EXHIBIT 10.5
MANAGEMENT SERVICES AGREEMENT
THIS AGREEMENT made as of the 5th day of April, 2006 "Effective Date").
BETWEEN:
CONSORTEUM INC.
(hereinafter referred to as the "Consultant")
OF THE FIRST PART
- and -
FP FINANCIAL LTD.
(hereinafter referred to as the "Corporation")
OF THE SECOND PART
WHEREAS the Corporation desires to obtain and apply the expertise of
the Consultant to the Corporation's business.
NOW THEREFORE THIS AGREEMENT WITNESSES that for good and valuable
consideration (the receipt and sufficiency of which are hereby acknowledged by
each of the parties hereto) the parties make the agreements and acknowledgements
hereinafter set forth:
1. CONSULTING SERVICES - The Corporation hereby retains the services of
the Consultant and the Consultant hereby agrees to provide the consulting
services which are described in Schedule "A" in accordance with the provisions
set out in Schedule "A" (the "Services"). The Corporation hereby agrees the
Consultant will be the Corporation's sole and exclusive financial products and
services provider as set forth in Schedule "A". The Consultant shall not be
required to provide any services to the Corporation except as set forth in
Schedule "A". The Consultant will provide all Services to the Corporation at the
Consultant's net cost for the term of the contract.
2. TERM - This Agreement shall commence on the Effective Date with an
initial term of four years and will be automatically renewed for successive two
year terms thereafter unless the parties elect not to renew his Agreement in
accordance with Section 8.
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3. NON-EXCLUSIVITY OF SERVICES -- The Corporation acknowledges that the
Consultant may be retained as a consultant by other persons. The Consultant may
continue to provide services to other persons and may accept new retainers for
services. The Consultant may, in the performance of the Services, provide the
services of one or more of its employees or representatives, and the identities
of such employees or representatives shall be in the discretion of the
Consultant. The manner and the times at which the Consultant performs the
Services shall be within the discretion of the Consultant.
4. COMPENSATION -- The Corporation shall pay to the Consultant an
initial management fee of $5,000.00 payable upon execution of this Agreement.
Thereafter, the Corporation shall pay to the Consultant a monthly management fee
of $5,000.00 on the 15th day of each month until the launch of the FP Financial
benefits card (the "Benefits Card"). Following the launch of the Benefits Card,
the Consultant will receive twenty percent (20%) of all gross profits from all
current and future services provided by the Consultant for the term of the
contract and any renewal terms. The Consultant shall be entitled to send an
invoice to the Corporation for the Consultant's fees for each month which shall
be payable within 10 days after the date on which such invoice is received by
the Corporation. The Corporation shall pay all applicable taxes such as GST upon
the Consultant's fees.
5. REIMBURSEMENT -- The Corporation agrees to reimburse the Consultant
for all reasonable and necessary expenses incurred in the performance of its
services under this Agreement provided that the Consultant shall substantiate
its expenses by furnishing to the Corporation reasonable evidence relating to
expenses for which the Consultant seeks reimbursement.
6. COMPLIANCE WITH LAWS - The Consultant shall in the performance of
this Agreement comply with all laws, regulations and orders of the federal laws
of Canada and of the Province of Ontario.
7. INDEPENDENT CONTRACTOR - The Consultant shall provide the Services
to the Corporation as an independent contractor and not as an employee of the
Corporation and acknowledges that an employer-employee relationship is not
created by this Agreement.
8. TERMINATION --
(a) A party may terminate this Agreement effective
immediately upon notice to the other party in the
event that the other party is in breach of any of the
terms or conditions of this Agreement which breach is
material and has not been cured in all material
respects within 30 days after receipt of written
notice which provides details of the breach. The
parties acknowledge and agree that a breach of this
Agreement by the Consultant is material if it
detrimentally and materially affects the business of
the Corporation taken as a whole.
(b) A party may terminate this Agreement effective
immediately upon notice to the other party in the
event that the other party becomes insolvent or 3
voluntarily or involuntarily bankrupt, or makes an
assignment for the benefit of its creditors.
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(c) In the event of termination, by the Consultant under
the provisions of paragraph (a) or (b) above, or in
the event of wrongful termination of this Agreement
by the Corporation, the Corporation shall pay to the
Consultant, all amounts then owing under this
Agreement.
