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EXHIBIT 3(A)(3)
CONSULTING AGREEMENT DATED SEPTEMBER 24, 1997
BY AND BETWEEN LASERMEDIA AND ALUDRA SOFTWARE INC.
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CONSULTING AGREEMENT
THIS AGREEMENT made in duplicate this 24th day of September, 1997
between Aludra Software Inc. (the "CONSULTANT") and Lasermedia (the "CLIENT").
In consideration that the Consultant and the Client hereby covenant and
agree, each with the other, as follows:
1. SERVICES RETAINED.
1.1 DESCRIPTION. The Client retains the professional services
of the Consultant to perform certain tasks, to be determined from time
to time, in connection with the development of computer software
products
1.2 MODIFICATIONS. Any modifications to the present agreement
and its effect on the fees and other terms and conditions shall be
described in Schedule "A" hereto which shall form part of the present
agreement. Any modification shall be approved in writing by the Client
prior to its inception and execution.
2. INDEPENDENT CONTRACTOR.
2.1 Nothing contained in this agreement and the relationship
created between the parties hereby shall, directly or indirectly,
constitute the Consultant as agent or servant of the Client and
further, nothing herein shall operate or be construed to relieve the
Consultant of any duties or obligations imposed upon it as an
independent contractor.
2.2 Furthermore, the Consultant hereby agrees that any
authorized representative of the Client shall at all reasonable times
have access to the plan and premises where the work being performed
under this agreement is located and may make any tests or inspection of
all working papers, materials and other work-in-progress as the
authorized representative shall see fit to perform.
3. FEES AND EXPENSES. Consultant services will be invoiced on a monthly
basis to the Client and payable the Client upon receipt of the invoice. Expenses
and costs incurred by the Consultant in the execution of this agreement shall be
preauthorized by the Client, invoiced at cost and supported by the usual
documentation.
4. PERSONNEL. The Consultant shall execute this agreement on a best
effort basis. The Consultant shall provide the services of qualified personnel
of its choice. The Consultant retains the right to appoint and to replace such
personnel at the Consultant's discretion.
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7. SECURITY. The Consultant agrees that its personnel, when using the
Client's premises, will comply with all security regulations in force at those
premises.
8. PROFESSIONAL RESPONSIBILITY. The parties agree that the professional
responsibility of the Consultant under this agreement shall be limited to direct
and actual money damages effectively incurred by the Client; the liability of
the Consultant hereunder shall not in the aggregate exceed the total fees paid
to the Consultant for services rendered under this agreement, regardless of the
number of claims.
In no event shall the Consultant be liable for special, direct or
consequential damages or both, even if the Consultant has been notified of the
possibility of these damages being incurred. The Client waives any claim and
recourse against the Consultant in these instances.
The Client further agrees that the Consultant will not be liable for
any loss of profits nor for any claim against the Client made by any third
party. The Client waives any claim and recourse against the Consultant in these
instances.
9. ENTIRE AGREEMENT. This Agreement constitutes the entire agreement
between the parties with respect to all matters herein contained, and its
execution has not been induced by, nor do any of the parties hereto rely upon or
regard as material, any representations or writings whatsoever not incorporated
herein and made a part hereof. This Agreement shall not be amended, altered or
qualified except by an instrument in writing, signed by all the parties hereto
and any amendments, alterations or qualifications hereof shall not be binding
upon or affect the rights of any party who has not given its consent in writing.
10. HEADINGS. The division of this Agreement into sections and the use
of headings are for convenience of reference only and shall not affect the
interpretation or construction of this Agreement.
11. SEVERABILITY. In the event that any of the provisions herein
contained shall be held unenforceable or declared invalid for any reason
whatsoever, such enforceability or invalidity shall not affect the
enforceability or validity of the remaining provisions of this Agreement and
such unenforceable or invalid portion shall be severable from the remainder of
the Agreement.
12. GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the laws of the Province of Ontario and the laws of Canada in
force therein and any court of competent jurisdiction in Ontario shall have
jurisdiction to adjudicate any matter arising out of this Agreement.
13. NOTICES. All notices, requests, demands or communications made
pursuant to the terms hereof or required or permitted to be given by one party
to another shall be given in writing
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by personal delivery or by registered mail, postage prepaid or by
electronic means of communication, addressed to such other party or delivered to
such other party as follows:
to the Client at: Lasermedia
11 Charlotte Street
Toronto, Ontario M5V 2H5
Attention: Chief Financial Officer
Facsimile: (416) 977-7353
to the Consultant at: Aludra Software Inc.
3701 Chesswood Avenue, Suite 215
Downsview, Ontario M3J 2P6
Facsimile: (416) 638-3252
or at such other address or electronic communication number as may be given by
any of them to the other from time to time and such notices, requests, demands
or other communications shall be deemed to have been received when delivered,
or, if mailed, three (3) business days following the date of mailing thereof,
provided that if any such notice, request, demand or other communication shall
have been mailed and regular mail service shall be interrupted by strikes or
other irregularities, such notices, requests, demands or other communications
shall be deemed to have been received three (3) business days after the day
following the resumption of normal service and if given by electronic
communication, on the day of transmittal thereof if given during the normal
business hours of the recipient and on the business day during which such normal
business hours next occur if not given during such hours on any day. If the
party giving any demand, notice or other communication knows or ought reasonably
to know of any difficulties with the postal system which might affect the
delivery of mail, any such demand, notice or other communication shall not be
mailed but shall be given by personal delivery or by electronic communication.
14. TIME OF THE ESSENCE. Time shall be of the essence.
15. FURTHER ASSURANCES. The parties agree to sign such other
instruments, cause such meetings to be held, resolutions passed and by-laws
enacted, exercise their vote and influence, do and perform and cause to be done
and performed such further and other acts and things as may be necessary or
desirable in order to give full effect to this Agreement.
16. SUCCESSORS AND ASSIGNS. This Agreement shall enure to the benefit
of and be binding upon the parties hereto and their respective successors and
assigns.
17. NON-WAIVER. No waiver by any party of any breach by any other party
of any of its covenants, obligations and agreements hereunder shall be a waiver
of any subsequent breach of any other covenant, obligation or agreement, nor
shall any forbearance to seek a remedy for any breach by a waiver of any rights
and remedies with respect to such or any subsequent breach.
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IN WITNESS WHEREOF, the parties have duly executed this Agreement as of
the date and year first above written.
SIGNED, SEALED AND DELIVERED )
in the presence of )
ALUDRA SOFTWARE INC.
Per:
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Authorized Signing Officer
LASERMEDIA
Per:
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Authorized Signing Officer
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SCHEDULE "A"
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