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AGREEMENT
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Dated this 1st day of September 2004
BETWEEN NARROWSTEP LTD whose registered offices are at Xx0 Xxxxxxxxxx Xxxx
Xxxxxx, Xxxxxx X0X 0XX ("the Client")
AND
ADAMAO LTD of 00 XXXXXXXX XXXXX. XXXXXXX, XXXXX, XX00 0XX, XXXXXXX
("the Contractor")
WHEREAS
The Client wishes to appoint the Contractor to provide the services set out in
Schedule 1 (the "Services") and the Contractor wishes to supply the Services
under the terms of this agreement (including its schedules (the "Agreement" or
"Contract").
IT IS HEREBY AGREED AS FOLLOWS:
1. SERVICES
1.1 The Contractor will provide the Services to the Client in accordance
with the Clients' reasonable instructions at such times and places end
in accordance with such standards as the Client shall reasonably
require.
1.2 The Contractor warrants that he is qualified to provide these services.
1.3 The Contractor warrants that he is free to enter into this Agreement and
that in doing so he will not be in breach of any obligation to any third
party.
1.1 In supplying the Services the Contractor agrees to comply with the
reasonable requirements of the Client and to advise the Client whenever
it considers that the Client's requirements may be unsuitable or
undesirable for whatever reason.
1.2 The Contractor represents, warrants and undertakes to the Client that:
(a) the Services shall meet in all material respects the Client's
requirements as described to the Contractor (in Schedule 1 or
otherwise);
(b) there is no third party whose consent is necessary in order for
the Client to exercise the rights granted or purported to be
granted to it by the Contractor pursuant to and in the terms of
this Agreement; and
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(c) it shall perform the Services with reasonable skill and care and
shall give priority to the provision of the Services over other
business activities undertaken by the Contractor.
1.6 The Contractor shall perform and deliver the Services within such
timescales as are agreed between the parties (such agreement not to be
unreasonably withheld by the Contractor.) For the avoidance of doubt,
time shall be of the essence in relation to all timescales in this
Agreement associated with the Contractor.
1.7. The Contractor shall keep detailed records of all acts and things done
by it in relation to the provision of the Services and at the Client's
reasonable request shall make them available for inspection and provide
copies to the Client.
1.8 The Contractor acknowledges that it shall ensure that any equipment,
software or property located on the Client's premises are covered by an
insurance policy held in its name or the name of the owner of that
equipment, software or property. To the maximum extent permitted by
applicable law the Client excludes all liability to the Contractor, its
agents, or sub-contractors in respect of loss of or damage to equipment,
software or property which is incurred on premises controlled by the
Client.
1.9 The Contractor may send a substitute or delegate to perform the services
subject to approval from Client. Where a substitute or delegate is sent
by the Contractor all parts of this Agreement, jointly and severally
shall apply to the substitute. The Contractor is solely responsible for
arranging payments to the substitute or delegate and the delegate is
answerable only to the Contractor. Should the Client decline approval
for the use of a substitute then this Agreement will be terminated
subject to clause 7 of this document.
1.10 The Contractor undertakes that any substitute shall be suitably
qualified and will be fully briefed and trained at the Contractor's
expense.
2. DURATION
This Agreement shall commence on the date at the head of this Agreement
until terminated under these terms and conditions.
3. FEES
3.1 In consideration of the provision of the Services the Contractor will be
paid the fees set out in Schedule 1.
3.2 The Contractor will invoice monthly and all fees will be due and settled
immediately on receipt of the Contractor's invoice. Overdue invoices
will be subject to interest charged at the rate of Barclays base rate
plus 5% pa.
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3.3 Unless otherwise stated all costs expressed in or in connection with
this Agreement are expressed exclusive of value added or other
applicable and relevant sales taxes.
3.4 Reasonable expenses associated with the provision of the Services will
be paid on submission of an expense form. The Client agrees to pay
Contractor's expenses only reasonably incurred. Fully evidenced expenses
shall be paid by the Client to the contractor or (if relevant) its
agents or subcontractors.
3.5 Same as 9.6
4. CHANGE CONTROL
4.1 The Client may at any time request changes to the Services.
4.2 The Contractor shall not be obliged to agree to any request or
recommended change. It shall not unreasonably withhold its agreement to
such request.
