CONSULTING AGREEMENT
(the "Agreement")
This Agreement dated for reference the 1st day of June 2005, by and between:
EYI Industries, Inc.
0000 Xxxxxxx Xxxxxx
Xxxxxxx, XX X0X 0X0
Tel: 000-000-0000 Fax: 000-000-0000
("EYI")
AND:
Xxxxx Xxxx
Suite 2006 00000 Xxxx Xxxxxxx Xxxx Xxxx
Xxxxxx, X.X. X0X 0X0
Tel: 000-000-0000
(the "Consultant").
WHEREAS:
A. EYI, through its subsidiaries Essentially Yours Industries Inc. and
Essentially Yours (Canada) Inc., is in the business of marketing dietary
supplements and personal care products including the Metals and Arsenic
Removal Technology Products ("XXXXX") water filters;
B. EYI desires to secure the services of the Consultant to market and
distribute EYI's products in China, Hong Kong, Taiwan, Korea, Japan,
Malaysia, Singapore, Thailand, Philippines, Vietnam, Cambodia, Indonesia
and India;
C. The Consultant has the necessary experience to assist EYI in marketing and
distributing its products in the foregoing Countries;
D. The Consultant acknowledges that EYI's business and the reputation upon
which it is based is of substantial value and must be protected; and
E. The parties intend this Agreement to set forth their respective rights and
obligations with respect to the engagement of the Consultant by EYI.
NOW THEREFORE in consideration of the mutual covenants herein contained, the
parties hereto agree as follows:
1. TERM
1.1. Term. This Agreement shall commence from the date first written above and
shall continue thereafter indefinitely, unless terminated in accordance with the
terms set out herein.
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1.2. Automatic Termination. This Agreement shall terminate, without further
notice upon:
(a) the death of the Consultant;
(b) the winding up or bankruptcy of Consultant;
(c) the Consultant being found guilty of fraud or other serious criminal
offense or being declared mentally incompetent; or
(d) the agreement of the parties to so do.
1.3. Termination by EYI Without Notice. EYI may terminate the engagement of the
Consultant without notice if the Consultant:
(a) is dishonest in dealing with EYI;
(b) conducts himself or herself in a manner which is materially
detrimental to the business of EYI;
(c) fails to carry out the services and duties to be performed by it
pursuant to the provisions of this Agreement;
(d) is in breach of section 4 of this Agreement;
(e) fails to account for any monies which come into the Consultant's
possession as a result of the Consultant's activities as a
consultant to EYI;
(f) fails to act in the best interests of EYI and its shareholders at
all material times during the term of this Agreement.
1.4. Termination with Notice. Notwithstanding the foregoing either party may
terminate this Agreement without reason, upon thirty (30) days prior written
notice.
2. REMUNERATION
2.1. Remuneration. In consideration for providing services during the term of
this Agreement, EYI shall issue five hundred thousand (500,000) stock options
(the "Options") to the Consultant, with each Option entitling the Consultant to
purchase one common share of EYI at a price of $0.10 per share. The Options
shall expire on June 1, 2007 and 50% of the Options shall vest on October 1,
2005 and the remaining 50% on August 1, 2006. The Consultant agrees to enter
into an option agreement with EYI in a form acceptable to EYI.
2.2. Taxes. The Consultant shall be responsible for payment of all local and
federal taxes in regard to all remuneration paid to the Consultant and
Consultant hereby indemnifies and saves harmless EYI from all claims in this
regard.
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2.3. Reimbursement of Business Expenses. EYI shall reimburse the Consultant for
all pre-authorized expenses reasonably and properly incurred in connection with
the performance by the Consultant of its duties under this Agreement.
3. CONFIDENTIALITY
3.1 Non-disclosure: The Consultant will not, either during the term of this
Agreement or at any time thereafter, disclose the terms of this Agreement to any
person, other than their respective professional advisors.
3.2 Fiduciary Duties: The Consultant hereby acknowledges and agrees that as a
result of the sensitive nature of the information to be learned by or disclosed
to the Consultant, it stands in a fiduciary relationship with EYI and the
Consultant agrees to act accordingly.
