CONSULTING SERVICES AGREEMENT
EXHIBIT 10.24
THIS AGREEMENT is made as of the 1st day of July, 2006
BETWEEN:
(1) DeBondo Capital Limited registered in England under
company number (5666674) whose registered office is at 00 Xxx
Xxxx Xxxxxx Xxxxxx X0X 0XX (‘DeBondo’); and
(2) MobileMail (US) Inc. a company incorporated under the laws of the
State of Nevada, USA, whose business office is at 000 Xxxxxxxxxxx Xxx, Xxxxxx
X0X 0XX, XX (‘Customer’).
WHEREAS:
(A) The Customer is in the business of developing, marketing
and selling wireless software applications for the SME market;
(B) The Customer wishes to retain DeBondo and Debondo wishes to provide the
Customer with Services on the terms set forth in this Agreement
NOW THEREFORE THIS AGREEMENT WITNESSSES that in consideration of the covenants and agreements set forth below the parties agrees as follows:
1 Definitions and Interpretation
1.1 In this Agreement unless the context otherwise requires:
| ‘business day’ | means a day, other than a
Saturday or Sunday, on which banks are open for ordinary banking business
in London; |
| ‘the Effective Date’ | means the date first set forth above; |
| ‘party’ or ‘parties’ | references to ‘party’
or ‘parties’ shall be construed as references to a party or
parties to this agreement; |
| ‘the Services’ | means the services to be performed
by DeBondo for the Customer upon the terms of this agreement, a detailed
description of which is set out in the appendix hereto as amended from
time to time; |
| ‘value added tax’ and ‘VAT’ | mean value added tax as provided
for in the Value Added Tax Xxx 0000 and legislation supplemental thereto
or replacing, modifying or consolidating it. |
1.2 References to, or to any provision of, any treaty, legislation, statute, directive, regulation, judgment, decision, decree, order, instrument, byelaw, or any other law of, or having effect in, any jurisdiction (‘Laws’) shall be construed also as references to all other Laws made under the Law referred to, and to all such Laws as amended, re-enacted, consolidated or replaced or as their application is modified by other Laws from time to time, and whether before or after the date of this agreement.
1.3 References to ‘this agreement’ or to any other agreement or document referred to in this agreement mean this agreement or such other agreement or document as amended, varied, supplemented, modified or novated from time to time, and include the schedules and appendices.
1.4 References to the singular shall include the plural and vice versa and references to the masculine, the feminine and the neuter shall include each other such gender.
1.5 References to ‘parties’ are references to the parties to this agreement, and references to a ‘person’ include any individual, company, body corporate, corporation sole or aggregate, government, state or agency of a state, firm, partnership, joint venture, association, organization or trust (in each case, whether or not having separate legal personality and irrespective of the jurisdiction in or under the law of which it was incorporated or exists) and a reference to any of them shall include a reference to the others.
1.6 References to clauses and the appendix are to clauses of and the appendix to this agreement. References to this agreement include the appendix.
1.7 The headings are inserted for convenience only and shall not affect the construction of this agreement.
2 Duration
This agreement shall commence on the Effective Date and continue for a minimum term of 12 months unless terminated in accordance with Clause 12. of this agreement.
3 Provision of the Services
DeBondo shall provide the Services to the Customer at the times and at the places, in the manner and in accordance with the terms set out in the appendix.
4 Charges
4.1 The Customer shall pay charges for the Services in the amounts and at the times set out in the appendix.
4.2 All amounts expressed as payable pursuant to this agreement are exclusive of any applicable VAT which, where applicable, shall be payable by the relevant party in addition to the amount in question on production to it of a valid VAT invoice.
4.3 All sums payable by either party under this agreement shall be paid free and clear of all withholdings, set-offs or counterclaims whatsoever, except any deduction or withholding which may be required by law
5 Independent Contractor
In performing the services in carrying out its obligations under this agreement, DeBondo shall act as an independent contractor and not the agent of the Customer, and neither DeBondo nor any of its directors, employees or agents shall have any authority to negotiate or enter into contracts on behalf of or otherwise to bind the Customer except where authorized expressly by the Customer in writing.
6 Standard of work
In performing the Services, DeBondo shall use reasonable care and skill; comply with the terms set out in the appendix and with generally accepted standards of good practice. The said obligations shall replace all conditions and warranties which would otherwise be implied herein by statute, common law or otherwise (including, without limit, the Supply of Goods and Services Act 1982) all of which are hereby expressly excluded.