5. CONFIDENTIALITY
5.1 The Client and the Contractor both agree not to disclose any information
about the other or its working practices to any other Party without
express written permission, in accordance with the 'Mutual Non
Disclosure Agreement', appended to this Agreement, Schedule 2. Any work
carried out in accordance with this Agreement shall also remain
confidential.
5.2 The Contractor will at all times work in accordance with the relevant
Rules and Regulations of the SEC.
5. INTELLECTUAL PROPERTY RIGHTS
6.1 The Contractor hereby assigns to the Client with full title guarantee
all rights, title and interests including (without limitation) all
world-wide intellectual property rights (including, without limitation,
copyright, patents, trade marks, design rights - registered or
unregistered - database rights or any equivalent worldwide rights)
("Intellectual Property Rights") in the subject matter of the Services
developed for the Client including any related to prototypes of
applications, designs or developments whether or not utilised by the
Client.
6.2 The Contractor, where applicable, waives absolutely in favour of the
Client and agrees never to assert any moral right it may have by virtue
of the Copyright, Designs and Patents Xxx 0000 and, so far as it is
legally possible, any broadly equivalent rights that they may have in
any territory of the world.
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6.3 The contractor shall at the request of the Client do such acts and
execute such documents as the Client may reasonably require in order to
effect or confirm the provisions of this clause. For the avoidance of
doubt nothing in this Contract shall serve to vest any of the Client's
existing intellectual property rights in the Contractor.
7. TERMINATION
7.1 Either Party shall be entitled to terminate this Agreement with
immediate effect if the other Party is in breach of its obligations as
set out in this Agreement.
7.2 If the Client terminates this Agreement pursuant to clause 7.1. the
Contractor shall not be entitled to receive any further fees from the
date of termination other than the accrued fees due and payable at that
date.
7.3
7.4 Upon termination for whatever reason, both parties shall immediately
deliver up to the other Party any property of the other Party which the
first Party has no contractual rights to retain.
7.5 Notice of termination and any other notices served under the Agreement
shall be made in writing and served by hand or by registered mail to the
address at the top of this Agreement.
7.6 The termination of this Agreement whether pursuant to the provisions of
this clause or any other clause of this Agreement shall save as
expressly otherwise provided be without prejudice to any rights of
either Party which have accrued prior to the date of effective
termination of this Agreement.
7.7 Contractor agrees that for the duration of this Agreement and for 6
months following its final termination, including any notice period,
without the express written consent of the Client no approach or offer
regarding employment is to be made by or on behalf of the Contractor or
its agents to employees, officers or contractors engaged by the Client
and with whom the Contractor (or its employees, officers, agents or
sub-contractors) have had contact in connection with the supply of the
Services or otherwise in connection with this Agreement. Contractor
acknowledges that payment to the Client to compensate it for its costs
associated with replacing any such employee, officer or contractor will
likely be required to obtain such consent.
7.8 Upon termination or completion of the agreement the Contractor agrees
that Xxxxx Xxxxx shall immediately resign as CFO and Director of
Narrowstep Inc and as Director of all Narrowstep subsidiaries and shall
relinquish any other roles and responsibilities as an Officer of the
Client company and company subsidiaries.
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8. WARRANTIES
8.1 The Contractor represents, warrants and undertakes to the Client that it
will use all reasonable endeavours to ensure that the services are
provided in line with current best practices, including adherence to
GAAP accounting procedures.
8.2 The Contractor represents, warrants and undertakes that the services
will be carried out with due diligence and professional standards of
care.
8.3 The Contractor shall use all reasonable endeavours to ensure the
reasonable continuity of services under this Agreement.
9.5 The Contractor hereby agrees to indemnify the Client and keep the Client
indemnified against all and any liability incurred by the Client arising
from any proceedings actions claims or demands brought or made against
Client by any third party for direct breach of any services provided by
the Contractor or the Contractor's employees or substitutes.
9.6 The Contractor hereby agrees that they will at all times be responsible
for due and timely payment of appropriate taxes and fully indemnify the
Client from all and any claims arising from this Contract arising from
demands for employment taxes, contributions or benefit payments.
10. INDEMNITY
10.1 The Client will be relying upon the Contractor's skill, expertise, and
experience in performing the Services and also upon the accuracy of all
statements made and any advice given by the Contractor in connection
with the provision of the Services and the Contractor agrees to
indemnify the Client and keep the Client indemnified against all loss,
damage, costs, legal costs, and professional and other expenses of any
nature whatsoever incurred or suffered by the Client or by a third party
as a result of such reliance.