3.3 Confidential Information. In this Agreement, "Confidential Information"
means all confidential or proprietary information, intellectual property
(including trade secrets and technology), customer or client lists, which in any
way and at any time have been communicated to, acquired by, or learned by the
Consultant in the course of or as a direct or indirect result of the
Consultant's contract with EYI, including:
(a) computer software, including, but not limited to, source and abject
codes, flowcharts, algorithms, record layouts, routines, report
formats, data, compilers, assemblers, design concepts and related
documentation, manuals, and other materials whether in human or
machine readable form;
(b) Discoveries, inventions, copyrights, concepts and ideas, whether
patentable or not, and including, without limitation, the nature and
result of research, development, manufacturing, marketing, planning
and any other business activities;
(c) Product specifications, designs, manufacturing processes and
methods, production machinery, quality assurance methods, accounting
systems, know-how and any other proprietary information of any kind
whatsoever;
(d) EYI's list of customers, vendors and business associates together
with details of EYI's methods of carrying out business; and
(e) all data and information acquired or developed by the Consulant
during the course of work for EYI, including systems and programs
proposed for development, reports or tests and consultations, EYI's
pricing policies, strategies, forecasts and the terms of any
customer or business contract.
3.4 Confidentiality Maintained. The Consultant covenants and agrees with EYI
during the term of this Agreement and at all times after the termination of this
Agreement to:
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(a) keep all Confidential Information in the strictest confidence;
(b) treat all Confidential Information with at least the same level of
protection as the consultant gives its own confidential information
of similar nature, but no less than a reasonable level of
protection.
(c) promptly notify EYI if the Consultant becomes aware of any
unauthorized disclosure or use of the Confidential Information
(d) hold all Confidential Information in trust for EYI; and
(e) not to directly, indirectly or in any other manner:
(i) publish or in any way participate or assist in the publishing
of any Confidential Information;
(ii) utilize any Confidential Information, except as may be
required for and in the course of the business of EYI; and
(iii) disclose or assist in the disclosure of any Confidential
Information to any person, firm or corporation.
3.5 Exemptions from Confidentiality. The provisions of section 3.4 shall not
apply to any Confidential Information which:
(a) EYI expressly permits the disclosure of, provided that the
disclosure is made in compliance with any conditions imposed in
connection with the permission of such disclosure;
(b) is available to the public or is in the public domain;
(c) subsequently becomes part of the public domain through no fault of
the Consultant; or
(d) the Consultant had knowledge of on the date of this Agreement and
which was not previously acquired from EYI or from any party having
an obligation of confidence with EYI.
3.6 Indemnification. The Consultant acknowledges that the Confidential
Information is the property of and is of economic value to EYI and that
disclosure of Confidential Information to competitors of EYI or to the general
public would be detrimental to EYI and its shareholders (whether directly or
indirectly as a result of detriment to the clients or customers of EYI).
Accordingly, the Consultant agrees to indemnify and hold EYI harmless from any
loss or damage occasioned by the disclosure or use of the Confidential
Information by the Consultant contrary to the terms hereof.
3.7 Return of the Confidential Information. All Confidential Information and all
memoranda, notes, lists, records and other documents (and all copies thereof),
including, without limitation, all such items stored in computer memories,
microfiche, on discs or on tapes or by any other means, made or compiled by or
on behalf of the Consultant or made available to the Consultant concerning the
business or affairs of EYI are and shall be the property of EYI and shall be
delivered to EYI by the Consultant promptly upon the termination of this
Agreement or at any other time on the request of EYI.
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3.8 Remedies. The Consultant acknowledges that any breach of section 3 of this
Agreement will cause irreparable harm to EYI and its shareholders which cannot
be calculated or fully or adequately compensated by recovery of damages alone.
Accordingly, the Consultant agrees that EYI shall be entitled to interim and
permanent injunctive relief, specific performance and other equitable remedies,
in addition to any other relief to which EYI may become entitled. Furthermore,
the Consultant shall be liable for liquidated damages for any breach of section
3 of this Agreement, without restricting any other claims or remedies that may
be available at law or equity against the Consultant.
