Attached files
Exhibit 10.4
CONSULTING AGREEMENT
This Agreement made with effect from 16th day of October 2010 (the "Effective
Date"), among:
ADD- ON (Add-On Exchange INC.), a company having an office at address:
410 Park Avenue, Suite 1981, New York, NY, 10022 (the "Company")
And:
JOHN RAFUSE, an executive business development consultant, having an
address at REDACTED ("Rafuse)
(Rafuse is also referred to as "Consultant")
Whereas:
1. The Company and Rafuse agree that this agreement replaces any prior
agreements between them and previous termination clauses are mutually
cancelled; and
2. The Company has agreed to retain Rafuse to provide certain consulting
services as outlined in Appendix 1 ("Service" or the "Services") and Rafuse
has agreed to provide such services to the Company in accordance with the
terms and conditions contained herein;
3. Rafuse will perform the Services to be provided by Rafuse to the Company;
and
4. The Company has also requested that Rafuse commit to obligations of
confidentiality as a condition to being engaged to perform the Services and
Rafuse and the Contractor have agreed to do so;
NOW THEREFORE THIS AGREEMENT WITNESSES THAT in consideration of the mutual
promises and covenants herein contained the parties hereby covenant and agree as
follows:
GENERAL TERMS AND CONDITIONS
DEFINITIONS
1. Unless the context requires otherwise, the following terms shall have the
meanings set out below when used in this Agreement:
A) "CONFIDENTIAL INFORMATION" means trade secrets and other information,
in the possession of or owned by Add-on or companies or organizations
affiliated, associated or related to Add-on, or by their respective
suppliers, customers, or other existing or potential business partners
and collaborators, that is not generally known to the public and
including, without limitation, all Developments, research results, and
related documentation, financial information, legal, corporate,
marketing, product, technical, manufacturing, personnel, customer, and
supplier information and any other information, in whatever form or
media, specifically identified as confidential by Add-on, the nature
of which is such that it would generally be considered confidential in
the industry in which Add-on operates, or that Add-on is obligated to
treat as confidential or proprietary;
B) "DEVELOPMENTS" means all inventions, improvements, enhancements,
modifications, discoveries, formulae, processes, ideas, techniques,
systems, methods, algorithms, Deliverables, computer software, and any
other direct or indirect results of the Services or other work
performed by Consultant for Add-on; and
C) "SERVICES" means the services to be performed by Consultant under this
Agreement, as may be specified in Schedule "1" to this Agreement, and
which shall include, without limitation, the delivery to Add-on of all
Deliverables.
PARTICULARS OF SERVICES
2. GENERAL OBLIGATIONS OF THE PARTIES - Consultant shall perform the Services
and Add-on shall pay Consultant for the Services in accordance with the
terms and conditions set out in this Agreement, including in Schedule "1"
hereto.
3. NATURE OF DELIVERABLES - "SERVICES" also includes, without limitation, the
delivery to Add-on of all Deliverables. If the Deliverables include any
item(s) of software, the Deliverables shall be deemed to include, in both
source code and object code forms, the final version and all preliminary
versions of the software and all routines and subroutines, as well as all
program material, flowcharts, models, notes, outlines, work papers,
descriptions, and other documents created or developed in connection
therewith, the resulting screen formats and other visual effects of the
software.
4. TERM OF AGREEMENT - This Agreement shall be deemed to have come into force
and effect as of the reference date set out above and continues in effect
until the end of the Term identified in Schedule "1" .
5. PROJECT MANAGER - The Project Manager (as identified in Schedule "1") shall
be Consultant's primary contact at Add-on.
6. PAYMENT - As full and complete consideration for the performance of the
Services, Add-on shall pay Consultant the Fees set out in Schedule "1".
7. REIMBURSEMENT OF EXPENSES - Consultant may submit invoices for a
reimbursable expense for up to six months after the expense is incurred.
Each such invoice must be accompanied by the appropriate receipts. Add-on
shall reimburse such expenses within thirty (7) calendar days after receipt
by Add-on of proper invoices and receipts. Add-on shall have no obligation
to reimburse Consultant for any expense that is not submitted to Add-on in
accordance with this section.
