CONSULTING AGREEMENT
This Consulting
Agreement (the “Agreement”) is made as of this June 7, 2010 (the “Effective Date”),
by and between Top Gear
Inc., (hereinafter the "Company") and Xxxxx Perl, with offices at 000
Xxxxxxxxx Xxxxxxxx Xx. Xxxxx 0, Xxxxxxxxx, Xxxxxx (hereinafter called the
"Consultant").
WITNESSES:
WHEREAS, the Company is a
kosher certification company, and is interested in developing a kosher
manual in order to be used as a study tool by field representatives
of the Company primarily in the United States;
WHEREAS, Consultant is a
“mashgiach” in the area of kashrut and jewish dietary laws and has extensive
knowledge and experience in the field;
WHEREAS, the Company desires
to enter into an Consulting Agreement with Consultant, and Consulant desires to
act as a consultant to the Company on the terms and conditions set forth
herein.
NOW THEREFORE, in
consideration of the premises and of the mutual covenants and conditions herein
contained, the parties hereto agree as follows:
1. Term. The Company hereby retains
Consultant to perform consulting services,
including assisting the Company in developing its Kosher Instruction Manual to
be used by sales representatives of the Company, as well as to assist in
oversight of the kosher certification process via internet and other forms of
communication from time to time, for a term commencing on
the date hereof and terminating one
year from the Effective Date. This Agreement may be extended on a
yearly basis upon the Parties mutual written consent. Consultant
hereby accepts such retention.
2. Remuneration.
2.1 The
Company shall pay to Consultant the following:
(a) Five
thousand dollars ($5,000) for the preparation of a comprehensive Kosher
Instruction Manual which will include a detailed step by step process
on explaining the jewish dietary laws as well as a operational plan for making a
place “kosher.” Consultant shall first prepare an outline of the
manual for approval by the Company. After the Company approves the
outline, the Consultant shall prepare the comprehensive manual. In
the event that after prepared of the outline the Company decides not to proceed
with the preparation of the Kosher Instruction Manual, then the Company will pay
the Consultant the amount of $500.00 for the preparation of the outline of the
manual.
(b) Payment
for additional tasks such as the preparation of additional business plans shall
be agreed to in writing by the Company and Consultant, and shall be attached to
this Agreement to form an integral part hereof. The cost of such tasks will be
pre-approved in writing by the Company.
2.2. The
Company will reimburse the Consultant for reasonable travel expenses for travel
pre-approved in writing by the Company, including (i) coach air travel (ii)
lodging, and (iii) a per diem of $200 per day, including the day of travel and
the day of return. All flights to the USA shall be coordinated,
scheduled and approved in writing in advance by the Company. Travel
expenses will be reimbursed within 10 days of completion of travel, or in such
other manner as shall be agreed to in writing by the Company and
Consultant.
2.3 In
the event that the Company business proves a success and the Company is
interested in retaining the services of the Consultant for further assistance
with the Companies operating plan then then the Parties will agree in
writing on the remuneration method on a per case basis.
3. Business Expenses.. The
Company shall reimburse Consultant for all pre-approved, reasonable and proper
business expenses incurred by the Consultant, including disbursements
made in the performance of his duties to the Company. Prior to incurring
any expenses and/or disbursements, the Consultant shall obtain the prior
written approval of the Chief Executive Officer or the Board of Directors of the
Company.
4. Confidentiality. All written, electronic or oral
proprietary or confidential information provided by the Company to the
Consultant in furtherance of this Agreement or in order for the Consultant to
perform his obligations hereunder, including, without limitation, identities of
any pending or future vendors or planned products or services to be offered;
customer information; planned and future promotions; business plans and
forecasts; the terms of this Agreement, or any other information to which a
party became privy in the course of the performance of this Agreement, shall be
confidential and proprietary information or trade secrets of the
Company. In addition, all deliverables, including the Kosher
Instruction Manual, shall be deemed confidential information of the
Company. The Consultant shall not make any unauthorized use of the
Company’s confidential information, nor disclose, reproduce or otherwise make
available such confidential information to any third party. The
Consultant agrees to exercise all due care and take all reasonable precautions
to prevent any use or disclosure of any of the Company’s confidential
information in violation of this Agreement.
5. Non-Competition. Consultant agrees
that during the term of this
Agreement , and continuing for a period of 1 years
thereafter, Consultant will not directly
or indirectly enter into
or remain in the employ of
any person, firm or corporation, or provide
services to, or engage in or have a financial interest in any business which is
then directly or indirectly competitive to the
business of the Company in the United States. In the event of a
breach of this covenant not to compete, the parties acknowledge that the Company
may be irreparably damaged and may not have an adequate remedy at
law. The Company may therefore obtain injunctive relief, without the
necessity of posting a bond, for any breach or threatened reach of this
covenant. The parties hereto further acknowledge that this covenant
not to compete is intended to conform to the laws of both the State of Israel
and the United States, and a court of competent jurisdiction is hereby
authorized to expand or contract the restrictions of this covenant not to
compete in order to conform it with the said laws so that it shall bind the
parties hereto. This Section 5 shall survive termination of this
Agreement.
