THIS AGREEMENT ("Agreement") is made on this 17th day of November 2003
BETWEEN: On The Go Healthcare, Inc. a company duly constituted under the laws
of the State of Delaware, and, having its head office at 00 Xxxxxxxx
Xxx, Xxxx #0 Xxxxxxx, Xxxxxxx, Xxxxxx X0X 0X0 (hereinafter referred
to as "OTG")
AND: XXXXX X. XXXXX, residing at 00 Xxxx Xxxx Xxxx, Xxxxxx Xxxxx,
Xxxxxxxx,00000 (hereinafter referred to as the "Consultant")
WHEREAS, OTG is desirous to market, sell and distribute its products and
services in various regions of the United States (the "Objective");
and
WHEREAS, the Consultant is capable and willing to undertake to investigate
and take all necessary steps to establish, a sales force of
Independent Brokers and manage such an undertaking,
NOW, THEREFORE, the parties hereto agree as follows:
ARTICLE 1: DEFINITIONS
In this Agreement, unless the context otherwise requires:
1.1 Agreement - means this agreement dated as of the date hereof, as well as
any rider, amendment, modification or intervention which might be made or
added thereto in writing, with mutual consent of the parties; the Agreement
is also sometimes designated by the expressions "hereof", "herein" and
"hereunder";
1.2 Facilities - means the floor space, lighting, air conditioning, electric
power, telecommunications, and office equipment required for the
accommodation and operation of commercial establishment(s) to accomplish
the Objectives.
1.3 Personnel - means any persons engaged by the Consultant acting as agent
for OTG.
1.4 Services - means the services and operations described in this Agreement
to be provided by the Consultant.
1.5 Office Sites - means the premises at which the Facilities are to be
provided.
ARTICLE 2: RESPONSIBILITIES OF OTG
2.1 OTG shall provide within NINETY (90) days of the signing of this agreement
(a) A business plan outlining strategies required to be implemented to pursue
the aforementioned Objectives.
(b) A definition of all Personnel to be engaged.
2.2 Pay directly all purchases or contracts for goods and services entered
into by the Consultant on behalf of OTG with the prior written pproval
of OTG.
ARTICLE 3: RESPONSIBILITIES OF the Consultant
3.1 Engage all necessary Personnel as per the directives of OTG.
3.2 Purchase on behalf of OTG all office equipment as needed.
3.3 Supervise newly engaged Personnel.
3.4 Undertake to search for, and negotiate with potential distributors
or partners for the sale and distribution of OTG's Products.
3.5 Assist and advise on sale and marketing strategies, and supervise the
implementation of such strategies.
ARTICLE 4: TERM OF AGREEMENT, TERMINATION, GEOGRAPHIC SCOPE
4.1 The Initial Term of this Agreement shall be for one (1) year from the
Effective Date of this Agreement.
4.2 In the event that either party materially or repeatedly defaults in the
performance of any of its duties or obligations under this Agreement and,
within thirty (30) days after written notice is given to the defaulting
party specifying the default, (i) such default is not substantially cured,
or (ii) the defaulting party does not obtain the approval of the other
party to a plan to remedy the default, then the party not in default may
terminate this Agreement by giving written notice to the defaulting party.
4.3 If either party becomes or is declared insolvent or bankrupt, is the
subject of any proceedings relating to its liquidation, insolvency or for
the appointment of a receiver or similar officer for it, makes a general
assignment for the benefit of all or substantially all of it creditors, or
enters into an agreement for the composition, extension or readjustment of
all or substantially all of its obligations, then the other party, within
the conditions of applicable law, may immediately terminate this Agreement
by giving written notice.
4.4 The Consultant shall confine his business activities to the State of
Maryland.
ARTICLE 5: CONFIDENTIALITY
5.1 During the term of this Agreement, and for a period of three (3) years
after the expiration of the term of this Agreement, proprietary or
confidential information ("Information") of any kind pertaining to both
parties' businesses, and all written material marked by ether party as
"Confidential" or "Proprietary" shall be treated by the other party as
secret and confidential and accorded the same protection as the parties
give to their own Information of a similar nature. Verbally disclosed
Information, which is to be treated as confidential or proprietary, by
a party shall be confirmed as such in writing by the party within thirty
(30) days of such disclosure.