7. Non-disclosure
Except as may be required by applicable law, Debondo shall not (either during the term of this Agreement or at any time thereafter) disclose any information relating to the private or confidential affairs of the Customer or to the Services (either during the term of this agreement or at any time thereafter) use for its own purpose or for any purpose other than those of the Customer any such information it may acquire in performance of its obligations hereunder.
The foregoing restrictions on disclosure shall not apply to any information which:
| (a) | is in the public domain when received; |
| (b) | at any time becomes known to the public through no fault of Debondo; | |
| (c) | is in the possession of or otherwise known to Debondo at the time of disclosure; or | |
| (d) | is obtained by Debondo from an independent, third-party
source which, to the knowledge of Debondo, has no obligation of confidentiality
to the Customer. |
This Clause 7 shall survive the termination of this agreement by either party for any reason.
8. Non-disclosure
Debondo shall not disclose, or otherwise make public, the terms of this agreement, except as may be necessary to secure enforcement of the terms of this agreement or in response to a lawful subpoena. Debondo shall not publish the subject matter of this relationship without first providing the Customer with the opportunity to review and offer reasonable objection to the contemplated publication.
9. Non-Solicitation
During the term of this agreement and for a period of six (6) months thereafter the Customer covenants and agrees with Debondo that the Customer will not, directly or indirectly, make an offer of employment to, or otherwise solicit the services of or induce any employee, consultant or agent of Debondo to leave the employment or engagement with Debondo.
10 Limitation of liability1
In respect of those of the Services which are of a managerial or advisory nature (as identified in the appendix) DeBondo shall not be liable to the Customer for any loss suffered or liability incurred by the Customer arising out of any act, omission or error of judgment (whether or not negligent) which may be committed by DeBondo or by any of its employees, agents or subcontractors in the course of the provision of those of the Services except where such loss or liability arises from the negligence, dishonesty or willful default of DeBondo or of any of such employees, agents or subcontractors.
Nothing in this clause 10 or elsewhere in this agreement shall exclude, restrict or limit the liability of either party for death or personal injury caused by that party’s negligence or for fraud.
11 Force majeure
If and to the extent that the provision of the Services is prevented or delayed by force majeure (as defined by clause 11 below), DeBondo shall promptly notify the Customer specifying the nature, extent, effect and the likely duration of the circumstances constituting the force majeure, and DeBondo shall then be relieved of any liability for failure to perform or for delay in performing the Services but shall nevertheless use all reasonable endeavors to minimize the effect of the force majeure on its performance of its obligations and to resume full performance of them and shall make such alternative arrangements for doing so as may be practicable without incurring material additional expense PROVIDED that if as a result of the force majeure the Services are not supplied for more than 6 months, the Customer may terminate this agreement forthwith by notice to DeBondo. Such a termination notice shall be irrevocable, except with the consent of both parties.
For the purposes of this clause 9, ‘force majeure’ means any circumstances not foreseeable at the date of this agreement and not within the reasonable control of OM
12 Termination
12.1 At any time following the first anniversary of this agreement, either party may terminate this agreement on providing the other party with one month’s advance notice in writing.
12.2 Either party may terminate this agreement forthwith by notice to the other if the other shall
have committed a material breach of this agreement which is incapable of remedy or (if so capable) is not remedied within 30 days of the party committing the breach having been served with notice by the other party, specifying the breach and requiring its remedy
12.2 Upon termination any rights or obligations to which either of the parties may be entitled or be subject before such termination shall remain in full force and effect, including but not limited to any fees payable to Debondo for the Services performed to the date of termination of this agreement.
13 General
13.1 DeBondo may subcontract any of its obligations under this agreement. This agreement shall be binding upon the parties and their successors and permitted assigns but neither of the parties may assign any of their respective rights and obligations under this agreement without the prior written consent of the other
13.2 No exercise or failure to exercise or delay in exercising any right, power or remedy vested in either party shall constitute a waiver by that party of that or any other right, power or remedy. 13.3 Nothing in this agreement shall be deemed to constitute a partnership between the parties nor constitute either party the agent of the other or otherwise entitle either party to have authority to bind the other party for any purpose.
