EXHIBIT 10.2
CONSULTING CONTRACT
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THIS AGREEMENT is made as of the 31st day of March, 2004.
BETWEEN:
KATHLER HOLDINGS INC.
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(the "Consultant")
OF THE FIRST PART
AND:
XXXXX XXXXXXX
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(the "Principal")
OF THE SECOND PART
AND:
VIAVID BROADCASTING, INC.,
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a Nevada corporation
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
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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. The 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 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 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.
1.6 INDEPENDENT CONTRACTS. 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 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.
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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 $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 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
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.
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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 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 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 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:
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(a) the Consultant's or the Principal's material default,
misconduct, breach or non-observance of any provision of this
Agreement;
(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 of
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 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 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
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
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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 or the Principal.
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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 XXXXX XXXXXXX
In the presence of:
----------------------------------- /s/ Xxxxx Xxxxxxx
Signature XXXXX XXXXXXX
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Name
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Address
KATHLER HOLDINGS INC.
by its authorized signatory:
/s/ Xxxxx Xxxxxxx
Authorized Signatory
VIAVID BROADCASTING, INC.
By its authorized signatory:
/s/ Xxxx Xxxxxxx
Xxxx Xxxxxxx
Secretary/Treasurer
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