AMENDMENT TO
CONSULTING SERVICES AGREEMENT
THIS CONSULTING SERVICES AGREEMENT is made as of the 2nd day of January, 2003
BETWEEN:
SUNGOLD ENTERTAINMENT CORP., a company duly incorporated under the laws of
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the Province of British Columbia, and having its registered and records
office at Suite 000 - 000 Xxxxxxx Xxxxxx, Xxxxxxxxx, X.X., X0X 0X0,
(hereinafter called the "Company")
OF THE FIRST PART
AND
XXXX XXXXXXX, having an address at 1504, 0000 Xxxxxxx Xxxxxx, Xxxxxxxxx,
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XX X0X 0X0
(hereinafter called the "Consultant"),
OF THE SECOND PART
WHEREAS:
The Consultant and the Company entered into a Consulting Agreement made as of
July 1st, 1998 and Amended April 11, 2000 (the "Agreement");
The Company is a reporting company whose shares trade on the OTC Bulletin Board
in the U.S.A. and is engaged, inter alia, in the business of developing
entertainment and e-commerce business in Canada, USA and internationally; (the
"Business"); the Consultant has experience in the Business; the Company desires
to secure the hereinafter described Services of the Consultant; and, the
Consultant has agreed to provide its Services to the Company in accordance with
the terms and conditions herein set forth;
NOW THEREFORE, THIS AGREEMENT WITNESSETH that in consideration of the respective
covenants and agreements hereinafter contained and the sum of One Dollar now
paid by the Company to the Consultant (the receipt and sufficiency of which is
hereby acknowledged by the Consultant), the parties hereto agree as follows:
1. Contract for Services. The Company hereby engages the Consultant to
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provide office administration, clerical and shareholder communications services
specified in Schedule "A" hereto together with such other consulting services as
the Company requests from time to time (the "Services") and the Consultant
hereby accepts such engagement and agrees to perform the Services on the
following terms and conditions.
2. Responsibilities of Company. The Company will:
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(a) Make available to the Consultant, information or data that the CEO /
President considers pertinent to the Services to be provided by the
Consultant in connection with the Company's Business;
(b) Pay in full when due, all amounts payable to the Consultant;
(c) Arrange and make provision for the Consultant's access to records and
other information, and to physical premises, as may be reasonably
necessary, in the opinion of the CEO/President, to enable the
Consultant to perform the Services; and
(d) Make such management personnel of the Company available to the
Consultant as may reasonably necessary, in the opinion of the
CEO/President, be required for the Consultant to perform its
consulting Services; and
(e) During the period of her engagement with the Company, the Consultant
shall be entitled each year to twenty (20) days paid vacation by the
Company.
3. Term. Subject to the provisions hereof the term of this Agreement shall
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be twenty-four (24) months commencing January 2, 2003 to January 1, 2005.
4. Character and Extent of Services to be Provided. It is the mutual intent
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of the parties that the Consultant shall act strictly in a professional
consulting capacity as an independent contractor for all purposes and in all
situations and shall not be considered an employee of the Company.
5. Source Deductions. The Company shall have no obligation to and shall not
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make any source deductions with respect to the Consultant. The Consultant shall
make all source deductions, if any, required to be made in respect of the
Consultant in respect of income tax, Canada Pension Plan, Unemployment
Insurance, Workers Compensation and all other required remittances and
deductions, and remit same as and when required and shall indemnify and hold
harmless the Company and each of its officers, directors and employees from any
liability in respect thereof.
6. Reporting. The Consultant shall report to the CEO/President of the
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Company exclusively.
7. Time and Place of Consulting Services. The Consultant will attend at the
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premises of the Company or such other place as the CEO/President may reasonably
require.
8. Compensation and Expenses. The Company shall pay and the Consultant
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agrees to accept as compensation for the Services to be rendered hereunder a fee
of, without duplication: $5,000. USD per month together with GST thereon. The
Consultant shall invoice the Company monthly in respect of the expenses and be
reimbursed for expenses approved by the CEO/President.
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9. Performance Criteria. The Services shall be provided: (i) where specific
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written performance criteria have been agreed to by the CEO/President in respect
of the Services or any one or more aspects thereof, the Services shall be
provided in accordance with such written specific performance criteria; (ii) in
the absence of such written specific performance criteria the Services shall be
provided to the satisfaction of the Company's CEO/President.
10. Consultant's Qualifications. The Consultant represents and warrants
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that the Consultant is qualified to provide the Services contemplated in
Schedule "A" and that the Consultant has the necessary qualifications and
expertise to perform and provide the Services required hereunder in a
professional manner, in compliance with the highest ethical standards and all
applicable laws and regulations. The Consultant covenants and agrees to provide
the Services in a diligent, careful, skilful and efficient manner in keeping
with the commercial standards of the Consultant's industry.