INDEPENDENT CONTRACTOR STATUS
8. NATURE OF RELATIONSHIP - Consultant shall perform the Services as an
independent contractor and not as an employee. Nothing contained in this
Agreement shall be construed to create or imply a joint venture,
partnership, principal-agent, or employment relationship between the
parties. Unless the Project Manager specifically authorizes Consultant in
writing to do so, Consultant shall not act or purport to be acting as the
legal agent of Add-on, and Consultant shall not enter or purport to enter
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into any agreement on behalf of Add-on or otherwise bind or purport to bind
Add-on or cause Add-on to incur liability in any manner whatsoever.
WARRANTIES AND INDEMNIFICATION
9. REPRESENTATIONS AND WARRANTIES - Consultant represents and warrants to, and
covenants with, Add-on that:
ABILITY TO PERFORM SERVICES
a) Consultant has the necessary knowledge, experience, and skills to
perform the Services which are hereby acknowledged by Add-on;
b) Consultant has the absolute right to make the assignments of the
right, title, and interest in and to the Developments contemplated in
this Agreement;
QUALITY OF PERFORMANCE
c) the Services will be performed in a competent and professional manner;
d) Consultant shall, in exercising his powers and performing his
functions, act honestly and in good faith and in the best interests of
the Company, shall exercise the care, diligence and skill of a
reasonably prudent person, shall devote such business time to the
business and affairs of the Company as may be required under the
conditions stipulated in Schedule 1 to discharge his duties, and
perform faithfully and efficiently such responsibilities;
e) any Deliverable supplied under this Agreement shall have no material
inherent defects, shall, at the time of its delivery, conform to and
operate in accordance with all specifications for such Deliverable as
may be set out in Schedule "1" or otherwise provided to Consultant by
Add-on and all specifications for such Deliverable generated by
Consultant and approved by Add-on;
f) the Company acknowledges that Consultant provides services to other
parties and Consultant covenants to provide the Services to the
Company as stipulated in Schedule 1;
THIRD PARTIES
g) the performance of this Agreement will not breach any other agreement
entered into by Consultant or by which Consultant is bound;
h) Consultant has not brought to Add-on, nor shall use in the performance
of the Services, any confidential material or documents of any former
client or employer of Consultant, or of any other third party, unless
Consultant has received prior written authorization to do so from
Add-on and from the owner of the confidential material or documents;
i) all Developments will be original to Consultant and, to the best of
Consultant's knowledge, will not infringe the intellectual property
rights or other rights of any third party;
10. INDEMNIFICATION OF CONSULTANT - Subject to any limitations or restrictions
relating to Section 12 - Officers Liability Insurance and for the period of
time hereunder Rafuse acts as Chief Executive Officer and/or Director of
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the Company, Add-on shall indemnify the Consultant against all costs,
charges and expenses, including an amount paid to settle an action or
satisfy a judgement, reasonably incurred by the Consultant in respect of
any civil, criminal or administrative action or proceeding to which the
Consultant is made a party by reason of being or having been a Consultant
to the Company, if:
a) Consultant acted honestly and in good faith with a view to the best
interests of the Company; and
b) in the case of a criminal or administrative action or proceeding,
including without limitation a proceeding by a securities regulatory
authority including a stock exchange, that is enforced by a monetary
penalty, the Consultant had reasonable grounds for believing that his
conduct was lawful.
11. DIRECTORS & OFFICERS LIABILITY INSURANCE - Throughout the applicable
portion of the term of this Agreement that the Consultant acts as an
officer and/or director of the Company, the Company shall use reasonably
commercial efforts to provide the Consultant with officer's liability
insurance appropriate to the stage of development of the Company and the
nature of the Consultant's responsibilities under this Agreement.
TERMINATION OF AGREEMENT
12. TERMINATION OF AGREEMENT FOR CONVENIENCE - Notwithstanding any other
provision in this Agreement, either Add-on or Consultant may terminate this
Agreement at any time for convenience provided that either such party
delivers to the other written notice of its intention to do so at least
ninety (90) calendar days prior to the effective date of termination.
13. PAYMENT UPON TERMINATION FOR CONVENIENCE - If Add-on terminates this
Agreement for convenience, Add-on shall pay Consultant up to the effective
date of termination plus the value of one additional year of monthly fees.
Rafuse will retain any shares, options or warrants.
