BETWEEN: the Service Client (the "Company") - and - Departures Capital Inc. (the "Consultant")
WHEREAS the Company wishes to contract with the Consultant for its services on the terms and conditions that follow, and the Consultant wishes to be so retained.
NOW THEREFORE THIS AGREEMENT WITNESSES that in consideration of the mutual covenants and agreements contained herein and good and valuable consideration provided, the parties covenant and agree with each other as follows:
1. Services. The Consultant will provide the Company with the services (the "Services") set forth in Schedule "A" attached hereto. The Consultant shall report to and take direction from the Chief Executive Officer, or such other person as the Chief Executive Officer shall otherwise direct. The Company acknowledges that the Consultant may provide services to other businesses and organizations provided there is no conflict of interest, and the Consultant complies with its obligations under this Agreement.
2. Duration and Termination. The term of this Agreement shall be from the effective date set out above for a period of 6 months or as otherwise stated and may be renewed by mutual agreement or terminated at any time by either party in the event of a material breach of this Agreement by providing written notice to the other party. For purposes hereof, "material breach" means (i) failure by the Consultant to provide the Company with the Services and deliverables set out in Schedule "A"; (ii) a breach by the Consultant of any provision of this Agreement, (iii) the Consultant is charged with committing a criminal offense, or (iv) the Consultant engages in, or is accused of engaging in, conduct which materially impairs (or, if publicized, is likely to materially impair) the reputation of the Company. If this Agreement is terminated as a result of a material breach by the Consultant, the Company shall not be required to make payment to the Consultant.
3. Base Salary. In consideration of the Services provided under this Agreement, the Company agrees to pay the Consultant as follows: The Company shall pay the base services of agreed amount with applicable tax, service rendered for the duration of the term.
4. Refund. All services are non-refundable and non-transferable.
5. Non-Disclosure of Confidential Information. Except in the normal and proper course of the provision of the Services hereunder, or with the prior written consent of the Company, the Consultant will (a) keep in strictest confidence and trust the Confidential Information; and (b) not use for the Consultant’s own account or disclose to anyone else, during or after the termination of this Agreement with the Company, any Confidential Information or material relating to the Company’s operations or business which the Consultant obtains from the Company or any related or affiliated entity or its directors, officers or employees, agents, suppliers or clients or otherwise by virtue of the Consultant’s relationship the Company or any related or affiliated entity. For the purpose of this Agreement, "Confidential Information" means confidential or proprietary information or material and includes, without limitation, the following types of information or material, in whatever form, both existing and contemplated, regarding the Company or any related or affiliated entity: corporate information, including, without limitation, contractual arrangements, marketing plans, production processes, methods and methodologies that are not standard industry practice or that are not generally known, plans, strategies, tables and compilations of business and industrial information acquired by or on behalf of the Company, tactics, policies, resolutions, patents and patent applications, trademark and trade name applications, and any litigation or negotiations; information concerning suppliers; marketing information, including investment and product plans; financial information, including cost and performance data, debt arrangements, equity structure, investors and holdings; operational information, including, without limitation, trade secrets, concepts, data, designs, flow charts, specifications, product plans, technical designs and drawings; and personnel information, including personnel lists, resumes, personnel data, organizational structure and performance evaluations, but does not include information or material that is or becomes generally available or known to the public other than as a result of disclosure by the Consultant in violation of the terms hereof.
6. Intellectual Property. All right, title and interest in all inventions, methodologies, concepts, documentation, specifications and any other works developed by the Consultant in providing the Services (the "Works") including all patent, copyright, trade- mark, trade secret and any other intellectual property and proprietary rights therein (the "Intellectual Property Rights") shall be the sole and exclusive property of the Company and the Consultant hereby assigns and shall assign to the Company all such Intellectual Property Rights and waives all moral rights the Consultant may have in such Works for the benefit of Company and its successor, assigns and licensees. The Consultant shall not disclose the Works to any third parties without the prior written consent of Company.
7. Return of Property. Upon termination of this Agreement, regardless of the reason for such termination, except as required by law, the Consultant shall promptly deliver and return to Company, without retaining copies, all records, notes, notebooks, memoranda, specifications, property and documents or materials of any kind or nature whatsoever which pertain in any way to the Company or its business.