10.2 For the avoidance of doubt, for the purposes of this Agreement the
Contractor's personnel shall at all times be deemed to be the
Contractor's employees whether such personnel are at the Client's site
or anywhere else.
10.3 The provisions of this clause shall survive the termination of this
Agreement howsoever caused.
11. ENTIRE AGREEMENT
11.1 The parties agree that this Agreement contains the entire agreement of
the parties end supersede all prior agreements, understandings or
arrangements between them and further each Party acknowledges:
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(a) that it has not entered into this Agreement on the basis of, and
does not rely, and has not relied upon, any statement or
representation (whether negligently made or innocently made) or
warranty or other provision (whether oral, written, express or
implied) except those expressly repeated or referred to in this
Agreement; and
(b) the only remedy or remedies available in respect of any
misrepresentation or untrue statement made to it shall be a
claim for breach of this Agreement; and
(c) each Party further acknowledges that this clause shall not apply
to any statement, representation or warranty made fraudulently
or to any provision of this Agreement which was induced by fraud
so that nothing in this Agreement shall affect the remedies
available to the parties in respect of such fraudulent matters.
12. RIGHTS OF THIRD PARTIES
Unless expressly provided in this Agreement. no term of this Agreement,
no term of this Agreement is enforceable pursuant to the Contracts
(Rights of Third Parties) Xxx 0000 by any person who is not a Party to
it.
13. GOVERNING LAW AND VARIATION
13.1 This Agreement shall be governed in all respects by the law of England
and any dispute hereunder shall be subject to the exclusive jurisdiction
of the English courts.
13.2 This Agreement shall be capable of being varied only by an instrument in
writing under the hand of an officer or other representative of each of
the parties hereto duly authorised in that behalf.
14. SUB-CONTRACTING OR ASSIGNMENT
Contractor may not assign or transfer any element of this Agreement or
all or any of its rights hereunder without the prior written consent of
the Client.
15. DATA PROTECTION
Contractor warrants that it shall comply with its obligations under the
Data Protection Acts 1984 and 1998, any subsequent UK legislation
implementing Directive 95/46/EU or Directive 97/66/EU and under the
Acts.
16. SEVERABILITY
This Agreement is severable in that if any provision hereof is
determined to be illegal or unenforceable by any court of competent
jurisdiction such provision shall be deemed to have been deleted without
affecting the remaining provisions of this Agreement
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17. NO PARTNERSHIP, ETC
Nothing in this Agreement shall constitute or be deemed to constitute a
partnership between the parties hereto or constitute or be deemed to
constitute either Party the agent of the other for any purpose
whatsoever and neither Party shall have any authority or power to bind
the other or to contract in the name of or create a liability against
the other.
18. WAIVER
No failure by either Party to exercise any right or remedy available to
it hereunder nor any delay so to exercise any such right to remedy shall
operate as a waiver thereof nor shall any single or partial exercise of
any right or remedy preclude any other or further exercise thereof or
the exercise of any other right or remedy.
19. NOTICES
Any notice to be given hereunder by either Party to the other shall be
in writing and delivered personally sent by prepaid recorded delivery or
registered post to the addressee at the addressees registered office for
the time being or by fax or e-mail and shall be deemed to be received if
delivered personally at the time of receipt if sent by post at the
expiration of 48 hours after being placed in the post (having been
correctly addressed) whether or not received or if by fax or e-mail 24
hours after despatch to the correct fax number or e-mail address of the
addressee.
I hereby declare that I am authorised to enter into this contract and do so
without duress.
Signed an behalf of Adamao Ltd by Xxxxx Xxxxx:
/s/ Xxxxx Xxxxx
Signed on behalf of Narrowstep Inc:
/s/ Iolo Xxxxx
Name: Iolo Xxxxx
Position: Chief Executive Officer
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Schedule 1
THE SERVICES
The role will be to focus (almost exclusively) on completing the SEC filing.
Also to continue acting as de facto Chief Financial Officer of Narrowstep Inc.
PERIOD
This contract is initially for a fixed period of four months that may be renewed
thereafter, or if earlier until the completion of the SEC filing process and the
company's shares being declared effective for trading by the SEC.