13.4 This agreement, together with any documents referred to in it, constitutes the entire agreement between the parties in relation to its subject matter and supersedes and extinguishes any prior agreements and understandings whether oral or written with respect to it. Each party acknowledges that it has not been induced to enter into this agreement by any representation or warranty other than those contained in this agreement and, having negotiated and freely entered into this agreement, agrees that it shall have no remedy in respect of any other such representation or warranty except in the case of fraud. Each party acknowledges that its legal advisers have explained to it the effect of this clause.
13.5. No variation of this agreement shall be effective unless reduced to writing and signed by or on behalf of a duly authorized representative of each of the parties.
13.6 In the event that any term, condition or provision of this agreement is held to be a violation of any applicable law statute or regulation the same shall be deemed to be deleted from this agreement and shall be of no force and effect and this agreement shall remain in full force and effect as if such term, condition or provision had not originally been contained in this agreement. Notwithstanding the foregoing, in the event of any such deletion the parties agree to negotiate in good faith in order to agree the terms of a mutually acceptable and satisfactorily alternative provision in place of the provision so deleted.
13.7 If any party to this agreement defaults in the payment when due of any sum payable by it under this agreement, its liability shall be increased to include interest on such sum from the due date until the date of actual payment (both before and after judgment) at that annual rate which is 8 percent above the base rate of (Bank of England) from time to time in effect during such period, and compounded daily.
13.8 No person who is not a party to this agreement shall have any rights under the Contracts (Rights of Third Parties) Xxx 0000 to enforce any term of this agreement.
14 Notices
14.1 Any notice (which term shall in this clause include any other communication) to be given under this agreement by either party to the other shall be in writing in the English language.
14.2 Any such notice shall be addressed as provided in clause 14.2 and may be:
| 14.2.1 | personally delivered, in which case it shall be deemed
to have been given upon delivery at the relevant address if it is delivered
not later than 17.00 hours on a business day, or, if it is delivered later
than 17.00 hours on a business day or at any time on a day which is not
a business day, at 08.00 hours on the next business day; or |
| 14.2.2 | if within the United Kingdom, sent by first class
pre-paid post, in which case it shall be deemed to have been given 2 business
days after the date of posting; or |
|
| 14.2.3 | sent by fax, in which case it shall be deemed to
have been given when dispatched, subject to confirmation of uninterrupted
transmission by a transmission report provided that any notice dispatched
by fax after 17.00 hours on any business day or at any time on a day which
is not a business day shall be deemed to have been given at 08.00 on the
next business day; or |
|
| 14.2.4 | sent by electronic mail, in which case, it shall
be deemed to be given when received but subject to the same provisions
regarding receipt after 17.00 hours as apply to notices sent by fax. |
14.3 The addresses and other details of the parties referred to in clause 14.3 are, subject to clause 14.4:
| DeBondo | Address: 00 Xxx Xxxx Xxxxxx, Xxxxxx, X0X 0XX Fax: 000 0000 0000 | |
| Customer | Suite 5.18, 000 Xxxxxxxxxxx Xxxxxx, Xxxxxx, X0X 0XX. | |
| Fax: 000 0000 0000 |
14.4 Either party may notify the other party of any change to the address or any of the other details specified in clause 14.3, provided that such notification shall only be effective on the date specified in such notice or 5 business days after the notice is given, whichever is later
15 Law and jurisdiction
This agreement shall be governed by, and construed in all respects in accordance with, English law.
Signed on behalf of DeBondo: /s/ Xxxxx XxXx
Date: ________________
Signed on behalf of Customer: /s/ Xxxx Xxxxx
Date: 01/07/06
APPENDIX
THE SERVICES
| Assisting in the identification of business partners, resellers,
potential acquisition targets |
|
| Assisting and project managing due diligence work, SEC filings
and general coordination of SEC attorneys and auditors involved |
|
| Assisting and project managing corporate financing activities
of the Customer including but not limited to public and private financings |
|
| Assisting in identifying Investor Relations and Corporate
Communications consultants |
|
| TOTAL MONTHLY COST | £5,000.00 |
The aforementioned services are the monthly standard Services.
The following will be charged over and above, as and when used by the Customer
- Any third party consultants DeBondo has to hire to perform the Services
- Any legal and/or auditing cost associated with DeBondo performing the Services
- Any expenses and disbursements necessarily incurred by Debondo to provide the Services.
Payment shall be due on receipt of invoice, and be made no later than 7 days of date of such invoice.
All invoices will be sent by way of any method mentioned in Clause 11.
