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Prospecting and Survey Agreement
Prospecting and Surveying Agreement, made as of the 20th day of November
2000,(the "Agreement") between Diamond Discoveries International, Inc., a
Delaware corporation with its principal place of business at 000 Xxxx 00xx
Xxxxxx, Xxxxx 000, Xxx Xxxx, Xxx Xxxx 00000, ("the Company"), and Prospecting
Geophysics Ltd., a Canadian company with its principal place of business at 000
Xxxxxxxxxx Xxxxxx, Xxx x'Xx, Xxxxxx, X0X 0X0, hereinafter referred to as ("the
Contractor.")
W I T N E S S E T H:
WHEREAS, the Company desires to retain the prospecting and surveying
services of the Contractor; and
WHEREAS, the Contractor desires to provide such services to the Company
on the terms and conditions set forth herein; and
NOW, THEREFORE, in consideration of the mutual covenants of the parties
which are hereinafter set forth and for other good and valuable consideration,
receipt of which is hereby acknowledged, the parties agree as follows:
1. Term. The term of the Contractor's services shall commence on the date of
this agreement, and unless terminated earlier or extended as provided below,
shall continue for a period of eighteen (18) months from such date ("Term of
Service"). Upon the expiration of the initial Term of Service and on each
anniversary date thereafter, the services of Contractor shall be renewed and
extended for an additional year unless either party provides written notice to
the other party, of his or its, as the case may be, desire to terminate this
Agreement at least thirty (30) days prior to the renewal date.
2. Duties. During the Term of Service, the Contractor shall:
a) carry out geological surveys, airborne magnetic surveys, ground
magnetic surveys and prospecting as well as evaluation of any and all results
from these activities;
b) hire any necessary personnel and rent all equipment needed to
carry out the prospecting and survey work;
c) supply the Company with monthly progress reports and maps showing
the location of any kimberlite xxxxx or kimberlite pipes, and the results of any
laboratory tests conducted on samples obtained by the Contractor;
d) Prepare and file all assessment documents required by the
Department of Natural Resources of Quebec as well as any reports required by the
Federal and Provincial governments in Canada;
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3. Independent Contractor. It is the express intention of the parties to
this agreement that the Contractor is an independent contractor and not an
agent, partner, joint venturer or employee of the Company. Both the Company and
the Contractor agree:
a) the Company will not be responsible for withholding taxes with
respect to the Contractor's compensation hereunder;
b) the Contractor shall have no claim against the Company hereunder
or otherwise for vacation/holiday pay, sick leave, retirement benefits, social
security, workers compensation, health or disability benefits, unemployment
insurance benefits, or fringe benefits of any kind;
c) the Contractor shall be responsible for the payments of all
Xxxxxxx'x Compensation Insurance Policies and all other insurance policies
required for the Contractor to conduct his Duties, as described in Section 3 of
this Agreement, and the Contractor shall provide a waiver of subrogation rights
against the Company; and
d) the Contractor acknowledges that the Contractor will be acting
independently of any direction and supervision by the Company or any of its
officers and agents.
4. Compensation.
a) The Company agrees to pay Xxxxx Xxxxxxxxx, the President of
Prospecting Geophysics Ltd. ("Xxxxxxxxx"), and Xxxxxxxxx agrees to accept
compensation at the rate of five hundred ($500) dollars per day.
b) The Company will further pay the Contractor's disbursements at
cost.
c) The Contractor will submit an itemized invoice to the Company, on
the first and fifteenth day of each month for services rendered. The invoice
will set forth the time worked and a description of the services provided and
the amounts disbursed by the Contractor in the performance of the Contractor's
duties. The Company will pay the Contractor the amounts due as indicated in the
invoice submitted by the Contractor within twenty (20) days of receipt.