FEE
The fee shall be (pound)20,000 exclusive of VAT which will be paid monthly in
(pound)5,000+ VAT instalments or as a lump sum at the end of the Period, should
this be less than four months.
RESPONSE TIMES
The Contractor is required to inform the Client of his availability giving a
minimum of seven days' notice.
OTHER
1. The invoice presented for August 2004 is settled as billed.
2. The monthly and final payments are made along with all the other
salaries a few days before month-end with no delays. Once the
filing is declared effective the balance of the (pound)20k is
due immediately, again with no delays.
3. These figures exclude any reasonable expenses which will be
settled in a timely fashion.
4. Any further work that is required after Dec 31st or on going
effective will either be by agreement or on the previous terms.
5. Full support is provided and minimal delays in approving any
work considered essential to the filing by the key services
suppliers EY, LS, RKCO and LSG.
6. The options granted to Xxxxx Xxxxx under the previous contract
dated 20th November 2003 remain valid and in place and survive
this agreement.
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Schedule 2
MUTUAL NON DISCLOSURE AGREEMENT
The Parties intend to enter into discussions and correspondence about certain
projects ("the Projects"). During the discussions and correspondence the Parties
may acquire or disclose Confidential Information (as defined below). Each Party
recognises and acknowledges the value and confidential nature of the
Confidential Information and that damage could result to the other Party if it
is disclosed to any third party.
The purpose of the Agreement is to set out the terms and conditions upon which
each Party will disclose and receive Confidential Information from the other
Party.
It is agreed as follows:
INTERPRETATION
For the purpose of this Agreement:
1.1 "Agreement" means this agreement and any schedule attached to this
agreement;
1.2 "Associate" or "Associates" means an Associate Company and any director,
officer, employee, consultant, representative, agent, advisor or other
associate of a Party.
1.3 "Associate Company" means any holding company or subsidiary undertaking
of such Party and any other subsidiary undertaking of any such holding
company. For these purposes "holding company" and "subsidiary
undertaking" shall have the meanings given in the Companies Xxx 0000 (as
amended).
1.4 "Confidential Information" means
(a) all information relating to the the business of a Party or its
Associate which is disclosed by either Party or its Associates
in writing, orally, on disc or otherwise to the other Party (or
its Associate) including (without limitation):
(i) the information (if any) specified in SCHEDULE 2 to this
Agreement: and
(ii) any information relating to the operation, plans,
intentions, know-how, trade secrets, software, source
code, object code, technical specification, research and
development, analyses, compilation and studies, market
opportunities, customers and potential customers,
business and/or financial affairs of the other Party or
of any Associate, customer or potential customer of any
Associate;
(b) this Agreement and its contents; and
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(c) the fact that the parties are or were at any time discussing the
Proposal.
For the avoidance of doubt, Confidential Information does not include
information which:
(d) at or after the time of disclosure to or acquisition by the
Receiving Party or its Associates is in the public domain
otherwise than through a breach of this Agreement by the
Receiving Party; or
(e) was lawfully within the possession of the Receiving Party or any
of its Associates prior to its disclosure to the Receiving Party
or such Associate by or on behalf of the Disclosing Party or its
Associates provided that the source of such information was not
bound by or subject to a confidentiality agreement with the
Disclosing Party or any of its Associates in respect or by
fiduciary or other similar duties of confidentiality thereto in
respect; or
(f) the Receiving Party is required to disclose by law, any Court of
competent jurisdiction, any Government agency or regulatory body
lawfully requesting the same or by the regulations or any
recognised Stock Exchange provided that the Receiving Party
notified the Disclosing Party in advanoc of such disclosure.
1.8 "the Disclosing Party" means the Party or its Associate who discloses
any Confidential Information.
1.7 "the Receiving Party" means the Party or its Associate who receives or
otherwise obtains any Confidential Information.
The headings in this Agreement are for convenience only and do not affect the
meaning of this Agreement.
