Exhibit 10.1
Consultant Agreement
Agreement Commencement Date: January 18, 2002
Data Power of New England, Inc.
00 Xxxx Xxxxxx, Xxxxx 000
Xxxxxxxx, XX 00000
(000) 000-0000
Agreement Termination Date: January 18, 2004
Per Clause 4 of this Agreement
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BETWEEN:
Name: Data Power Of New England, Inc.
00 Xxxx Xxxxxx, Xxxxx 000
Xxxxxxxx, XX 00000
(Hereinafter referred to as "the Consultant")
And
CyPost Corporation
000-0000 Xxxxxxx Xxxxxx
Xxxxxxxxx, XX X0X 0X0
(Hereinafter referred to as "the Company")
IN CONSIDERATION OF the mutual covenants, terms and agreements herein contained,
and for other good and valuable consideration, the receipt and sufficiency of
which is hereby acknowledged, the parties hereto hereby agree as follows:
1. INSURANCE CLAUSE 11.
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It is hereby agreed and initialled by both parties that Clause
11. Insurance shall not apply or have effect in this Agreement.
For CyPost Data Power of New England, Inc.
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2. THE COMPANY SHALL.
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Allow the use of Company facilities required to complete the tasks.
3. COMPENSATION AND HOURS OF WORK.
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(a) The Company agrees to consultation fee rate of three hundred
fifty U.S. dollars per hour, (u.s. $350.00/hour), billable in 15
minute increments for Services provided, billed on the first
(1st) day of the month and payable net 10 days for Services
provided within this Agreement. The aforesaid fee is payable in
cash, check or S-8 stock and/or combination of any of the above
to the consultant.
(b) The Consultant shall maintain complete and accurate accounting
records, in a form in accordance with sound accounting practices,
to substantiate his/her invoices hereunder. The Consultant shall
retain such records for a minimum of one year from the date of
final payment under this Agreement.
(c) The Consultant shall submit an invoice once per month, showing
work finished or in progress and time applied to each with a
document of records supporting billable hours via electronic mail
to the designated person at the Company.
4. TERM.
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This Agreement shall commence on the above Date of Commencement of
Term, and shall remain in effect from month to month until the above
Date of Termination of Term (the "Term").
This Agreement may be terminated at any time at the option of one
party, upon the failure of the other party to comply with the
covenants, terms and agreements of this Agreement and upon notice of
such failure to such other party, or upon giving 30 days written
notice to the other Party of the intention to terminate the Agreement.
Upon any termination of this Agreement, the Consultant shall deliver
to the Company all written or descriptive matter which has been
developed, maintained or copied by the Consultant in furtherance of
this Agreement, or which may contain Confidential Information (as
defined below), including, but not limited to drawings, files, lists,
plans, blueprints, papers, documents, tapes, software or any other
such media. The Consultant shall secure all such written or
descriptive matter in locked files at all times to prevent their loss
or unauthorized disclosure, and to segregate Confidential Information
at all times from the material of others. In the event of loss or
destruction of any such written or descriptive matter, the Consultant
shall promptly notify the Company of the particulars of the same in
writing.
5. CONFIDENTIAL INFORMATION.
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(a) For the purposes of this Agreement, the term "Confidential
Information" means all information disclosed to, or acquired by,
the Consultant or the Consultant's employees or agents in
connection with, and during the term of this Agreement which
relates to the Company's past, present and future research,
developments, systems, operations and business activities,
including, without limiting the generality of the foregoing:
i. All items and documents prepared for, or submitted to,
the Company in connection with this Agreement, and
ii. All information specifically designated by the Company
as confidential;
But shall not include any information which was known to the
Consultant prior to the date hereof, or which was publicly
disclosed otherwise than by breach of this Agreement.
