INDEPENDENT CONTRACTOR AGREEMENT
THIS
AGREEMENT made, entered into and effective as of May 1, 2007 (the
“Effective Date”).
BY AND
BETWEEN:
Portlogic Systems Inc. , a company duly incorporated under
the laws of the State of Nevada (the "Company")
AND
:
Javed
Mawji of 402-281 Mutual Street, Toronto, Ontario, Canada, M4Y
3C4 (the "Consultant")
NOW
THEREFORE IN CONSIDERATION of the mutual covenants and agreements
hereinafter contained and for other good and valuable consideration
(the receipt and sufficiency of which is acknowledged by each
party), the parties agree as follows:
ARTICLE 1: SERVICES AND PAYMENT
1.1. The
Company engages the Consultant as an independent contractor to
provide services described in Schedule ‘A’ attached
hereto (the “Services”), and the Consultant agrees to
perform such Services.
1.2. The
Company will pay to the Consultant the fees indicated in Schedule
‘A’ (the “Fees”), in full payment and
reimbursement for providing the Services and for necessary expenses
incurred in connection therewith, in the manner and at the times
set out in Schedule ‘A’ attached hereto, and the
Consultant will accept such fees and expenses as full payment and
reimbursement as aforesaid.
ARTICLE 2: TERM AND TERMINATION
2.1. The
term of this Agreement shall commence on the Effective Date set
forth on the first page, and terminate after 6 months following the
Effective Date, unless terminated prior to that date pursuant to
this Article 2 (the “Term”).
2.2.
Notwithstanding any other provision of this Agreement, this
Agreement may be terminated by either party giving, at any time,
and for any reason, thirty (30) days prior written notice of
termination to the other party, and if this Agreement is so
terminated the Company will be under no further obligation to the
Consultant except to pay to the Consultant such fees and expenses
as
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the Consultant may be entitled to receive for Services provided to
the date this Agreement is so terminated.
2.3.
Notwithstanding any other provision of this Agreement, if:
(a) the
Consultant fails to comply with any provision of this Agreement;
or
(b) any
representation or warranty made by the Consultant in this Agreement
is untrue or incorrect;
(c) the
Consultant breaches any covenant in this Agreement; or
(d) unless
given the express written consent of a majority of the Board of
Directors of the Company (excluding the Consultant if he is a
member of the Board of Directors), the Consultant fails to perform
the Services required in full for any consecutive period of 10
calendar days,
then, and
in addition, to any other remedy or remedies available to the
Company, the Company may, at its sole discretion and option,
terminate this Agreement immediately upon written notice of
termination to the Consultant, and if such option is exercised, the
Company will not be under any further obligation to the Consultant
except to pay to the Consultant such fees and expenses as the
Consultant may be entitled to receive for Services provided to the
date this Agreement is so terminated.
2.4.
Notwithstanding any other provisions of this Agreement, the
provisions of Articles 5, 6, 7, and 8 of this Agreement and all
obligations of each party that have accrued before the effective
date of termination of this Agreement that are of a continuing
nature will survive termination or expiration of this
Agreement.
ARTICLE 3: INDEPENDENT CONTRACTOR
3.1. The
Consultant will be an independent contractor and not the servant,
employee or agent of the Company, it being recognized, however,
that to the extent the provisions of this Agreement result in the
creation of an agency relationship to allow the Consultant to
perform certain of the Services on behalf of the Company, then the
Consultant will, in that context, be the agent of the Company, as
the case may be.
3.2. The
Board of Directors of the Company may, from time to time, give such
instructions to the Consultant as it considers necessary in
connection with the nature of the Services that the Consultant is
required to provide, which instructions the Consultant will follow,
but the Consultant will not be subject to the control of the Board
of Directors of the Company in respect to the manner in which such
instructions are carried out.
3.3. The
Consultant will promptly pay, and be solely responsible for paying,
as the same become
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due and payable as a result or consequence of monies paid or
payable by the Company to the Consultant pursuant to this
Agreement, all amounts payable pursuant to applicable tax statutes,
workers’ compensation or workplace safety and insurance
statutes, pension plan statutes, and any other taxes, statutory
deductions, contributions, and assessments on income required by
the State of Nevada, the Province of Ontario, the Government of
Canada, the Government of the United States, and any other
government or regulatory authority, agency or body.
3.4. The
Consultant agrees to indemnify and save harmless the Company and
every member of the Company’s Board of Directors against and
for all and any claims, assessments, penalties, interest charges
and legal fees and disbursements and taxes incurred as result of
having to defend same made against the Company or any member of the
Company’s Board of Directors as a result of the
Consultant’s failure to comply with Article 3.3 of this
Agreement, or as a result of any decisions or investigations made
by any government agency or body in connection with the
relationship between the parties hereto.