11. Termination. Either the Company or the Consultant may terminate this
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Agreement at any time by giving ninety (90) days written notice to the other
provided that upon such termination becoming effective the Company shall pay in
full to the Consultant the amount of fees, commission and bonuses then due and
payable to the Consultant within ninety (90) days of receipt of the Consultant's
final invoice.
12. Termination for Cause. Notwithstanding anything herein contained the
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Company may terminate this Agreement without prior notice for just cause which
shall include but not be limited to:
(a) failure by the Consultant to comply with any of the provisions
hereunder including, without limitation, failure, refusal or neglect
by the Consultant to perform or provide any aspect of the Services
within the time permitted for its provision or performance as
determined pursuant to the terms of this Agreement and upon the
Consultant being notified in writing by the CEO/President alleging
such failure and failing to remedy such failure within fifteen (15)
days of receiving such notice;
(b) the Consultant or any of his/her employees committing an act of fraud
or dishonest or serious misconduct, or any act detrimental to the
reputation of the Company in circumstances that would, in the
reasonable opinion of the Company's Representative make the Consultant
unsuitable to continue to act on behalf of the Company; or
(c) the Consultant committing an act of bankruptcy or making a general
assignment for the benefit of its creditors or otherwise taking
advantage of laws relating to insolvency or creditors' rights
including the appointment of a receiver over the assets of the
Consultant.
13. Duty of Loyalty - No Conflict of Interest. The Consultant hereby agrees
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to avoid any circumstances or actions which might arguably place the Consultant
in a position of divided
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loyalty regarding her obligations to the Company. The Consultant will not,
utilize for her own benefit or that of a third party any information or
potential business opportunities she may learn of as a result of the provision
of the Services to the Company, without having first obtained the written
consent of the Company.
14. Confidentiality.
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14.1 The Services to be provided by the Consultant hereunder are sensitive
in nature. The Consultant shall keep in the strictest confidence all
information regarding this Agreement and all information it may acquire in
respect of the Company, as well as the nature and results of the Services the
Consultant is to perform. During the course of this Agreement the Consultant
may also be given access to confidential or proprietary information of the
Company or another party with whom the Company may have signed a non-disclosure
agreement. Without the prior written consent of the Company the Consultant
shall not disclose or use any such information.
14.2 The scope of this obligation includes any Company proprietary
information which is labelled or otherwise identified to the Consultant or
his/her employees as confidential. It also includes any information regarding
the purpose or details of the Consultant's arrangement with the Company, the
strategic or other business plans of the Company, proprietary information which
is furnished to the Company by another under a non-disclosure agreement, and any
evaluations, discussions or transactions involving another party in which the
Consultant may be involved under this Agreement and whether pertaining to the
Company or otherwise (the "Confidential Information").
14.3 The Consultant will exercise due diligence to maintain in confidence
any Confidential Information which is disclosed to him/her. As used here the
term "due diligence" means the same precaution and standard of care which the
Consultant would use to safeguard its own proprietary information, but in no
event less than reasonable care.
14.4 The Consultant may not reproduce, distribute or disclose any
Confidential Information to others or use it for any commercial purpose outside
this Agreement without first obtaining the written permission of the Company.
The Consultant will ensure that any employee who is given access to the
Confidential Information signs an appropriate agreement in the form and content
provided by the Company from time to time requiring her to hold that information
in confidence and to use it only in the course of the Company's Business.
14.5 This section does not impose any obligation on the Consultant if the
information is:
(a) publicly known at the time of disclosure;
(b) furnished by the Company to others without restrictions on its use or
disclosure;
(c) legally required to be disclosed by a regulatory or legal authority;
or
15. Title to Documents and Work Product. All draft and final reports,
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notes, memoranda, budgets, plans, projections, records, documents, data bases,
lists of contacts, leads or other
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information which the Consultant furnishes to the Company under this Agreement
will become the sole property of the Company and the Consultant shall deliver
all such items to the CEO/President at the end of the Term or earlier
termination of this Agreement and before receipt of final payment hereunder and
all reports and database materials will be provided both as hard copy and on
disk. The Company shall own all right and title to all ideas, materials or
programs.
16. Assignment and Sub-contracting. The Consultant may not assign or
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sub-contract this Agreement or any portion of it to another without the express
written consent of the Company since the Company is relying on the special
expertise of the Consultant to properly provide the Services.
17. Provisions which Operating Following Termination. Notwithstanding any
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termination of this Agreement for any reason whatsoever and with or without
cause the provisions of sections 13, 14 and 15 any other provisions of this
Agreement necessary to give effect thereto shall continue in full force and
effect following any such termination.
18. Independent Contractor. This Agreement creates only an independent
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contractor relationship between the Company and the Consultant. The Consultant
shall not hold herself out to be a partner, or agent for the Company. The
Consultant shall not create any obligations or responsibilities on behalf of the
Company or in the name of the Company or purport to do so, or represent itself
or herself to be authorized to do so, without the prior written consent of the
Company's Representative. The Consultant shall not have authority to act or to
bind the Company in any way or to represent the Company as responsible for the
actions of the Consultant in any way. Neither the Consultant nor any employee
of the Consultant will be deemed to be an employee of the Company or entitled to
any of the benefits provided by the Company to its employees. The Consultant
only will be responsible for the acts of the Consultant.