14. TERMINATION OF AGREEMENT WITH CAUSE - Notwithstanding any other provision
in this Agreement, Add-on may terminate this Agreement effective
immediately upon delivery of notice of termination to Consultant if:
a) Consultant commits a material breach of this Agreement, or
consistently fails to properly perform and observe Consultant's
obligations under this Agreement, and fails to rectify the situation
within thirty (30) calendar days after Add-on delivering notice of the
breach or consistent failure to perform;
b) Consultant becomes insolvent, or a receiver or receiver-manager is
appointed for any part of the property of Consultant, or Consultant
makes an assignment, proposal, or arrangement for the benefit of its
creditors or Consultant files an assignment in bankruptcy, or any
proceedings under any bankruptcy or insolvency laws are commenced
against Consultant.
15. PAYMENT UPON TERMINATION FOR CAUSE - If Add-on terminates this Agreement
for any cause whatsoever, it shall pay to Consultant all monies up to and
including the last month of the term set out and described as "termination
date" in schedule "1" plus the value of one additional year of monthly
fees. Rafuse will retain all granted shares, options and warrants. This is
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regardless as to whether Add-on wishes to dispense of the services during
any part of the set time laid out in schedule "1" as being between the
start date and termination date.
16. RETURN OF MATERIALS, EQUIPMENT, AND CONFIDENTIAL INFORMATION - Upon
termination or expiration of this Agreement, or at any time upon request by
Add-on, Consultant shall immediately deliver up to Add-on, at Consultant's
own expense and risk,
a) all Developments in Consultant's possession, charge, control, or
custody; and
b) all Confidential Information and all copies thereof, and all other
materials, documents, information, contracts, equipment, materials,
and property, in Consultant's possession, charge, control, or custody
that are owned by, or related in any way to the business or affairs of
Add-on.
Consultant shall return any equipment, materials, or property furnished by
Add-on to Consultant in the same condition in which they were furnished by
Add-on, reasonable wear and tear excepted. Add-on agrees to reimburse the
Consultant for any reasonable shipping costs incurred to comply with the
foregoing.
CONFIDENTIALITY
17. CONFIDENTIAL INFORMATION - Consultant acknowledges that in order to enable
Consultant to perform the Services, Add-on will disclose to Consultant, or
allow Consultant access to, Confidential Information. Consultant further
acknowledges that such information is of significant value to Add-on.
18. EXCLUSION - The non-disclosure obligations of Consultant under this
Agreement shall not apply to Confidential Information that Consultant can
establish:
a) is, or becomes, readily available to the public other than through a
breach of this Agreement;
b) is disclosed, lawfully and not in breach of any contractual or other
legal obligation, to Consultant by a third party; or
c) through written records, was known to Consultant, prior to the date of
first disclosure of the Confidential Information to Consultant by
Add-on.
19. OWNERSHIP OF CONFIDENTIAL INFORMATION - Consultant acknowledges that
Confidential Information is and shall be the sole and exclusive property of
Add-on or its designate and that Consultant shall not acquire any right,
title, or interest in or to any Confidential Information.
20. DISCLOSURE - Consultant shall keep all Confidential Information strictly
confidential and shall take all necessary precautions against unauthorized
disclosure of the Confidential Information during the term of this
Agreement and thereafter. Without limitation, Consultant shall not,
directly or indirectly, disclose, allow access to, transmit or transfer
Confidential Information to a third party without Add-on's consent.
Notwithstanding the foregoing, to the extent that Consultant can establish
it is required by law to disclose any Confidential Information, it shall be
permitted to do so, provided that notice of such requirement to disclose is
first delivered to Add-on, so that it may contest such potential
disclosure.
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21. USE AND REPRODUCTION - Consultant shall not use or reproduce Confidential
Information in any manner except as reasonably required to fulfil the
purposes of this Agreement. Consultant shall ensure that any such copies of
Confidential Information are clearly marked or otherwise identified as
confidential and proprietary to Add-on, and that all Confidential
Information and copies thereof are stored in a secure location while in
Consultant's possession, control, charge, or custody.