(b) The Consultant acknowledges that pursuant to the performance of
his/her obligations under this Agreement, he/she may acquire
Confidential Information. The Consultant covenants and agrees,
during the Term and following any termination of this Agreement,
to hold and maintain all Confidential Information in trust and
confidence for the Company and not to use Confidential
Information other than for the benefit of the Company except as
required by Law. Except as authorized in writing by the Company,
the Consultant covenants and agrees not to disclose any
Confidential Information, by publication or otherwise, to any
person other than those persons whose services are contemplated
for the purposes of carrying out this Agreement, provided that
such persons agree in writing to be bound by, and comply with the
provisions of this paragraph. The Consultant shall obtain similar
covenants and agreements to those contained in this paragraph for
the benefit of the Company from each of its employees or agents
who are, or may be, exposed to Confidential Information.
6. RIGHTS IN DATA.
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(a) All of the items prepared for or submitted to the Company under
this Agreement (the "Items") shall belong exclusively to the
Company. The Consultant hereby assigns to the Company the
ownership of copyright in the Items and the Company shall have
the right to obtain and hold, in its own name, copyrights,
registrations and similar protection, which may be available in
the Items. The Consultant shall give the Company or its designees
all assistance reasonably required to perfect such rights.
(b) To the extent that any pre-existing materials are contained in
the Items, the Consultant grants to the Company an irrevocable,
non-exclusive, worldwide, royalty-free license to (i) use,
execute, reproduce, display, perform, distribute (internally or
externally) copies of, and prepare derivative works based upon
the Items and (ii) authorize others to do any, some or all of the
foregoing.
(c) No license or right is granted to the Consultant either expressly
or by implication, estoppels or otherwise, to publish, reproduce,
prepare derivative works based upon, distribute copies of,
publicly display, or perform, any of the Items, except
pre-existing materials of the Consultant, either during the Term
or after termination of this Agreement.
7. WARRANTIES.
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The Consultant represents and warrants as follows:
(a) That he/she is under no obligation or restriction, nor will
he/she assume any such obligation or restriction, which would in
any way interfere or be inconsistent with, or present a conflict
of interest concerning the services to be furnished by him/her
under this Agreement.
(b) That all items delivered to the Company pursuant to this
Agreement are original and that no portion of such items, or
their use or distribution, violates or is protected by any
copyright or similar right of any third party.
(c) That any information disclosed by the Consultant to the Company
is not confidential and/or proprietary to the Consultant and/or
any third party.
8. TRADE MARKS AND TRADE NAMES.
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Notwithstanding any other provision of this Agreement, the
Consultant shall have no right to use the Trade Marks or Trade
Names of the Company or to refer to this Agreement or the
Services, directly or indirectly, in connection with any product,
service, promotion or publication without the prior written
approval of the Company.
9. NOTICES.
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All notices, requests, demands or other communications required
by this Agreement or desired to be given or made by either of the
parties to the other hereto shall be given or made by personal
delivery or by mailing the same in a sealed envelope, postage
prepaid, registered mail, return receipt requested, and addressed
to the parties at their respective addresses set forth above or
to such other address as may, from time to time, be designated by
notice given in the manner provided in this paragraph. Any notice
or communication mailed as aforesaid shall be deemed to have been
given and received on the third business day next following the
date of its mailing. Any notice or writing delivered to a party
hereto shall be deemed to have it been given and received on the
day it is delivered, provided that if such day is not a business
day, then the notice or communication shall be deemed to have
been given and received on the business day next following such
date.
10. INSURANCE.
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The Consultant shall maintain, throughout the performance of
his/her obligations under this Agreement, adequate general
liability insurance providing coverage against liability for
bodily injury, death and property damage which may arise out of
or based upon any act or omission of the Consultant or any of its
employees, agents or subcontractors under this Agreement. Upon
written request, the Consultant shall promptly provide
certificates from its insurers indicating the amount of insurance
coverage, the nature of such coverage and the expiration date of
each applicable policy.
11. COMPLIANCE WITH LAWS.
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The Consultant agrees that he will comply with all applicable
laws, ordinances, regulations and codes in the performance of its
obligations under this Agreement, including the procurement of
permits and certificates where required. The Consultant further
agrees to hold harmless and indemnify the Company against any
loss or damage to include reasonable solicitor's fees that may be
sustained by reason of the failure of the Consultant to comply
with such laws, ordinances, regulations and codes.