5. Representations, Warrants and Covenants of the Contractor. The Contractor
represents, warrants and covenants to the Company as follows:
a) The Contractor has obtained and has in effect insurance in amounts
reasonably necessary to cover actions and/or injuries which may be foreseeable
in light of the services which the Contractor will perform for the Company;
b) The Contractor has the full right, power and legal capacity to
enter into this Agreement and the execution, delivery and performance of this
Agreement: (i) does not violate any
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agreement or undertaking to which the Contractor is a party or by which the
Contractor may be bound and (ii) the Contractor knows of no agreements or
contracts, whether written or oral, which would prevent him from entering into
this Agreement and to consummate the transactions contemplated hereby.
c) The Contractor has not entered into and is not subject to any
agreement, including, but not limited, to any employment, noncompete,
confidentiality or work product agreement which would (i) prohibit the execution
of this Agreement, (ii) prohibit the use of the Contractor's services by the
Company, or (iii) affect any of the provisions of, or his obligations pursuant
to, this Agreement.
d) If, during the Term of Services, any event known to the Contractor
shall occur which makes: (i) any provision of this Section 5 untrue or
misleading, the Contractor will immediately notify the Company pursuant to
Paragraph c of Section 7 of this Agreement.
6. Indemnification. The Contractor agrees to indemnify and hold the Company
harmless, from and against all claims, damages, losses and expenses, including
but not limited to attorney's fees and expenses, arising out of or resulting
from:
a) bodily injury, sickness, disease, or death, or to other injury or
illness including the loss of any income attributable to the action or inaction
of the Contractor to the extent caused in whole or in part by any negligent act
by the Contractor or anyone for whose acts the Contractor may be liable; or
b) any breach of a representation or warranty contained in section 5
of this Agreement.
7. Miscellaneous.
a) Headings. The headings contained in this Agreement are for
reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement.
b) Severability. If any provision which is contained in this
Agreement should, for any reason, be held to be invalid or unenforceable, such
invalidity or unenforceability shall not affect any other provision of this
Agreement.
c) Notices. All notices, hereunder shall be delivered personally or
sent by registered or certified mail, return receipt requested, overnight
delivery, or facsimile, to either party hereto at its address set forth in the
beginning of this Agreement.
d) Governing Law. This Agreement shall be governed by and construed
in accordance with the internal law of the State of New York.
e) Entire Agreement. The parties have not made any representations,
warranties or covenants with respect to the subject matter hereof which is not
set forth herein, and this Agreement constitutes
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the entire agreement between them with respect to the subject matter hereof. All
understandings and agreements heretofore had between the parties with respect to
the subject matter hereof are superseded by in this Agreement which alone fully
and completely expresses their agreement. This Agreement may not be changed,
modified, extended, terminated or discharged orally, but only by an Agreement in
writing, which is signed by all of the parties to this Agreement.
f) Binding Agreement. This Agreement shall be binding upon and inure
to the benefit of the parties hereto and their heirs, executors, administrators,
personal representatives, successors and assigns.
g) Waiver. Except as otherwise expressly provided herein, no waiver
of any covenant, condition, or provision of this Agreement shall be deemed to
have been made unless expressly in writing and signed by the party against whom
such waiver is charged; and (i) the failure of any party to insist in any one or
more cases upon the performance of any of the provisions, covenants or
conditions of this Agreement or to exercise any option herein contained shall
not be construed as a waiver or relinquishment for the future of any such
provisions, covenants or conditions, (ii) the acceptance of performance of
anything required by this Agreement to be performed with knowledge of the breach
or failure of a covenant, condition or provision hereof shall not be deemed a
waiver of such breach or failure, and (iii) no waiver by any party of one breach
by another party shall be construed as a waiver with respect to any other breach
of this Agreement.
h) Counterparts. This Agreement may be executed simultaneously in one
or more counterparts, each of which shall be deemed an original, but all of
which together shall constitute one and the same instrument.
i) Separate Counsel. The Contractor acknowledges having had separate
counsel of his own selection acting on his behalf in connection with the
negotiation, execution and consummation of this Agreement, and covenants that he
alone shall be liable and responsible for and shall not look to the Company in
connection with the fees and expenses of such separate counsel.
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IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement
as of the day and year first above written.
The Contractor:
PROSPECTING GEOPHYSICS
BY: /S/XXXXX XXXXXXXXX
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XXXXX XXXXXXXXX,
PRESIDENT
The Company:
DIAMOND DISCOVERIES
INTERNATIONAL CORP.
BY: /S/ XXXXXXXX X. XXXXXX
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XXXXXXXX X. XXXXXX,
CHAIRMAN AND CEO
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