22. BREACH NOTIFICATION - If for any reason Consultant does not comply with or
anticipates that it will be unable to comply with the confidentiality and
privacy provisions of this Agreement in any respect, or if Consultant
becomes aware of an actual, anticipated, or threatened breach of security
of or misuse of any Confidential Information (an "INCIDENT"), Consultant
shall promptly notify Add-on of the particulars of the Incident and of the
steps it proposes to take to prevent the occurrence or recurrence of any
further Incident.
23. PERSONAL INFORMATION - Consultant shall (i) collect, use, disclose, and
retain Personal Information only as required to fulfil its obligations
hereunder, (ii) take appropriate measures to ensure the privacy and
security of all Personal Information, including taking measures to prevent
unauthorized access, collection, use, disclosure, copying, modification, or
disposal, and (iii) comply with all applicable laws or regulations related
to privacy or data protection. In this Agreement, "PERSONAL INFORMATION"
means information about an identifiable individual that is transferred to,
collected or compiled by, or otherwise held or accessed by Consultant for
or on behalf of Add-on.
OWNERSHIP OF DEVELOPMENTS AND LICENSING OF CONSULTANT'S PROPERTY
24. OWNERSHIP OF DEVELOPMENTS - Add-on shall be the exclusive owner of the
Developments and of all intellectual property rights in and to such
Developments. Consultant hereby assigns to Add-on all right, title, and
interest throughout the world, including without limitation, all copyright,
trade-marks, trade secrets, patent rights, and any other intellectual
property right in and to each Development, effective at the time each is
created. Consultant covenants that Consultant shall not, either during the
term of this Agreement or thereafter, directly or indirectly, contest, or
assist any third party to contest, Add-on's ownership of the Developments
or of any intellectual property rights related thereto. Consultant hereby
waives his or her moral rights in each Development, effective at the time
any such particular Development is created.
25. DISCLOSURE OF DEVELOPMENTS - Consultant agrees to make full and prompt
disclosure of all Developments to the Project Manager.
MISCELLANEOUS
26. RIGHT TO USE CONSULTANT'S NAME AND LIKENESS - During the term of this
Agreement, the Consultant hereby grants to Add-on the right to use the
Consultant's name, likeness and/or biography in connection with the
Services performed by the Consultant and in conjunction with acting in the
capacity of Chief Financial Officer of Add-on under this Agreement and in
connection with the advertising or exploitation of any project with respect
to which the Consultant performs services for the Company.
27. INFORMATION REGARDING AGREEMENT - Consultant shall not, without the prior
written consent of Add-on, disclose or advertise in any manner the nature
of the Services performed under this Agreement or the fact Consultant has
entered into this Agreement with Add-on.
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28. ASSIGNMENT, SUBCONTRACTING, AND SUCCESSION - Consultant shall not assign
this Agreement or subcontract or purport to assign or subcontract any of
Consultant's rights or obligations under this Agreement without first
obtaining Add-on's written consent. If such consent is given on any
particular occasion, it shall still be required for all subsequent
assignments and subcontracts. Add-on may assign this Agreement or its
rights hereunder, in whole or in part. This Agreement shall be binding upon
the parties hereto and their respective lawful successors and permitted
assigns.
29. SEVERABILITY - If any one or more of the provisions of this Agreement shall
for any reason be held to be illegal, in any respect, any such provision
shall be severable from this Agreement, in which event this Agreement shall
be construed as if such provision had never been contained herein.
30. NOTICE - Any notices, reports, or other communications required or
permitted to be given under this Agreement shall be in writing and shall be
sufficient if delivered by hand or sent by double registered mail, courier,
or facsimile addressed to Add-on or Consultant at their respective
addresses shown on the first page of this Agreement, to the attention of
the Project Manager in the case of Add-on, or to such other address or
individual as one party advises the other party in writing. Any such
notices, reports, or other communications shall be deemed to have been
received by the party(ies) to whom they were addressed upon delivery by
hand, double registered mail, courier, or facsimile (provided that the
receiver acknowledges receipt of the facsimile in some fashion) when
received.