12. ENTIRE AGREEMENT.
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This Agreement sets forth the entire Agreement between the
parties hereto in connection with the subject matter hereof. No
alteration, amendment or qualification of this Agreement shall be
valid unless it is in writing and is executed by both of the
parties hereto.
13. SEVERABILITY.
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If any paragraph of this Agreement or any portion thereof is
determined to be unenforceable or invalid by the decision of any
court by competent jurisdiction, which determination is not
appealed or appeasable, for any reason whatsoever, such
unenforceability or invalidity shall not invalidate the whole
Agreement, but the Agreement shall be construed as if it did not
contain the particular provision held to be invalid and the
rights and obligations of the parties shall be construed and
enforced accordingly.
14. FURTHER ASSURANCES.
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The parties hereto covenant and agree that each shall and will,
upon reasonable request of the other, make, do, execute or cause
to be made, done or executed, all such further and other lawful
acts, deeds, things, devices and assurances whatsoever for the
better or more perfect and absolute performance of the terms and
conditions of the this Agreement.
15. SUCCESSORS AND ASSIGNS.
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The Consultant shall not assign this Agreement or any interest
herein or subcontract the performance of any Services without the
prior written consent of the Company. This Agreement may be
assigned by the Company without the Consultant's consent and the
Assignee shall have the rights and obligations of the Company.
This Agreement shall enure to the benefit of and be binding on
the heirs, executors, administrators, successors and permitted
assigns of the parties hereto.
16. GOVERNING LAW.
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This Agreement shall be governed by and construed in accordance
with the laws of:
Xxxxx/Xxxxxxxx Xxxxxxx Xxxxxxxx, Xxxxxx
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17. RELATIONSHIP.
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The Consultant shall perform the Services as an independent
contractor. Nothing contained in this Agreement shall be deemed
to create any association, partnership, joint venture, or
relationship of principal and agent or employer and employee
between the parties hereto or to provide either party with the
right, power or authority, whether express or implied, to create
any such duty or obligation on behalf of the other party. The
Consultant also agrees that he will not hold himself out as an
affiliate of or partner, joint venturer, co-principal or
co-employer with the Company, by reason of the Agreement and that
the Consultant will not knowingly permit any of his employees,
agents or representatives to hold themselves out as, or claim to
be, officers or employees of the Company by reason of the
Agreement. In the event that the Company is adjudicated to be a
partner, joint venturer, co-principal or co-employer of or with
the Consultant. The Consultant shall indemnify and hold harmless
the Company from and against any and all claims for loss,
liability or damages arising therefrom.
18. CONSTRUCTION.
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In this Agreement, except as otherwise expressly provided, all
words and personal pronouns relating thereto shall be read and
construed as the number and gender of the party or parties
referred to in each case require and the verb shall be read and
construed as agreeing with the required word and pronoun.
19. HEADINGS.
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The division of this Agreement into paragraphs and the use of
headings are for convenience of reference only and shall not
modify or affect the interpretation or construction of this
Agreement or any of its provisions.
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IN WITNESS WHEREOF the parties hereto have executed this Agreement as of the
date first above written.
SIGNED:
Consultant /s/Xxxxxxx Xxx Xxxxxx Witness .
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Xxxxxxx X. Xxx Xxxxxx, President .
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(Print name) (Print Name)
CyPost Corporation /s/ Xxxxxx X. Xxxxxx
----------------------------------------------
Xxxxxx X. Xxxxxx
Position: President
Feb 8/02
July 23, 2002
CyPost Corporation
000-0000 Xxxx Xxxxxxx Xxxxxx
Xxxxxxxxx, XX, Xxxxxx
X0X 0X0
ATTN: Xx. Xxxxx Xxxxxxx
----- Managing Director
RE: Consultant Agreement Clarification
---
Dear Xx. Xxxxxxx,
I, Xxxxxxx X. Xxx Xxxxxx, was assigned the above referenced contract from Data
Power of new England, Inc. to conduct the services for your firm. I,
personally, will perform all services for CyPost Corporation as referred above.
Very Truly Yours,
/s/ Xxxxxxx X. Xxx Xxxxxx
Xxxxxxx X. Xxx Xxxxxx
