showing expenditures made by it in the
performance of the services. The Consultant also agrees to maintain adequate
and
proper time records with respect to time expended in the performance of the
services contemplated by this Agreement. The Company has the right to examine,
at all reasonable times, the records and books of account of the Consultant
to
the extent necessary to verify amounts claimed by the Consultant pursuant to
this Agreement.
5
10.4
Laws
This
Agreement is governed by the laws of the Province of Alberta.
10.5
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.
10.6
Enurement
This
Agreement shall 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.
|
Per
authorized signatory
/s/
XXXX XXXXXXXXX
Xxxx
Xxxxxxxxx
MGG
Consulting
|
|
Per
authorized signatory:
/s/
XXX XXXXXXX
Triangle
Petroleum Corporation
Xxx
Xxxxxxx, Director
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