EXHIBIT 10.10
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INDEPENDENT CONSULTING SERVICES CONTRACT
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THIS AGREEMENT made this 18th day of October, 2000 (hereinafter
referred to as "Effective Date") between LEVCAP COMMUNICATIONS INC., a
corporation carrying on business in Montreal, Canada (hereinafter referred to as
"LevCap") of the first part, and ARS Networks Inc., a corporation carrying on
business in Champlain, New York (hereinafter referred to as the "Client"), of
the second part.
WHEREAS the Client desires to retain a company to improve the Client's
investor relations and public relations.
AND WHEREAS LevCap is engaged in the business of providing investor
relations and public relations by acting as a liaison between the Client and the
investing public.
AND WHEREAS the Client desires to retain LevCap to provide investor
relations and public relations.
NOW THEREFORE WITNESSETH IN CONSIDERATION of the mutual covenants and
agreements herein contained, the parties hereto agree as follows:
DEFINITIONS AND INTERPRETATION
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1. In this Agreement the following terms have the following meanings:
a. "Affiliate" of a specified entity means any entity which
directly, or indirectly through one or more intermediaries, controls, is
controlled by, or is under common control with, such specified entity;
b. "Client" includes any parent, significant shareholder,
subsidiary, division, directors, officers, employees, agents, representatives,
or Affiliate;
c. "LevCap's Business" means providing services with respect to the
planning and implementation of investor relation programs. These services are:
i. investor relations and public relations consulting, training
and education, strategic and tactical planning for investor relations programs,
and multi-tiered and multi-media campaigns; the planning, design and
implementation of systems that create and maintain investor awareness in the
investment community; the planning, design and implementation of press releases,
research reports, newsletters or any medium that highlights our clients'
positive developments; the planning, design and implementation of systems that
facilitate the exchange of information between the investment community and our
clients; the planning, design and implementation of road show presentations to
key brokerage firms and private investors.
2. This Agreement shall be governed by and construed in accordance with
the laws of the Province of Ontario and the laws of Canada applicable therein
and shall be treated in all respects, as an Ontario contract.
3. Time is of the essence of this Agreement.
4. This Agreement constitutes the entire agreement among the parties
and supersedes all previous agreements and understandings in any way relating to
its subject matter. The Client acknowledges that the execution of this Agreement
has not been induced by, nor does the Client rely upon or regard as material,
any oral or written representations, warranties, inducements, promises,
agreements or statements whatsoever, whether direct or collateral, express or
implied, statutory or otherwise, not incorporated herein and made a part hereof.
This Agreement shall not be amended, altered or qualified except by a memorandum
in writing signed by all the parties.
5. Subject to the restrictions on assignment herein, this Agreement
shall enure to the benefit of and be binding upon the parties, their respective
heirs, executors, administrators, successors and assigns.
SERVICES RETAINED
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6. During the term of this Agreement, the Client agrees to retain the
professional services of LevCap to perform the following services:
a. Contacting investment advisors and private investors in order to
introduce them to the Client's technology, stock and business model;
b. Acting as a liaison between potential and vested investors and
the Client in order to address any questions and concerns investors have
regarding the Client;
c. Keeping investment advisors and private investors apprised of
Client developments;
d. Press release consultation;
e. Organizing presentations and/or online discussions featuring the
Client (intended for private investors and financial advisors); and
f. Facilitating the exchange of information between investment
advisors and private investors and the Client management.
g. Providing coverage for the Client on LevCap's professional web
sites.
(hereinafter collectively referred to as the "Services").
7. LevCap hereby will render the Services subject to and in accordance
with the terms and conditions of this Agreement.
COMPENSATION AND ADDITIONAL CONSULTING SERVICES
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8. As compensation for the performance of the Services, the Client
agrees:
a. To issue to LevCap fifteen thousand (15,000) restricted shares
(subject to Rule 144 of the Securities Act of 1933) per month of ARS Networks
(OTC BB: ARSN) ("ARSN") and to cause these same shares to be mailed on the first
of every month to LevCap Communications Inc., situated at: 0000 Xxxxxxxxx Xxxx,
Xxxxx 000 Xxxxxxxx, Xxxxxx X0X 0X0;
b. To grant LevCap Piggyback registration rights for each monthly
installment of fifteen thousand (15,000) restricted shares issued to LevCap;
c. To transfer, on the first of each month, eight thousand (8,000)
free trading shares of ARSN into LevCap's brokerage account #49-UL0 1-5 at
Thomson Kernaghan, situated at: 1000-11 00 Xxxx Xxxxxxxx Xxxxxxxxx, XX X0X 0X0;
d. The terms of payment as stated above are to be carried out for a
period of ninety (90) days from the Effective Date, and are renewable
automatically unless modified or terminated by either party with 30 days written
notice every ninety (90) days thereafter for a period of one (1) year, at which
time the terms of a new agreement may be negotiated.
9. Should the Client desire LevCap to perform additional services,
including but not limited to the provision of LevCap's Business, whether during
the performance of the Services r after completion of the Services (hereinafter
referred to as the "Additional Services"), LevCap and the Client shall, before
such services are performed, mutually agree in writing on LevCap's compensation.
10. In the event that the Client causes a delay in the performance of
the Services and/or Additional Services that results in additional costs to
LevCap, LevCap shall provide the Client with written notice of the delay and the
resulting costs. The Client shall pay the said costs to LevCap, and any time
limits of performance hereunder shall be extended by the number of days of the
delay.