8. Acknowledgements and Covenants. The Consultant acknowledges that, in connection with the Services, the Consultant will receive and will become eligible to receive substantial fees. The Consultant acknowledges that this Agreement and all fees paid will be conferred only because and on condition of the Consultant’s willingness to commit its best efforts and loyalty to the Company, including protecting the Company’s right to have its Confidential Information protected from non-disclosure by the Consultant and abiding by the confidentiality and other provisions herein. The Consultant agrees that the restrictions contained in this Agreement are reasonable and valid and all defenses to the strict enforcement thereof by the Company are waived by the Consultant. The Consultant further acknowledge that irreparable damage would result to the Company if the provisions of divs 4 through 5 are not specifically enforced and agrees that the Company shall be entitled to any appropriate legal, equitable, or other remedy, including injunctive relief, in respect of any failure or continuing failure to comply with the provisions of divs 4 through 5.
The Consultant acknowledges and agrees that all written and oral opinions, reports, advice and materials previously provided and to be provided by the Consultant to the Company in connection with the Consultant’s engagement hereunder are intended solely for the Company’s benefit and for the Company’s uses only, and that any such written and oral opinions, reports, advice and information are the exclusive property of the Company. In this regard the Consultant covenants and agrees that the Company may utilize any such opinion, report, advice and materials for any other purpose whatsoever and, furthermore, may reproduce, disseminate, quote from and refer to, in whole or in part, at any time and in any manner, any such opinion, report, advice and materials in the Company’s sole and absolute discretion.
The Consultant further covenants and agrees that no public references to the Consultant or disclosure of the Consultant’s role in respect of the Company may be made by the Consultant without the prior written consent of the Company in each specific instance and, furthermore, that any such written opinions, reports, advice or materials shall, unless otherwise required by the Company, be provided by the Consultant to the Company in a form and with such substance as would be acceptable for filing with and approval by any regulatory authority having jurisdiction over the affairs of the Company from time to time.
9. Independent Contractor. In performing the Services, the Consultant agrees and acknowledges that the Consultant is an independent contractor under this Agreement. Nothing contained herein shall be deemed or construed to create an employment relationship or any partnership or joint venture between the Consultant and the Company.
Neither party shall acquire by virtue of this Agreement any right, capacity or power to act as an agent for the other or to bind the other to any other person, firm or corporation, except with the written agreement of the other if necessary to carry out the purpose and intent of this Agreement.
The Consultant acknowledges that it is responsible for all payments with respect to all income, sales and other taxes, insured health benefits coverage, workers’ compensation, Employment Insurance premiums and costs and including the procurement and costs of any other benefits.
Compliance with Laws, Regulations, Industry Guidelines and Company Policies. In providing the Services, the Consultant will adhere to all federal, state and provincial legislation and regulations, industry guidelines and Company policy, as applicable.
Indemnification by the Consultant. The Consultant hereby agrees to indemnify the Company, its officers, directors, employees, and agents and save them harmless from any and all liabilities and claims whatsoever as follows:
fines, penalties and interest thereon, for or by reason of or in any way arising out of the failure by the Company to deduct, withhold or contribute any amount in respect of its payments to the Consultant. Such liabilities and claims shall include, without limitation, federal or provincial income and health taxes, Canada Pension Plan and Employment Insurance contributions and premiums, and workers compensation premiums; and
suits, actions, investigations, and proceedings, and related costs and expenses (including legal fees) arising out of or in connection with the delivery of the Services as a result of the Consultant’s gross negligence, willful misconduct or failure to comply with the terms of this Agreement.
This indemnification shall survive the termination of this Agreement for any reason and shall not detract in any way from any other rights or remedies which the Company may have under this Agreement or otherwise in law or equity.
10. Representations. The parties hereby represent and warrant that they have all required corporate power and authority to entire into this Agreement, the entry into, execution and performance of this Agreement has been duly authorized by all necessary corporate action of the parties and this Agreement constitutes a legal, valid and binding obligation of the parties enforceable against each party in accordance with its terms. The parties further represent and warrant that neither is a party to any agreement or business relationship in conflict with its rights and obligations pursuant to this Agreement.
The Consultant will at all times during the term of this Agreement or in connection with the subject matter of this Agreement comply with all applicable laws (including applicable regulations, rules, policies, notices, orders and legislation of all applicable jurisdictions), including with respect to the solicitation of and communication with potential subscribers and any registration or filing requirements.