31. WHOLE AGREEMENT/MODIFICATION - This Agreement is comprised of this document
and the attached Schedule "1". In the event of any conflict or discrepancy
between this document and Schedule "1", the terms of this document shall
govern unless the language in Schedule "1" indicates that it is the
specific intent of the parties to overrule a particular provision of this
document. Further, this Agreement constitutes the whole agreement with
respect to the matters contemplated hereby, and there are no
representations, warranties, conditions, or collateral agreements between
the parties with respect to such matters except as expressly set out
herein. No amendment, modification, supplement, or other purported
alteration of this Agreement shall be binding upon a party unless in
writing signed by it or on its behalf by a duly authorized
representative(s). This Agreement supersedes all previous dealings,
communications, understandings, and expectations of the parties.
32. SURVIVAL - Any provision of this Agreement that expressly states it is to
continue in effect after termination or expiration of this Agreement, or
that by its nature would survive the termination or expiration of this
Agreement, shall do so.
33. GOVERNING LAW - This Agreement shall be governed by and interpreted in
accordance with the laws of the province of British Columbia, excluding
rules of private international law that lead to the application of the laws
of any other jurisdiction. The courts of British Columbia shall have the
non-exclusive jurisdiction to hear any matter arising in connection with
this Agreement.
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34. COUNTERPARTS - This Agreement may be executed in counterparts, or facsimile
counterparts, each of which when executed by either of the parties shall be
deemed to be an original and such counterparts shall together constitute
one and the same Agreement.
The parties executed this Agreement on the date(s) set out below after having
the opportunity to discuss this Agreement with their legal advisors. Each party
represents and warrants that its respective signatory is duly authorized to
execute this Agreement on its behalf.
ADD-ON RAFUSE
By: /s/ John Parkinson By: /s/ John Rafuse
------------------------------ ------------------------------
Name: John Parkinson Name: John Rafuse
------------------------------ ------------------------------
Title: CFO
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Date: October 16th 2010 Date: October 15th 2010
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SCHEDULE "1"
PARTICULARS OF CONSULTING AGREEMENT
BETWEEN ADD-ON
AND RAFUSE
1. SERVICES:
(a) Description of Services:
Services and duties will include, but are not limited, the following:
* Perform the role of CEO and partake in all the accompanying
duties and responsibilities
* Perform the role of a Director on the Board of Directors and
partake in all of the accompanying duties and responsibilities
* Perform the role of Board Secretary and partake in all the
accompanying duties and responsibilities
* Design, Develop, Implement and manage business plans, lines,
operations, products, projects and timelines
* Actively engage, promote and manage business development, sales
and beneficial partnerships for the company
* Advise and help in obtaining further investor finance from 3rd
parties as and when the company requires and assist with investor
relations and the go-public strategy and implementation
* Operate and maintain office in Victoria, BC Canada
(b) Locations(s) where work to be performed: Initially, the Services will
be primarily performed at the Consultant's offices located in
Victoria, BC. When a final business and product plan is put in place
the consultant may elect to work out of a furnished office space
provided by the company in Victoria for team management purposes.
2. TERM:
(a) Start Date: October 16th, 2010
(b) Renewal Date: October 15th, 2011-, (12 calendar months).
(c) Renewal Terms: This agreement will renew annually for 1 year
increments unless intent not to renew to be provided 90 days in
advance of Renewal Date by either party. If not renewed by the
company, Payment Upon Termination of Convenience terms apply.
3. PROJECT MANAGER:
Add-on's Board of Directors
4. FEES:
The "Fees" for the Services provided will be $8,000 USD per month (plus
applicable taxes) paid bi-monthly of in payments of $4,000 on the 15th and
the end of each calendar month. If the company becomes publically tradable,
or receives funding in excess of $2,000,000 while privately held from the
start of this contract, these fees will become $10,000 per month. In
addition, a lump sum of $5,000 will be paid each year in lieu of health
benefits.
5. STOCK OPTIONS AND OTHER BENEFITS
At the board's discretion, incentives may be granted after the start date
and are subject to this agreement
6. TIME OFF
Rafuse is granted 4 weeks of time off, in addition to time off for relevant
statutory holidays to his locale. Rafuse will work with the board and
senior executive to ensure continuity of business during such periods. Time
off taken will not reduce the monthly fees.
7. EXPENSES
Company shall reimburse Rafuse for all office equipment and travel
(airfare, accommodation and meals), phone, fax, supplies, courier, mileage,
parking, etc. expenses incurred in relation to performing Services under
this Agreement, as well for any monies paid on by Rafuse on behalf of
company for the purposes of the company's business