5.2 Notwithstanding the foregoing, confidential Information does not include
information
which:
* has been published or is otherwise readily available
to the public other than by breach of this Agreement;
* has been rightfully received by the receiving party from
a third party without breach of any confidentiality
obligations;
* has been independently developed by the receiving party's
personnel without access to, or use of, the other party's
Confidential Information;
* was known to the receiving party prior to its first
receipt from the other party and which the receiving party
has documented prior to the date hereof; or
* is required to be disclosed by law whether under an order
of a court or government, tribunal or other legal process.
In such cases, the receiving party must immediately notify
the other party of the disclosure requirement, in order to
allow the other party a reasonable opportunity to obtain a
court order to protect its rights, or otherwise to protect
the confidential nature of the Confidential Information.
ARTICLE 6: FEES and CHARGES
6.1 The parties agree that the activities undertaken and services provided to
OTG shall be paid by the issuance of one hundred thousand (100,000) common
shares of On The Go Healthcare, Inc to the Consultant
6.2 All pre-approved charges related to the purchase of office equipment,
establishment of the office site and facilities, and other costs related
to site preparation shall be billed directly to OTG by the provider of such
equipment or services.
6.3 All charges in this agreement are stated in legal currency of the United
States of America.
ARTICLE 7: TAXES
OTG shall assume responsibility for, and hold the Consultant harmless from
all taxes, duties, or similar liabilities arising under this Agreement,
under any present or future tax laws, except for the personal income tax
of the Consultant.
ARTICLE 8: LIABILITY, INDEMNITY, WARRANTIES, AND INSURANCE
8.1 OTG shall indemnify the Consultant and hold it harmless against and in
respect to any and all claims, damages, losses, costs, expenses,
obligations, liabilities, actions, suits, including without limitation,
interest and penalties, reasonable attorneys' fees and costs and all
amounts paid in settlement of any claim, action or suit that may be
asserted against OTG or the Consultant or that OTG or the Consultant
shall incur or suffer, that arise out of, result from or relate to:
(a) the non-fulfillment of any agreement, covenant or obligation of OTG
in connection with this Agreement; (b) any breach of any representation
or warranty made by OTG hereunder.
8.2 The Consultant warrants that it will perform its obligations under this
Agreement in a professional and workmanlike manner. In the event the
Consultant is liable to OTG on account of the Consultant's performance or
nonperformance of its obligations under this Agreement, whether arising
by negligence or otherwise, (i) the amount of damages recoverable against
the Consultant for all events, act or omissions will not exceed in the
aggregate the Charges paid by OTG for the last twelve (12) months and
(ii) in no event will the Consultant be responsible for any indirect,
consequential, incidental or punitive damages of any party, including
third parties, or for lost profits. In connection with the conduct of
any litigation with third parties relating to any liability of the
Consultant to OTG or to such third parties, the Consultant will have
all rights to accept or reject settlement offers and to participate in
such litigation. OTG and the Consultant expressly acknowledge that the
limitations contained in this Section have been the subject of active
and complete negotiation between the parties and represent the parties'
agreement.
8.3 Subject to Articles 8.1 and 8.2 hereof, both Parties shall be responsible
for damage to, or loss of their own property, both real and personal, and
that each shall be responsible for insuring his own property, with an
insurance policy providing extended coverage, including but not limited
to perils of fire together with insurance against flood, theft, vandalism,
malicious mischief sprinkler leakage and damage, and boiler and pressure
vessel insurance. The Consultant will also subscribe to and maintain
additional insurance covering damages for up to $1,000,000 to third party
equipment and personnel caused by the use of the office and related
equipment and any other insurance coverage, which would seem appropriate
in the context of this Agreement. The Consultant shall furnish OTG, upon
request to such effect, with certificates of insurance evidencing such
coverage.
ARTICLE 9: EXCUSABLE DELAY
9.1 If either party is unable to perform any of its obligations hereunder due
to Force Majeure, the failure to perform by such party shall not constitute
a basis for termination or default under this Agreement provided that
notice thereof is given to the other party within seven (7) days after
the party becomes aware of such event. OTG shall not be required to make
any payment to the Consultant pursuant to Article 7 during the period of
the Consultant's inability, as a result of an event of Force Majeure, to
provide the Services and Facilities.
