Exhibit 10.3
Consultant Agreement
Agreement Commencement Date: May 1, 2002
C.M.C.
Management, Incorporated
Project & Management Consulting
000 Xxxxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
(000) 000-0000
Agreement Termination Date: May 1 , 2004
Per Clause 4 of this Agreement
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B E T W E E N:
Name: C.M.C. Management, Incorporated
Project & Management Consulting
000 Xxxxxxx Xxxxxx
Xxxxxxxxxx, 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 10.
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It is hereby agreed and initialled by both parties that Clause
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10. Insurance shall not apply or have effect in this Agreement
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For CyPost C.M.C. Management,
Incorporated
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2. The Company shall.
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Allow the use of existing 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 two hundred
fifty U.S. dollars per hour, (USD 250.00/hour), billable in
15 minute increments for Services provided and billed on the
first (1st) day of each 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 by the Company.
(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 CEO or his designated person at
the Company.
4. Term.
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This Agreement shall commence on the Date of Commencement of Term, and
shall remain in effect from month to month until the 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 X. Xxxxx . Witness /s/ JTW. Xxxxxxxx
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Xxxxxxx X. Xxxxx, President JTW Xxxxxxxx
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(Print name) (Print Name)
CyPost Corporation /s/ Xxxxx Xxxxxxx.
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Xxxxx Xxxxxxx
Position: Chief Executive Officer
July 24, 2002
Xx. Xxxxx Xxxxxxx - Managing Director
CyPost Corporation
000-0000 Xxxx Xxxxxxx Xxxxxx
Xxxxxxxxx, XX, Xxxxxx
X0X 0X0
Re: Consultant Agreement Clarification
Dear Xx. Xxxxxxx;
I, Xxxxxxxx X. Xxxxx, was assigned the above referenced contract from CMC
Management, Inc. to conduct consulting services for your organization. I,
personally, will perform all services for CyPost Corporation as referred above.
Very truly yours,
/s/ Xxxxxxx X. Xxxxx
Xxxxxxx X. Xxxxx