3.5. The
Consultant, as an independent contractor, is not entitled to
participate in any benefits or pension plan provided by the Company
to any of its employees. The Consultant will not receive any of the
following or similar payments from the Company: vacation pay;
holiday pay; sick pay; overtime pay; benefits; automobile allowance
or company car; or (unless authorized in writing by a majority of
the Board of Directors of the Company excluding the Consultant if
he is a member of the Board of Directors) expense
reimbursement.
3.6.
Subject to compliance with the provisions of this Agreement, the
Consultant may, at any time or times during the Term, carry on the
business of providing services to the general public either alone
or in association or partnership with another or others, so long as
such provision of services does not: create a conflict of interest
with the interests of the Company; hinder the Consultant from
providing the Services to the Company; or prevent the Consultant
from providing the Services in a timely and competent manner.
3.7. The
Consultant will not in any manner whatsoever commit or purport to
commit the Company to the payment of any money to any person except
with the prior written permission of the Company.
3.8. The Consultant shall maintain, provide, and retain
at the Consultant’s own expense entirely, such offices,
facilities, and equipment as are necessary to perform the Services,
but shall be required upon request of the Company, perform the
Services at the Company’s premises and/or using the
Company’s equipment. Unless express permission is given by
the Company, the Consultant shall not remove any of the
Company’s equipment from the Company’s premises.
3.9.
Subject to Article 4.4 of this Agreement, the Consultant shall be
responsible for supplying and paying for the Consultant’s own
office support staff, if any, in which case the Consultant shall
comply with the requirements of Articles 4.2 and 4.3 of this
Agreement.
3.10. The
Consultant shall, at the Consultant’s own cost, obtain and
maintain in force throughout
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the Term of this Agreement all certifications and licenses
necessary to qualify the Consultant in connection with providing
the Services in a lawful manner.
ARTICLE 4: ASSIGNMENT AND CONSULTANT STAFF
4.1. The
Consultant will not, without the prior written consent of the
Company, assign or transfer this Agreement, in whole or in
part.
4.2. Any
and all personnel hired by the Consultant, as employees,
consultants, agents, subcontractors or otherwise (collectively the
"Staff") shall be the responsibility of the Consultant. The
Consultant agrees to inform all Staff in writing at the time that
such Staff are hired by the Consultant that such Staff are not
employees of the Company and that the Company has no present or
future obligation to employ such Staff or provide such Staff with
any compensation or employment benefits. The Consultant will be
solely responsible for the acts of such Staff and the Staff will
conduct their activities at the Consultant's risk, expense, and
supervision. The Consultant warrants and covenants that the Staff
shall be subject to all of the obligations applying to the
Consultant pursuant to this Agreement.
4.3. No
contract entered into between the Consultant and any Staff will
relieve the Consultant from any of the Consultant’s
obligations under this Agreement or impose any obligations or
liability upon the Company to any Staff.
4.4.
Notwithstanding any other provision of this Agreement, the Company
reserves the right to restrict or prohibit the engagement of any
Staff hired by the Consultant to assist with providing the
Services, if the Company reasonably deems that such person is
impairing or will impair the execution or completion of the
Services in a competent or timely manner.
ARTICLE 5: OWNERSHIP AND RETURN OF PROPERTY
5.1. All
property including, but not limited to, files, manuals, equipment,
securities, and monies of any and all customers of the Company
related to the provision of the Services that are, from time to
time, in the possession or control of the Consultant will be, at
all times, the exclusive property of the Company. The Consultant
shall forthwith deliver all aforesaid property to the Company on
the earlier of:
(a) the
termination of this Agreement;
(b) the
completion by the Consultant of the provision of the Services;
and
(c) upon
the request, at any time, by the Company.
5.2. The
Consultant agrees that upon termination of this Agreement, he shall
at once deliver to
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the Company all books, manuals, reports, documents, records,
effects, money, securities, whether in print or stored
electronically, or other property belonging to the Company or for
which the Company is liable to others which are in the
Consultant’s possession, charge, control or custody.
ARTICLE 6: CONFIDENTIALITY
6.1. The
Consultant acknowledges and agrees that the Company has certain
confidential information which is defined to include, but not
limited to, knowledge of trade secrets whether patented or not,
computer programs, research and development data, testing and
evaluation plans, business plans, opportunities, forecasts,
products, strategies, proposals, suppliers, sales, manuals, work
programs, financial and marke
