CONSULTING CONTRACT
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THIS AGREEMENT is made as of the 1st day of February, 1999.
BETWEEN:
KATHLER HOLDINGS INC.
(the "Consultant")
OF THE FIRST PART
AND:
XXXXX XXXXXXX
(the "Principal")
OF THE SECOND PART
AND:
VIAVID BROADCASTING, INC.,
a Nevada corporation
(the "Company")
OF THE THIRD PART
WHEREAS:
A. The Company wishes to contract for the services of the
Consultant.
B. The Principal is an employee of the Consultant.
C. The Consultant has agreed to accept such contract for
services upon the terms and conditions of this Agreement.
NOW THEREFORE THIS AGREEMENT WITNESSES THAT in consideration of the
mutual covenants herein contained, the parties hereto agree as
follows:
1. ENGAGEMENT
1.1 Appointment: The Company hereby contracts for the
services of the Consultant and the Consultant hereby agrees with
the Company to perform services for the Company in accordance with
the terms and conditions of this Agreement. The
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Consultant agrees to provide the services of the Principal to provide
the services as contemplated in this Agreement and the Principal
agrees to perform such services as an employee of the Consultant.
The Consultant shall not use the services of any party other than the
Principal, whether as employee or contractor, to provide such services
without the prior written consent of the Company, which approval will
not be unreasonably withheld.
1.2 Scope of Duties: The Consultant will cause the Principal
to act as President of the Company and will have the following
responsibilities and duties to the Company to be provided as the
consultant services (the "Consultant Services"):
A. exercising general direction and supervision over the
business and financial affairs of the Company;
B. providing overall direction to the management of the
Company;
C. managing the day to day operations of the Company;
D. performing such other duties and observing such
instructions as may be reasonably assigned to him from
time to time by the Board of Directors; and
E. generally at all times abiding by all lawful directions
given to him by the Board of Directors of the Company.
1.3 Best Efforts: The Consultant shall at all times use
its best efforts to advance the interests of the Company, and shall
faithfully, industriously, and to the best of its abilities,
perform the responsibilities and duties described above.
1.4 Covenants and Restrictions: The Consultant covenants
and agrees with the Company that the Consultant will not engage in
any activities which would bring the Company's reputation into
disrepute.
1.5 Warranties and Representations: The Consultant and the
Principal warrant and represent to the Company as follows and
acknowledges that the Company is relying upon these warranties and
representations in entering into this Agreement:
(a) the Consultant and the Principal have the necessary
expertise to effectively provide the Consultant Services;
(b) the Consultant and the Principal are not aware of any
matter which would prevent the Consultant and/or the
Principal from carrying out their duties and obligations
pursuant to this Agreement;
(c) neither the Consultant nor the Principal is subject to
any review by any securities regulatory body.
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1.6 The Consultant and the Principal shall at all times be
independent contractors and shall not at any time be or be deemed
to be employees of the Company . The Consultant and the Principal
acknowledge that they are not employees of the Company and that the
execution of this Agreement shall not give rise to any employment
with of the Company.
2. TERM
2.1 Initial Term: The initial term of this Agreement shall
be one (1) year, commencing on the date of first written above,
subject to earlier termination as hereinafter provided.
2.2 Renewal: This Agreement shall be renewed for further
terms of such duration and upon such terms and conditions as the
Consultant and the Company may mutually agree upon in writing.
3. PAYMENT FOR THE CONSULTANT SERVICES
3.1 The Company shall pay to the Consultant a consultant fee
in consideration for the Consultant Services equal to the sum of
$5,000 CDN per month (the "Consultant Fee"), provided that the
Consultant Fee will be reviewed by the Consultant and the Company
after a period of six months from the date of this Agreement.
3.2 Federal Goods and Services Tax on the Consultant Fee
shall be payable by the Company in addition to the Consultant Fee.
3.3 The Consultant may be granted, subject to the
approval of the Company's shareholders and compliance with all
securities regulatory legislation, incentive stock options to
purchase shares in the Company in such amounts and at such times as
the Board of Directors of the Company, in their absolute
discretion, may from time to time determine.
3.4 The Consultant Fee shall be payable by the Company to the
Consultant on the last business day of each month during the term
of this Agreement.
3.6 The parties agree that the Consultant Fee provided for in
paragraph 3.1 hereof is intended to include reimbursement for all
expenses incurred by the Consultant in connection with its duties
hereunder save and except for expenses directly related to the
performance of the Consultant's duties as President of the Company
and the Consultant shall bear the cost of its own expenses, except
for any reasonable travel and promotional expenses and other
specific expenses incurred by the Consultant with the prior written
approval of the Company.
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4. CONFIDENTIALITY
4.1 Confidential Information and Non-Disclosure. The
Consultant and the Principal acknowledge and agree with each other
that all information connected with the Company's technology,
including without limitation, all computer software, trade secrets,
information, data, inventions, discoveries, improvements,
modifications, developments, technical manuals, or process-flow
manuals, data, customer information and pricing information is
confidential, and the Consultant and the Principal each jointly and
severally covenant and agree with the Company to use its best
efforts to ensure that such information does not become public
knowledge and undertakes not to disclose such information or any
part thereof to any other person except to its consultants and
employees as may be necessary to carry out its rights and
obligations under this Agreement. The Consultant hereby further
covenants and agrees with the Company that the Consultant shall
require each and every one of its employees or consultants who are
provided with any information in respect of the Company's
technology or related knowledge to sign confidentiality agreements
which shall be in a form acceptable to the Company. All such
information shall be returned to the Company upon termination of
this Agreement.
