1
EXHIBIT 3(a)(2)
CONSULTING AGREEMENT DATED SEPTEMBER 24, 1997
BY AND BETWEEN LASERMEDIA INC. AND ALUDRA SOFTWARE INC.
3(a)(2)-1
2
CONSULTING AGREEMENT
THIS AGREEMENT made in duplicate this 24th day of September, 1997
between Aludra Software Inc. (the "CONSULTANT") and LaserMedia Inc. (the
"CLIENT").
In consideration that the Consultant and the Client hereby covenant
and agree, each with the other, as follows:
1. SERVICES RETAINED.
1.1 DESCRIPTION. The Client retains the professional
services of the Consultant to perform certain tasks, to be determined
from time to time, in connection with the development of computer
software products
1.2 MODIFICATIONS. Any modifications to the present
agreement and its effect on the fees and other terms and conditions
shall be described in Schedule 'A" hereto which shall form part of the
present agreement. Any modification shall be approved in writing by
the Client prior to its inception and execution.
2. INDEPENDENT CONTRACTOR.
2.1 Nothing contained in this agreement and the
relationship created between the parties hereby shall, directly or
indirectly, constitute the Consultant as agent or servant of the
Client and further, nothing herein shall operate or be construed to
relieve the Consultant of any duties or obligations imposed upon it as
an independent contractor.
2.2 Furthermore, the Consultant hereby agrees that any
authorized representative of the Client shall at all reasonable times
have access to the plan and premises where the work being performed
under this agreement is located and may make any tests or inspection
of all working papers, materials and other work-in-progress as the
authorized representative shall see fit to perform.
3. FEES AND EXPENSES. Consultant services will be invoiced on a
monthly basis to the Client and payable the Client upon receipt of the invoice.
Expenses and costs incurred by the Consultant in the execution of this
agreement shall be preauthorized by the Client, invoiced at cost and supported
by the usual documentation.
4. PERSONNEL. The Consultant shall execute this agreement on a
best effort basis. The Consultant shall provide the services of qualified
personnel of its choice. The Consultant retains the right to appoint and to
replace such personnel at the Consultant's discretion.
3(a)(2)-2
3
7. SECURITY. The Consultant agrees that its personnel, when
using the Client's premises, will comply with all security regulations in force
at those premises.
8. PROFESSIONAL RESPONSIBILITY. The parties agree that the
professional responsibility of the Consultant under this agreement shall be
limited to direct and actual money damages effectively incurred by the Client;
the liability of the Consultant hereunder shall not in the aggregate exceed the
total fees paid to the Consultant for services rendered under this agreement,
regardless of the number of claims.
In no event shall the Consultant be liable for special, direct or
consequential damages or both, even if the Consultant has been notified of the
possibility of these damages being incurred. The Client waives any claim and
recourse against the Consultant in these instances.
The Client further agrees that the Consultant will not be liable for
any loss of profits nor for any claim against the Client made by any third
party. The Client waives any claim and recourse against the Consultant in
these instances.
9. ENTIRE AGREEMENT. This Agreement constitutes the entire
agreement between the parties with respect to all matters herein contained, and
its execution has not been induced by, nor do any of the parties hereto rely
upon or regard as material, any representations or writings whatsoever not
incorporated herein and made a part hereof. This Agreement shall not be
amended, altered or qualified except by an instrument in writing, signed by all
the parties hereto and any amendments, alterations or qualifications hereof
shall not be binding upon or affect the rights of any party who has not given
its consent in writing.
10. HEADINGS. The division of this Agreement into sections and
the use of headings are for convenience of reference only and shall not affect
the interpretation or construction of this Agreement.
11. SEVERABILITY. In the event that any of the provisions herein
contained shall be held unenforceable or declared invalid for any reason
whatsoever, such enforceability or invalidity shall not affect the
enforceability or validity of the remaining provisions of this Agreement and
such unenforceable or invalid portion shall be severable from the remainder of
the Agreement.
12. GOVERNING LAW. This Agreement shall be governed by and
construed in accordance with the laws of the Province of Ontario and the laws
of Canada in force therein and any court of competent jurisdiction in Ontario
shall have jurisdiction to adjudicate any matter arising out of this Agreement.
13. NOTICES. All notices, requests, demands or communications
made pursuant to the terms hereof or required or permitted to be given by one
party to another shall be given in writing
3(a)(2)-3
4
by personal delivery or by registered mail, postage prepaid or by electronic
means of communication, addressed to such other party or delivered to such
other party as follows:
to the Client at: LaserMedia Inc.
▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇
Attention: Chief Financial Officer
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
to the Consultant at: Aludra Software Inc.
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
or at such other address or electronic communication number as may be given by
any of them to the other from time to time and such notices, requests, demands
or other communications shall be deemed to have been received when delivered,
or, if mailed, three (3) business days following the date of mailing thereof,
provided that if any such notice, request, demand or other communication shall
have been mailed and regular mail service shall be interrupted by strikes or
other irregularities, such notices, requests, demands or other communications
shall be deemed to have been received three (3) business days after the day
following the resumption of normal service and if given by electronic
communication, on the day of transmittal thereof if given during the normal
business hours of the recipient and on the business day during which such
normal business hours next occur if not given during such hours on any day. If
the party giving any demand, notice or other communication knows or ought
reasonably to know of any difficulties with the postal system which might
affect the delivery of mail, any such demand, notice or other communication
shall not be mailed but shall be given by personal delivery or by electronic
communication.
14. TIME OF THE ESSENCE. Time shall be of the essence.
15. FURTHER ASSURANCES. The parties agree to sign such other
instruments, cause such meetings to be held, resolutions passed and by-laws
enacted, exercise their vote and influence, do and perform and cause to be done
and performed such further and other acts and things as may be necessary or
desirable in order to give full effect to this Agreement.
16. SUCCESSORS AND ASSIGNS. This Agreement shall enure to the
benefit of and be binding upon the parties hereto and their respective
successors and assigns.
17. NON-WAIVER. No waiver by any party of any breach by any other
party of any of its covenants, obligations and agreements hereunder shall be a
waiver of any subsequent breach of any other covenant, obligation or agreement,
nor shall any forbearance to seek a remedy for any breach by a waiver of any
rights and remedies with respect to such or any subsequent breach.
3(a)(2)-4
5
IN WITNESS WHEREOF, the parties have duly executed this Agreement as
of the date and year first above written.
SIGNED, SEALED AND DELIVERED )
in the presence of )
ALUDRA SOFTWARE INC.
Per:
------------------------------------
Authorized Signing Officer
LASERMEDIA INC.
Per:
------------------------------------
Authorized Signing Officer
3(a)(2)-5
6
SCHEDULE "A"
3(a)(2)-6