4. EYI OWNS INTELLECTUAL PROPERTY
4.1 Definition of Intellectual Property. In this section 4, "IP Rights" means:
(a) all discoveries, concepts, inventions or improvements, whether
patentable or not, made, discovered, conceived, invented or improved by
the Consultant in the course of the Consultant's engagement with EYI,
whether before or after the date of this Agreement;
(b) any software, programming techniques, system design, ideas, plans,
concepts, copyrightable materials, copyrights, trademarks and any other
intellectual property conceived or created by the Consultant in the course
of the Consultant's engagement with EYI, whether before or after the date
of this Agreement;
(c) any process, formula, plan, skill, method of advertising, marketing,
research, development, engineering, equipment, device, software or method
of doing business developed or being developed, made, used, sold or
installed by or made known to the Consultant in the course of the
Consultant's engagement with EYI, whether before or after the date of this
Agreement; or
(d) anything resulting from or suggested by any work which the Consultant
may do for EYI or its affiliates at the request of EYI or its affiliates
and relating to any business carried on or proposed to be carried on by
EYI or its affiliates in the course of the Consultant's engagement with
EYI, whether before or after the date of this Agreement;
4.2 All Intellectual Property Belongs to EYI. The Consultant covenants and
agrees with EYI that it will fully and freely (and without expense to EYI)
communicate to EYI, and the Consultant hereby assigns to EYI all IP Rights to
EYI.
4.3 Protection of IP Rights. The Consultant further agrees that it will, at all
times (both during the term of this Agreement and at all times thereafter)
assist EYI, its affiliates or their respective assignees or their nominees in
every way to protect the rights of EYI and its affiliates under this section 4
and to vest in EYI or its assignees the entire right, title and interest,
including, without limitation, the copyright, in and to any and all of the IP
Rights and that it will not disclose to any person, firm or company or use any
such IP Rights for its own purposes or for any purposes other than those of EYI
and its affiliates.
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4.4 Existing IP Rights. The Consultant hereby represents and warrants to EYI
that it does not currently have any IP Rights that have not been assigned to EYI
or its affiliates and, to the extent that such representation and warranty is
incorrect in any way, the Consultant hereby sells, assigns and transfers to EYI
any and all IP Rights which the Consultant currently has.
4.5 Moral Rights. The Consultant waives all moral rights it may acquire during
the course of engagement with EYI.
4.6 Return of Documents. The Consultant shall return to EYI any documents,
software, manuals, reports, charts, equipment or any other materials used in
connection with the Consultant's engagement hereunder forthwith after any
written request for return thereof is received from EYI and the Consultant shall
not retain any copies.
5. GENERAL PROVISIONS
5.1 Relationship of Parties: The relationship between the Consultant and EYI
shall be that of independent contractor.
5.2 Governing Law: This Agreement will be governed by and construed in
accordance with the laws of the Province of British Columbia, and the parties
agree that all disputes arising hereunder will be referred to and settled by the
courts of the Province of British Columbia.
5.3 Notice: Any notice required to be given under this Agreement will be in
writing and may be delivered personally or sent by prepaid registered post
addressed to the parties at the above mentioned addresses or at such other
address of which notice may be given by such party. Any notice will be deemed to
have been received on the date of delivery, if personally delivered, and if
mailed as aforesaid then on the third business day following the day of mailing.
5.4 Entire Agreement: This Agreement contains the entire agreement among the
parties pertaining to the subject matter hereof, and supersedes and replaces all
previous written and oral agreements among the parties with respect to the
subject matter hereof.
5.5 Severability: If any provision of this Agreement is held to be
unenforceable, the remaining provisions of this Agreement will be deemed to be
valid and enforceable.
5.6 Enurement: This Agreement will enure to the benefit of and be binding upon
the parties and their respective personal representatives, successors and
assigns.
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5.7 Assignment: The Consultant shall not assign the benefits or obligations
arising from the Agreement without the written consent of EYI.
5.8 Survival of Obligations: The provisions of sections 3 and 4 herein will
survive the termination of this Agreement, for any reason.
5.9 Waiver and Consent: No consent or waiver, express or implied, by any party
of any breach or default by any other party of any or all of its obligations
under this Agreement will:
(a) be valid unless it is in writing and stated to be a consent or waiver
pursuant to this section;
(b) be relied upon as a consent or waiver to or of any other breach or
default of the same or any other obligation;
(c) constitute a general waiver under this Agreement; or
(d) eliminate or modify the need for a specific consent or waiver pursuant
to this section in any other subsequent instance.
5.10 Amendment: No amendment of the Agreement nor waiver of any of the terms and
provisions hereof will be valid unless effected by a written amendment signed by
both parties.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement effective as
of the date first above written.
EYI Industries, Inc. Consultant
Per: /s/ Xxx Xxxxxxxx /s/ Xxxxx Xxxx
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Name: Xxx Xxxxxxxx Name: Xxxxx Xxxx
Title: President/CEO
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