4.2 Non-Competition. Each of the Consultant and the
Principal shall not during the term of this Agreement and during
the period which is one year after the date of the termination of
this Agreement, either alone or in partnership or jointly or in
conjunction with any person or persons, including without
limitation, any individual, firm, association, syndicate, company,
corporation or other business enterprise, as principal, agent,
shareholder, or in any other manner whatsoever, carry on or be
engaged in or concerned with or interested in or advise, lend money
to, guarantee the debts or obligations of or permit their names to
be used or employed by any person or persons, including without
limitation, any individual, firm, association, syndicate, company,
corporation or other business enterprise, engaged in or concerned
with or interested in an operation or undertaking which is in any
way competitive with the business of the Company without having
obtained the express written consent of the Company . The
Consultant and the Principal acknowledge and agree the geographical
restrictions contained herein are reasonable in light of the nature
of the Company's technology and business. The Consultant and the
Principal further agree to not:
(a) carry on, be engaged in or concerned with or
interested in any business, operation or
undertaking which is in any way competitive
with the business of the Company anywhere in
Canada and in the United States were the
business of the Company is carried on; and
(b) attempt to solicit any suppliers, customers,
or employees of the business of the Company
away from the Company.
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4.3 Any and all inventions and improvements on which the
Consultant or the Principal may conceive or make, during the term
of this Agreement, relating, or in any way, pertaining to or
connected with any of the matters which have been, are or may
become the subject of the Company's investigations, or in which the
Company has been, is, or may become interested, shall be the sole
and exclusive property of the Company, and the Consultant will,
whenever requested by the Company, execute any and all
applications, assignments and other instruments which the Company
shall deem necessary in order to apply for and obtain letters of
patent for U.S. or foreign countries for the inventions or
improvements and in order to assign and convey to the Company the
sole and exclusive right, title and interest in and to the
inventions or improvements, all expenses in connection with them to
be borne by the Company. The Consultant's obligations to execute
the papers referred to in this paragraph shall continue beyond the
termination of this Agreement with respect to any and all
inventions or improvements conceived or made by him during the term
of this Agreement, and the obligations shall be binding on the
assigns, executors, administrators or other legal representatives
of the Consultant. All inventions and discoveries relating to the
business of the Company and all knowledge and information which the
Consultant may acquire during his engagement shall be held by the
Consultant in trust for the benefit of the Company.
5. TERMINATION
5.1 Termination by the Company for Cause: The Company may
terminate this Agreement at any time for just cause, provided that
a reasonable written notice of three business days has been first
given by the Company to the Consultant. In this Agreement, in
addition to any cause permitted by law, "just cause" with respect
to termination by the Company includes:
(a) the Consultant's or the Principal's material default,
misconduct, breach or non-observance of any provision of
this Agrement;
(b) the inability of the Consultant to provide the services
of the Principal to perform the Consultant Services;
(c) the attempted assignment of this Agreement by the
Consultant, in breach of this Agreement, or the sale of
any interest in the Consultant by the Principal or any
change in directors or officers of the Consultant;
(d) the dissolution, insolvency or the bankruptcy of the
Consultant or the Principal.
5.2 Termination by the Consultant: The Consultant may
terminate this Agreement for just cause at any time without notice
to the Company, or without just cause
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by providing 90 days' notice in writing to the Company. In this
Agreement, in addition to any cause permitted by law, "just cause"
with respect to termination by the Consultant includes:
(a) the Company's material default, misconduct, breach or
non-observance of any provision of this Agreement;
(b) the dissolution, insolvency or bankruptcy of the Company.
5.3 Termination by the Company without Cause. The Company
may terminate this Agreement at any time without cause, in which
event the Company will pay to the Consultant and the Principal, an
amount equal to four months of the Consultant Fee, plus any
Consultant Fee and expenses payable to the date of Termination.
5.4 Survival of Obligations. The obligations of the
Consultant and the Principal set forth in Sections 4.1, 4.2 and 4.3
of this Agreement will survive termination of this Agreement for
any reason.
6. OTHER PROVISIONS
6.1 Governing Law: This Agreement shall be governed by and
construed in accordance with the laws of the Province of British
Columbia.
6.2 Notice: Any notice required or permitted to be given
under this Agreement shall be in writing and may be delivered
personally or by telex or telecopier, or 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 either of such
parties. Any notice shall be deemed to have been received, if
personally delivered or by telex or telecopier, on the date of
delivery and, if mailed as aforesaid, then on the seventh business
day after and excluding the day of mailing.
6.3 Personal Nature: This Agreement is a contract for
services and may not be assigned in whole or in part by the
Consultant or the Principal.
6.4 Whole Agreement. This Agreement supersedes any previous
agreement, arrangement or understanding, whether written or oral
between the parties hereto and constitutes the entire agreement
between the parties and may only be amended in writing.
6.5 Severability. In the event that any provision of this
Agreement that is held to be unlawful or unenforceable, such
provision will be severable and the remaining terms and conditions
of this Agreement remain in force and effect.
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6.6 Time of Essence. Time is of the essence of this
Agreement.
IN WITNESS WHEREOF the parties have executed this Agreement as of
the day first above written.
SIGNED, SEALED AND DELIVERED
BY XXXXX XXXXXXX
in the presence of:
/s/Xxxxxx Xxxxxxx /s/ Xxxxx Xxxxxxx
__________________ ____________________
Signature XXXXX XXXXXXX
Xxxxxx Xxxxxxx
Name
000 X. Xxxxxxx Xx.
Address
N. Van. BC
KATHLER HOLDINGS INC.
by its authorized signatory:
/s/ Xxxxx Xxxxxxx
________________________________
Authorized Signatory
VIAVID BROADCASTING, INC.
by its authorized signatory:
/s/ Xxxx Xxxxxxx
________________________________
Director