▇.▇▇▇▇▇ RISK MANAGEMENT -- The following legal risk management
provisions will apply for all purposes under and relating to this Agreement:
(a) the obligations of the Consultant expressly stated in
this Agreement are in lieu of all other
representations, warranties or conditions expressed
or implied including implied representations,
warranties or conditions arising by statute or
otherwise in law, or from a course of dealing or
usage of trade;
(b) neither party shall have any liability whatsoever for
any special or consequential damages, loss of profits
or other economic loss of the other party; this
limitation shall not apply to any obligation by a
party to pay any fees or other amounts expressly
required under this Agreement.
10. TIME OF ESSENCE -- Time of payment is of the essence.
11. REPRESENTATIONS AND WARRANTIES - Each party represents, warrants
and covenants to the other party as follows:
(a) Each party is duly organized, validly existing and no
action relating to insolvency, liquidation or
suspension of payments has, to the knowledge of such
party, been taken in respect of it.
(b) The execution, delivery and performance of this
Agreement by each party has been duly authorized by
all necessary action on the part of such party in
accordance with such party's constating documents and
does not and will not require the prior written
consent of any trustee or holder of any indebtedness
or other obligation of such party or any other party
to any other agreement with such party.
12.ENTIRE AGREEMENT - With respect to the subject matter of this
Agreement, this Agreement: (a) sets forth the entire agreement between the
parties hereto and any persons who have in the past or who are now representing
either of the parties hereto, (b) supersedes all prior understandings and
communications between the parties hereto, oral or written, and (c) constitutes
the entire agreement between the parties hereto. Each party hereto acknowledges
and represents that this Agreement is entered into after full investigation and
that no party is relying upon any statement or representation made by any other
which is not embodied in this Agreement. Each party hereto acknowledges that no
liability whatsoever shall arise based in contract or tort, with respect to
misrepresentations of any kind, including but not limited to, statements or
representations negligently made by any persons who have in the past or who are
now representing either of the parties hereto, in order to induce either party
into entering into this agreement. Each party hereto acknowledges that he or it
shall have no right to rely upon any amendment, promise, modification, statement
or representation made or occurring subsequent to the execution of this
agreement unless the same is in writing and executed by each of the parties
hereto.
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13. COUNTERPARTS - This Agreement may be executed in any number of
counterparts and all such counterparts shall for all purposes constitute one
agreement, binding on the parties hereto, provided each party hereto has
executed at least one counterpart, and each shall be deemed to be an original,
notwithstanding that all parties are not signatory to the same counterpart. This
Agreement may be executed and delivered by either of the parties by transmitting
to the other a copy of this Agreement (executed by such delivering Party) by
telecopier or similar means of electronic communication, and delivery in that
manner by a party shall be binding upon such party and deemed to be an original.
14. ASSIGNMENT AND ENUREMENT - This Agreement shall enure to the
benefit of and be binding upon the parties and their respective successors and
permitted assigns.
15. SURVIVAL - Any terms or conditions of this Agreement by which
obligations of either party are applicable or which extend or may extend beyond
expiration or termination of this Agreement (whether expressly or by
implication) shall survive and continue in full force and effect notwithstanding
such termination. All obligations to pay fees under this Agreement shall survive
expiration or termination of this Agreement.
16. GOVERNING LAW - This Agreement and the rights and obligations and
relations of the parties hereto shall be governed by and construed in accordance
with the laws of the Province of Ontario and the federal laws of Canada
applicable therein (but without giving effect to any conflict of laws rules).
The parties hereto agree that the Courts of Ontario shall have jurisdiction to
entertain any action or other legal proceedings based on any provisions of this
Agreement. Each party hereto does hereby attorn to the jurisdiction of the
Courts of the Province of Ontario.
17. PARTIAL INVALIDITY, - In any provision of this Agreement or the
application thereof to any person or circumstance shall, to any extent, be
invalid or unenforceable, the remainder of this Agreement, or the application of
such provision to persons or circumstances other than those as to which it is
held invalid or unenforceable, shall not be affected thereby and each provision
of this Agreement shall be valid and enforced to the fullest extent permitted by
law and be independent of every other provision of this Agreement.
18. FURTHER ASSURANCES - Each party hereto agrees from time to time,
subsequent to the date hereof, to execute and deliver or cause to be executed
and delivered to the other of them such instruments or further assurances as
may, in the reasonable opinion of the other of them, be necessary or desirable
to give effect to the provisions of this Agreement.
19. CONFIDENTIALITY --
(a) Each party hereby undertakes to keep confidential and
shall cause all of employees, and agents to keep
confidential, the confidential information of the
other party disclosed hereunder, except as may be
explicitly approved by the other party in writing, or
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as may be necessary for the proper discharge by the
first party of its duties, responsibilities and
obligations under this Agreement. The obligations of
confidentiality and restricted use herein will not
apply to the confidential information of the
disclosing party that is already known to the
receiving party, in the public domain, or enters the
public domain through no breach of this Agreement by
the receiving party.