The Consultant will not make any untrue statement of a material fact nor omit to state a material fact required to be stated or necessary to make any statement not misleading in connection with the subscription by a subscriber for securities of the Company.
The Consultant is properly registered in the jurisdiction in which a subscriber resides in order to be able to solicit an investment in the securities of the Company by a subscriber, or if the Consultant is not registered in the jurisdiction to conduct such activity, it is no required under the laws of the jurisdiction in which the subscriber resides to be registered in order to conduct such activity.
The Consultant represents and warrants that its core competencies are as follows:
Able to apply advanced problem-solving skills and use of judgment based on analyzing and validating data from multiple sources;
Able to demonstrate analytic insights and timeliness in delivering results and recommendations that have an impact;
Able to articulate difficult or sensitive information and provide subject matter advice to senior leaders of the Company;
Excellent written and verbal communication skills; and
Excellent relationship-building skills in the investment community, and the ability to collaborate with the executive team of the Company.
The Consultant represents and warrants that the Consultant is fully experienced and possesses the requisite professional skill, knowledge and experience required to perform the Services; and can fulfill its obligations and duties hereunder. The Consultant has had sufficient opportunity to review and understand (a) the terms of this Agreement, (b) the restrictions as provided in this Agreement and the consequences of the execution of this Agreement, (c) the obligations imposed on the Consultant by this Agreement, and (d) the consequences of any failure to perform and observe such restrictions and obligations. The Consultant has reviewed the terms of this Agreement with legal counsel or other advisors as desired.
11. Collection of Personal Information. The Consultant acknowledges, agrees and consents to the Company’s collection of the Consultant’s personal information for the purpose of fulfilling the transactions contemplated by this Agreement. The Consultant’s personal information may be disclosed by the Company to (a) stock exchanges or securities regulatory authorities, (b) the Company’s registrar and transfer agent, if applicable, (c) Canadian tax authorities, (d) authorities pursuant to the Proceeds of Crime (Money Laundering) and Terrorist Financing Act (Canada) or (e) any of the other parties involved in the issuances of securities of the Company to subscribers or of the Options to the Consultant, including legal counsel, and may be included in record books of the Company. The Consultant hereby consents to the foregoing collection, use and disclosure of the Consultant’s personal information and to the retention of such personal information for as long as permitted or required by law or business practice.
12. Severability. If any one or more of the covenants, agreements, provisions or terms of this Agreement or the application thereof to the Company or the Consultant shall be for any reason and to any extent whatsoever held by any court of competent jurisdiction to be invalid, illegal or unenforceable in any respect, then, such covenants, agreements, provisions or terms shall be deemed severed from the remaining covenants, agreements, provisions or terms of this Agreement and shall in no way affect the validity or enforceability of any other provision of this Agreement.
13. Waiver. No waiver shall be inferred from or implied by any failure to act or delay in acting by a party in respect of any default, breach or non-observance or by anything done or omitted to be done by the other party. The waiver by a party of any default, breach or non-compliance under this Agreement shall not operate as a waiver of that party’s rights under this Agreement in respect of any continuing or subsequent default, breach or non-observance (whether of the same or any other nature).
14. Assignment. This Agreement may not be assigned by the Company or the Consultant, without the consent of the other party, which shall not be unreasonably withheld. This Agreement shall ensure to the benefit of and shall be binding upon the parties and their respective successors and assigns.
15. Entire Agreement. This Agreement is the final, complete and exclusive agreement of the parties with respect to the subject matter hereof and supersedes and merges all prior discussions and agreements. No modification of or amendment to this Agreement, nor any waiver of any rights under this Agreement, will be effective unless in writing and signed by the party to be charged. Any subsequent change or changes in the Services will not affect the validity or scope of this Agreement.
16. Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the Province of British Columbia and the federal laws of Canada applicable therein. The parties consent to the exclusive jurisdiction of the Courts of the Province of British Columbia for the purpose of enforcing this Agreement.
17. Counterparts. This Agreement may be executed in counterparts, including by way of facsimile or electronically delivered portable document format (PDF) of an executed copy of this Agreement, each of which will constitute an original and all of which taken together will constitute one and the same instrument.