9.2 For the purposes of this Agreement, Force Majeure shall be understood to
be any cause beyond the reasonable control of the non-performing party and
without its fault or negligence and includes, without limiting the
generality of the foregoing, acts of God or of a public enemy, acts of any
Government or any State or Territory, or any agency thereof, in its
sovereign capacity, fires, floods, epidemic, quarantine restrictions,
unusually severe weather conditions, extraordinary vehicle traffic
conditions, or mechanical malfunctions.
ARTICLE 10: NOTICES
Any notice or communication under this Agreement shall be in writing and
shall be hand delivered, given by fax or sent by registered mail return
receipt requested, postage prepaid, to the other party's designated
representative, receiving such communication at the address specified
herein, or such other address or person as either party may in the future
specify to the other party. Such notice shall be deemed to be received upon
delivery or, by fax, on the next business day following transmission
provided electronic evidence of transmission is produced at point of
origin or, if mailed, on the fourth business day following the date of
mailing.
If to The Consultant:
Xxxxx X. Xxxxx
00 Xxxx Xxxx Xxxx,
Xxxxxx Xxxxx, Xxxxxxxx,
00000
If to OTG:
On The Go Healthcare, Inc.
00 Xxxxxxxx Xxx
Xxxx #0
Xxxxxxx, Xxxxxxx, Xxxxxx
X0X 0X0
Attention: Xxxxxx Xxxx
ARTICLE 11: MISCELLANEOUS
11.1 Neither party may assign or transfer all or any part of its rights under
this Agreement, without the prior written consent of the other, except
when assigning all of their rights and obligations to any legal entity
controlling, controlled by, or under common control with it, but with
thirty (30) days' prior notice to the other party.
11.2 The Consultant can assign this Agreement or any obligations hereunder
to a third party. If any obligations of the Consultant are assigned to
a subcontractor, the Consultant will remain responsible for such
obligations under this Agreement.
11.3 This Agreement is not intended to create, nor shall it be construed to
be, a joint venture, association, partnership, franchise, or other form
of business relationship. Neither party shall have, nor hold itself out
as having, any right, power or authority to assume, create, or incur any
expenses, liability, or obligation on behalf of the other party, except
as expressly provided herein.
11.4 If any provision of this Agreement is held invalid, illegal or
unenforceable in any respect, such provision shall be treated as
severable, leaving the remaining provisions unimpaired, provided that
such does not materially prejudice either party in their respective
rights and obligations contained in the valid terms, covenants, or
conditions.
11.5 There are no intended third party beneficiaries to this Agreement.
11.6 The failure of either party to require the performance of any of the
terms of this agreement or the waiver by either party of any default under
this Agreement shall not prevent a subsequent enforcement of such term,
nor be deemed a waiver of any subsequent breach.
11.7 This Agreement may not be modified, supplemented, or amended or default
hereunder waived except upon the execution and delivery of a written
agreement signed by the authorized representative of each party.
11.8 Both parties represent and warrant that each has the full authority to
perform its obligations under this Agreement and that the person executing
this Agreement has the authority to bind it.
11.9 This Agreement shall be governed by and construed in accordance with the
laws of the Province of Ontario and the applicable federal laws of Canada
therein, and the parties irrevocably submit to the jurisdiction of the
courts of the Province of Ontario, city of Toronto.
11.10 The Parties have requested that this Agreement and all documents and
communications pursuant to or in connection with this Agreement be drawn
up in the English language.
11.11 This Agreement constitutes the final and full terms of understanding
between the parties and supersedes all previous agreements,
understandings, negotiations, and promises, whether written or oral,
between the parties with respect to the subject matter hereof.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their duly authorized representatives as of the day and year
set forth below.
On The Go Healthcare, Inc.
/s/ Xxxxxx Xxxx /s/ Xxxxx X. Xxxxx
-------------------------------- -----------------------------------
Signature Signature
Xxxxxx Xxxx, President, CEO Xxxxx X. Xxxxx
Chairman & Director
November 17, 2003 November 17, 2003
-------------------------------- -----------------------------------
Date Date