UNDERTAKINGS
2.1 In consideration of Confidential Information being made available to it
both Parties agree (and represent, warrant and undertake that may will
procure that their Associates agree in writing) to:
(a) keep all Confidential Information strictly confidential and not
to disclose the same without express prior written consent of
the Disclosing Party;
(b) not use or copy in any manner (or authorise or permit the use or
copying of) the whole or part of any Confidential Information
for any purpose other than evaluating the Proposal internally;
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(c) restrict access to any Confidential Information to such of its
Associates who need to know such information for the purpose of
evaluating the Proposal internally only;
(d) not any time without the prior written consent of the Disclosing
Party discuss with any Associate of the Disclosing Party any
Confidential Information or any other matter in connection with
the discussions that are taking or have taken place in relation
to the Proposal;
(e) procure that each of its Associates and any third party who has
been disclosed any Confidential Information observe the terms of
this Agreement as if it were a Party to it and the Receiving
Party shall be responsible for any breach of the undertakings in
this Agreement by way of its Associates or any such third party;
(f) not use information for its own or its Associates competitive
advantage; and
(g) not undertake any marketing activity or make any public
announcement concerning the other Party, its business, products
or services, the Proposal or its products or services which have
benefited from or make use of information provided pursuant to
this Agreement without the prior written consent of the
Disclosing Party.
2.2 Each Party warrants to the other that neither it nor any of its
Associates has disclosed or made use of Confidential Information which
would be a breach of any of clauses 2.1 to 2.8 if such provisions had
been in force prior to the data of this Agreement.
3. FURTHER UNDERTAKINGS
The Receiving Party will, in the event of the Disclosing Party
requesting in writing, immediately return to the Disclosing Party,
delete or destroy all Confidential Information in all recorded forms
including any stored in an electronic database (together with any
copies) in its possession or under its control) and confirm such return,
deletion or destruction in writing to the Disclosing Party save that the
Receiving Party may for the purposes only of compliance with legal
regulatory and professional obligations preserve (but subject to a
continuing duty to keep such information confidential) copies of the
Confidential Information.
4. NO REPRESENTATIONS OR WARRANTIES
Save in respect of fraud, neither Party gives any warranty as to the
accuracy or completeness of information supplied pursuant to this
agreement. Save for personal injury or death caused by it or its
Associate's negligence or for fraud, neither Party nor its Associates
shall have any responsibility or liability to the other whatsoever
arising in respect of the other's use of any Confidential Information
disclosed under this Agreement.
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5. NO OFFER
The Receiving Party agrees that the provision of Confidential
Information made available to it for the purpose of the Proposal does
not and will not constitute any offer by or to any Party nor will any
such documents or information form the basis of any contract. For the
avoidance of doubt neither Party shall be under any obligation to
disclose any information.
6. PROPRIETORSHIP
All Confidential Information and any intellectual property rights in
such Confidential Information shall remain the property of the Party
which supplies it an except as expressly provided in this Agreement,
neither Party grants any license in respect of any Confidential
Information.
7. DURATION
This Agreement shall commence on the date at the head of this Agreement
and continue in full force and effect indefinitely (and for the
avoidance of doubt whether or not the parties reach an agreement on the
Proposal).
8. CONSEQUENCES OF BREACH
The Receiving Party undertakes that it will indemnify and keep
indemnified the Disclosing Party and its Associates from and against all
losses, damages, costs, expense, claims, demands and other liabilities
or whatsoever nature arising as a direct result of any use or disclosure
of Confidential Information in breach of the terms of this Agreement
provided that in no circumstance shall either Party be liable for any
indirect or consequential loss (including loss of profit) suffered by
the other or its Associates.
9. RIGHTS
9.1 All rights granted to either Party shall be cumulative and nor
exhaustive of any rights and remedies which is not capable of exclusion
by law. Any failure or delay by either Party in exercising any right,
power or privilege hereunder shall not act as a waiver hereunder nor
shall any single or partial exercise preclude any further exercise of
any rights, power or privilege by such Party.
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9.2 No variation of the Agreement shall be effective unless in writing
signed by a director on behalf of each Party.
10. ENTIRE AGREEMENT
This Agreement represents the entire agreement and understanding of the
parties with respect to the subject matter hereof and supersedes all
prior understandings and representations, whether written or oral, with
respect thereto.
Each Party acknowledges that:
It does not enter into this Agreement on the basis of and does not rely,
and has not relied, upon any statement or representation (whether
negligent or innocent) or warranty or other provision (in any case
whether oral, written, express or implied) made or agreed to by any
person (whether a Party to this Agreement or not) except those expressly
repeated or referred to in this Agreement and the only remedy or
remedies available in respect of any misrepresentation or untrue
statement made to it shall be a claim for breach of contract under this
Agreement.
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