(b) Notwithstanding the provisions of Section 19(a), a
party shall be entitled to the extent necessary for
the performance of its duties hereunder to allow
access to the information covered by Section 19(a)
above exclusively to such of its employees, and
consultants who are directly concerned with the
carrying out of such party's duties under this
Agreement; provided that such party shall inform each
of such persons of the confidential nature of such
information and of such party's obligation of
confidentiality with respect to it, and such party
shall be responsible for any breach of such
obligations by any of its employees, or consultants.
(c) If required to provide any information subject to
this Section 19 pursuant to any subpoena or any other
equivalent legal process, a party shall promptly
notify the other party so that such other party can
seek a protective order from the court having
jurisdiction in such matter or otherwise seek to
prevent or limit the scope of, or impose conditions
upon, such disclosure.
(d) All public announcements of a material business
nature related to the business of either party shall,
if they are to be made, be subject to prior written
notice to THE other party.
20.EXECUTION AND DELIVERY - This Agreement has been duly executed and
delivered by each party. This Agreement constitutes the legal, valid, binding
and enforceable obligation of such party.
2 1 .LANGUAGE - At the request of the parties, this agreement has been
drafted in the English language. A la demande des parties, la presente
convention a ete redigee en anglais.
22. SECTION HEADINGS - Section headings appearing in this Agreement are
inserted for convenience or reference only, and shall in no way be construed to
be interpretations of text.
23. AMENDMENTS - This Agreement may be modified or amended only by the
duly authorized representatives of both parties by an instrument in writing.
24. NOTICE TO BE GIVEN - All invoices, demands or other communications
required or permitted to be given under this Agreement to a party shall be in
writing and delivered, posted by registered prepaid mail or sent by facsimile or
e-mail addressed to the party for whom it is intended as follows:
THE CORPORATION:
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▇▇▇-▇▇▇ ▇▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇
▇▇▇ OP4
Fax No.: (2U4) ▇▇▇-▇▇▇▇
THE CONSULTANT:
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇
LdK 3N7
E-mail: ▇▇▇▇▇_▇▇▇▇▇▇▇▇@▇▇▇▇▇▇.▇▇▇
Notices delivered shall be deemed given and received upon delivery, those sent
by registered mail on the fifth (5th) day after posting, and those sent by
facsimile or e-mail, on the day of transmission; provided that during any period
of mail disruption, notice shall he delivered or sent by facsimile or e-mail.
Either party may at any time and from time to time designate a substitute
address for the purpose of this paragraph by GIVING written notice thereof to
the other party at least ten (10) days in advance of the effective date of such
designation.
26. OTHER RULES - Unless the context of this Agreement otherwise
requires,
(a) the terms "hereof," "herein," "hereby" and derivative
or similar words refer to THE ENTIRE Agreement,
including schedules and exhibits;
(b) any reference to a law, a regulation, an agreement or
a document shall refer to any amendment, supplement
or replacement of the same;
(c) any reference to a person shall, where appropriate,
include any successors and permitted transferees and
assigns of such persons; and
(d) the terms "include" or "including" means "including
without limitation"." Whenever this Agreement refers
to a number of days, such number shall refer to
calendar days unless business days are specified.
IN WITNESS WHEREOF the parties hereto have executed this Agreement as
of the date written above,
FP FINANCIAL LTD
By: ▇▇▇ ▇▇▇▇▇
-----------------------
I have authority to bind
the Corporation
▇▇▇ ▇▇▇▇▇
President and Secretary
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CONSORTEUM INC.
SCHEDULE "A"
SERVICES TO BE PROVIDED BY THE CONSULTANT TO THE
CORPORATION
1. Consulting services for the purpose of providing management
services, financial technology services, and alternative payment and
provisioning initiatives (including benefits/payroll initiatives).
2. Initial services include:
(a) contract negotiation assistance with financial
technology and service providers;
(b) project management assistance and ongoing support for
deployment of services; and
(c) technical support for services provided by the
Consultant to the Corporation.
3. Additional services to be provided shall include
(a) point-of-sale terminals;
(b) payment processing services;
(c) future micro-payment products: EMV and contract-less
payments;
(d) pre-paid card service: credit card, debit card, gift,
wireless, long distance;
(e) value-added services: loyalty, insurance services,
AAA, medical, travel; and
(f) future programs as agreed upon by the parties.