19. General. The Consultant has been asked to seek independent legal advice
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before signing this Agreement. This Agreement and the obligations of the
parties shall be binding upon the parties and their heirs, executors, successors
and permitted assigns. Save and except for the express provisions of this
Agreement, any and all previous agreements, written or oral, between the parties
hereto or on their behalf relating to the employment of the Consultant by the
Company are hereby terminated and canceled. The Consultant may not assign this
Agreement without the prior written agreement of the Company. This Agreement and
the instruments and schedules referred to herein constitute the entire agreement
between the parties with respect to the subject matter of the agreement and
supercede all prior agreements, undertakings negotiations and discussions,
whether oral or written, between the parties and there are no warranties,
conditions, representations or other agreements between the parties in
connection with the subject matter of this Agreement, except as specifically set
forth herein. No modification of this Agreement shall be valid unless made in
writing and signed by the parties hereto. British Columbia law governs this
Agreement. Notices under this Agreement must be sent by personal delivery,
facsimile or registered mail to the appropriate party at its address stated on
the first page of this Agreement or to a new address if the other has been
properly notified of the change. Such notice shall be deemed to be delivered,
if by personal delivery when delivered; if by facsimile when the transmitting
machine produces a report confirming the
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successful transmission; and if delivered by registered mail on the third day
following such mailing. The headings in this Agreement are inserted for
convenience only and shall not affect the interpretation hereof. If any covenant
or provision herein is determined to be void or unenforceable in whole or in
part, it shall not be deemed to affect or impair the validity of any other
covenant or provision and the foregoing clauses are declared to be separate and
distinct covenants. The parties shall deliver to each other further
documentation and shall perform such further acts as and when the same may be
required to carry out and give effect to the terms and intent of this Agreement.
No waiver or consent by a party of or to any breach or default by any other
party shall be effective unless evidenced in writing, executed and delivered by
the party so waiving or consenting and no waiver or consent effectively given as
aforesaid shall operate as a waiver of or consent to any further or other breach
or default in relation to the same or any other provision of this Agreement.
Time is of the essence of this Agreement and of its performance.
20. Counterparts. This Agreement may be executed in counterparts and by
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facsimile each of which shall represent a signed original copy of this Agreement
and all of which together shall constitute one and the same Agreement.
IN WITNESS WHEREOF the parties have executed this Agreement as of the day and
year first above written.
SUNGOLD ENTERTAINMENT CORP.
Per:
/s/ Xxx X. Xxxx
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Xxx X. Xxxx - President & CEO
SIGNED, SEALED AND DELIVERED ) c/s
in the presence of: )
)
)
/s/ Xxxxxx Xxxxxxx )
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Name XXXXXX XXXXXXX ) /s/ Xxxx Xxxxxxx
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) XXXX XXXXXXX
000 Xxxx Xx. 000 Xxxxxxx )
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Address Vancouver )
)
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Occupation )
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SCHEDULE "A"
DESCRIPTION OF CONSULTING SERVICES
The Consultant has the necessary professional skills to perform the regulatory
reporting, shareholder communications, office administration and management to
the Company.
1. The Company shall retain the services of the Consultant at a wage of
$5,000 USD per month, commencing January 2, 2003, for such length of time as
shall be mutually agreed upon.
3. During the period of her engagement with the Company, the Consultant
shall devote her entire time and best efforts to such duties as may be assigned
to her by the CEO/President, and will faithfully and diligently serve and
endeavor to further the interests of the Company.
4. The Consultant shall hold in strict confidence and shall not make use
of, except for the benefit of the Company, all information about the Company's
affairs and properties.
5. Unless the Company provides the Consultant with written directions to
the contrary, the covenant of the Consultant set out in paragraph 4 hereof shall
remain in effect both while the Consultant is engaged by the Company and for a
period of twenty-four (24) months after the term of the consultancy has ended.
6. The Consultant shall act and be retained by the Company to be
responsible for supervision, direction, control and operation of the Company's
administrative office and will have the obligation, duties, authority and power
to:
(a) do all acts and things as are customarily done by persons employed as an
office administrator in corporations of similar size to the Company and will
include all matters which may reasonably be considered the responsibility of
persons holding the position of office administrator in corporations of similar
size to the Company; and
(b) provide administrative services to the Company, such services to include
but not be limited to the following:
(i) ensuring timely regulatory reporting under direction of the
CEO/President as required by all appropriate regulatory
authorities;
(iii) co-establishment and maintenance of suitable banking relations
with the CEO/President;
(iv) maintenance of proper accounting records and compilation of
financial information as may be required from time to time;
(v) report directly to the CEO/President concerning matters
pertaining to fiscal policies, administration and management of
the Company.