11. If a dispute concerning the Compensation and/or an invoice arises,
the disputing party shall notify the other party in writing within fifteen (15)
days after receipt of the disputed invoice (hereinafter referred to as "Disputed
Invoice Notice"), and the parties shall discuss in good faith the disputed
issue. In the absence of provision of a Disputed Invoice Notice within such
fifteen (15) day period, the Compensation and/or invoices made hereunder shall
be deemed final and binding.
REPRESENTATIONS, WARRANTIES LIMITATION OF LIABILITY AND INDEMNITY
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12. There are no warranties or representations whether express,
implied, statutory or allegedly extended in any communication between the
parties except as specifically set out in this Agreement.
13. In no event will LevCap be liable for any exemplary, incidental,
indirect, special or consequential damages incurred by the Client during the
term of this Agreement or at any time thereafter, even if LevCap has been
advised of the possibility of those damages or for any claim by any other party.
14. The liability, if any, of LevCap for any reason and upon any cause
of action or claim shall be limited to the amount paid by the Client to LevCap
for the month period immediately preceding the accrual of the action or claim
for the specific service which is the subject of the action or claim. This
limitation applies to all causes of actions or claims in the aggregate.
Furthermore, no cause of action accrued more than six (6) months prior to the
filing of a suit alleging such cause of action may be asserted against LevCap.
15. The Client acknowledges that any and all information, documents,
reports or statements that it provides to LevCap for the purposes of this
Agreement, including but not limited to the provision of the Services and/or
Additional Services, are accurate and does not contain any untrue statement of a
material fact and does not omit or will not omit to state a material fact
necessary to make the statements contained therein not misleading.
TERM AND TERMINATION
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16. The term of this Agreement will commence on October 23, 2000 and
will be automatically renewable unless modified or terminated by either party
with 30 days written notice, every 90 days thereafter for a period of one (1)
year, at which time the term of a new agreement may be negotiated.
17. In the event of the termination of this Agreement LevCap will
submit a final invoice to the Client for the Additional Services rendered up to
the Agreement termination date. The Client agrees to pay the amount of the
invoice submitted within fifteen (15) days of receipt of the said invoice.
GENERAL CONTRACT PROVISIONS
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18. The Client agrees, during and after the term of this Agreement, to
indemnify LevCap against all liability, losses, damages, costs and expenses
(including legal fees on a solicitor and client basis) which are incurred,
suffered or sustained by LevCap as a result of any violation of this Agreement
by the Client, or as a result of any act or omission of the Client or other
persons for whom it is at law responsible.
19. LevCap shall have the sole supervision and direction of the
Services and/or Additional Services covered by this Agreement.
20. The Client hereto agrees that LevCap is an independent contractor
and not the agent, employee or other representative of the Client, and that this
Agreement shall not be construed so as to constitute LevCap a partner, agent,
employee, joint venturer, fiduciary, or representative of the Client for any
purpose whatsoever.
21. If any of the parties hereto are comprised of more than one
individual, corporation or other entity, the obligations of each such
individual, corporation or other entity under this Agreement shall be joint and
several.
22. Notwithstanding any other provision of this Agreement, upon the
failure of the Client to pay to LevCap as and when due any amount owing to them,
LevCap may, at its election, deduct such unpaid amount from any monies or credit
held by LevCap for the account of the Client.
23. Any disclaimer, indemnification, ownership, confidentiality and
Intellectual Property clause in this Agreement shall survive any termination of
this Agreement.
24. The waiver by LevCap of any breach of any provision of this
Agreement shall not be deemed to be a waiver unless expressly set forth in
writing by LevCap, and then such waiver shall be limited to the circumstances
set forth in such written waiver.
25. No party shall be deemed in default hereunder, nor shall it hold
the other party responsible for, any cessation, interruption or delay in the
performance of its obligations hereunder due to causes beyond its reasonable
control. If any such delay occurs, any applicable time period shall be
automatically extended for a period equal to the time lost, as long as the party
affected makes reasonable efforts to correct the reason for such delay and gives
to the other party prompt notice of such delay.
26. The Client acknowledges that they have received, have had an ample
time to read and have read this Agreement and fully understand its provisions.
The Client further acknowledges that they have had an adequate opportunity to be
advised by the legal advisors of their own choosing regarding all pertinent
aspects of this Agreement and the contractual relationship created hereby.
27. THE PARTIES HAVE REQUESTED AND DO HEREBY CONFIRM THEIR REQUEST THAT
THE PRESENT CONTRACT BE IN ENGLISH ONLY.
LES PARTIES DECLARENT QU'ILS ONT EXIGE ET PAR LES PRESENTES CONFIRMENT
LEUR DEMANDE QUE CE CONTRACT SOIT REDIGEE EN ANGLAIS SEULEMENT.
IN WITNESS WHEREOF the parties have executed this Agreement this ___
day of , 2000.
SIGNED, SEALED AND DELIVERED IN ARS NETWORKS INCORPORATED
THE PRESENCE OF:
_________________________________ _____________________________________
Name:____________________________ Name:
Title:
A.S.O.
I have authority to bind the company
SIGNED, SEALED AND DELIVERED IN LEVCAP COMMUNICATIONS INCORPORATED
THE PRESENCE OF:
Name:____________________________ Name:________________________________
Title:_______________________________
A.S.O._______________________________
I have authority to bind the company
