EXHIBIT 10.4
CONSULTING CONTRACT
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THIS AGREEMENT is made as of the 31st day of March, 2004.
BETWEEN:
XXXXXX XXXXX
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(the "Consultant")
OF THE FIRST PART
AND:
VIAVID BROADCASTING, INC.,
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a Nevada corporation
OF THE SECOND PART
WHEREAS:
A. The Company wishes to contract for the services of the
Consultant.
B. 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
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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.
1.2 SCOPE OF DUTIES. The Consultant will act as a director 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
marketing and development of the business of the Company;
B. providing direction to the management of the Company;
C. assisting with 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 warrants and
represents 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 has the necessary expertise to effectively
provide the Consultant Services;
(b) the Consultant is not aware of any matter which would prevent
the Consultant from carrying out his duties and obligations
pursuant to this Agreement.
(c) the Consultant is not subject to any review by any securities
regulatory body.
1.6 INDEPENDENT CONTRACTS. The Consultant shall at all times be an
independent contractor and shall not at any time be or be deemed to be an
employee of the Company. The Consultant acknowledges that he is not an employee
of the Company and that the execution of this Agreement shall not give rise to
any employment with the Company.
2. TERM
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2.1 INITIAL TERM. The initial term of this Agreement shall be one
(1) year, commencing on the date first above written, 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
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3.1 The Company shall pay to the Consultant a consultant fee in
consideration for the Consultant Services equal to the sum of $10,000 CDN. per
month (the "Consultant Fee").
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
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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.
3.5 The parties agree that the Consultant Fee provided for in
paragraph 3.1 hereof is intended to include reimbursements 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 director 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.
4. CONFIDENTIALITY
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4. CONFIDENTIAL INFORMATION AND NON-DISCLOSURE. The Consultant
acknowledges and agrees 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 jointly
and severally covenants and agrees 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. The Consultant 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 acknowledges and agrees that the geographical restrictions contained
herein are reasonable in light of the nature of the Company's technology and
business. The Consultant further agrees 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
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business of the Company anywhere in Canada and in the United
States where 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.
4.3 Any and all inventions and improvements on which the
Consultant 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 an 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
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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 material default, misconduct, breach or
non-observance of any provision of this Agreement;
(b) the inability of the Consultant to perform the Consultant
Services;
(c) the attempted assignment of this Agreement by the Consultant,
in breach of this Agreement;
(d) the dissolution, insolvency or the bankruptcy of the
Consultant.
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 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;
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(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, an amount equal to thirty six 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
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
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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.
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.
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 and
year first above written.
SIGNED, SEALED AND DELIVERED
BY XXXXXX XXXXX
In the presence of:
-------------------------------- /s/ Xxxxxx Xxxxx
Signature XXXXXX XXXXX
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Name
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Address
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VIAVID BROADCASTING, INC.
By its authorized signatory:
/s/ Xxxxx Xxxxxxx
XXXXX XXXXXXX,
President