The
Parties have entered into a Non-Compete and Non-Circumvent Agreement which is
attached hereto as Annex B.
2
6. Ownership of Work
Product. The Company
shall own all right, title, and interest (including copyrights, trade secret
rights, and all other intellectual property rights of any sort
throughout the world) in and to any and all deliverables, works of authorship,
designs, know-how, ideas and information made or conceived or reduced to
practice, in whole or in part, by the Consultant during the term of this
Agreement that relate to the subject matter of, or arise out of, the services
being performed for the Company, including the outline and the Kosher
Instruction Manual (collectively, the “Work Product”). All Work
Product is work made for hire owned by the Company to the extent allowed by law,
and, in addition, the Consultant hereby makes all assignments necessary to vest
ownership of the Work Product in the Company. The Consultant shall
further assist Company, at Company’s expense, to further evidence, record and
perfect such assignments, and to perfect, obtain, maintain, enforce, and defend
any rights assigned. The Consultant hereby irrevocably designates and
appoints Company as its agents and attorneys-in-fact, coupled with an interest,
to act for and in the Consultant’s behalf to execute and file any document and
to do all other lawfully permitted acts to further the foregoing with the same
legal force and effect as if executed by the Consultant.
7. Termination. Consultant's
agreement hereunder may be terminated by the Company on thirty days prior
written notice for a material breach of this Agreement or immediately in the
event of a material breach of Section 5 of this Agreement.
8. Limitation
of Liability
8.1 Neither
party shall be liable hereunder for any indirect, special, or consequential
losses or damages of any kind or nature whatsoever, including lost profits,
regardless of whether arising from breach of contract, warranty, tort, strict
liability or otherwise, even if advised of the possibility of such loss or
damage, or if such loss or damage could have been reasonably
foreseen.
8.2 IN
NO EVENT SHALL COMPANY BE LIABLE TO THE CONSULTANT FOR ANY CLAIM OR CLAIMS
ARISING OUT OF THIS AGREEMENT IN AN AMOUNT EXCEEDING THE TOTAL MONETARY
OBLIGATION OF COMPANY TO THE CONSULTANT REMAINING UNDER THIS AGREEMENT FROM TIME
TO TIME.
9. Relationship
of the Parties.
9.1 Notwithstanding
any provision hereof, the Consultant is an independent contractor and not an
employee or agent of Company, and shall not bind nor attempt to bind Company to
any contract. The Consultant shall accept any directions issued by
Company pertaining to the goals to be attained and the results to be achieved
but shall be solely responsible for the manner and hours in which Services are
performed under this Agreement. The Consultant shall not be eligible
to participate in any of Company’s employee benefit plans, fringe benefit
programs, group insurance arrangements or similar programs. The
Consultant shall comply at the Consultant’s expense with all applicable laws,
regulations and codes required to be fulfilled by independent
contractors. The Consultant agrees to indemnify Company from any and
all claims, damages, liability, settlement, attorneys’ fees and expenses, as
incurred, on account of the foregoing.
3
9.2 The
Parties agree that should any competent judicial authority hold that the
relationship between the Consultant, and Company in respect of the services
provided pursuant to this Agreement is one of employer and employee, then
retroactively from the commencement of this Agreement, and in lieu of any
monthly consulting fee, the Consultant shall be deemed to have been entitled
only to a gross monthly salary (including for all over-time hours, if relevant)
in an amount equal to 70% of the actual monthly consulting fee paid to him, and
all excess amounts shall be repaid to Company together with interest at the
applicable rate. All amounts paid or payable to the Consultant will be
subject to withholding in accordance with applicable law.
10. Notices. Notice is
to be given hereunder to the parties by telegram or by certified or registered
mail, addressed to the respective parties at the addresses hereinbelow set forth
or to such addresses as may be hereinafter furnished, in writing:
To: __________________________
To: _____________________________
11. Successors and
Assigns. This Agreement shall be binding upon and inure to the
benefit of the successors and assigns of the Company. Unless clearly
inapplicable, reference herein to the Company shall be deemed to include such
other successor. In addition, this Agreement shall be binding upon
and inure to the benefit of the Consultant and his heirs, executors, legal
representatives and assigns, provided, however, that the obligations of
Consultant hereunder may not be delegated without the prior written approval of
the Board of Directors of the Company.
12. Amendments. This
Agreement may not be altered, modified, amended or Terminated except by a
written instrument signed by each of the parties hereto.
13. Governing Law. This Agreement
is entered into and shall be governed by and construed in accordance with the
laws of the State of New York.
IN WITNESS WHEREOF, the
parties hereto have executed this Agreement as of the day and year first above
written.
|
TopGear
Inc.
|
Consultant
|
||
|
/s/ Xxxx Xxxx Shalom
|
/s/ Xxxxx Perl
|
||
|
By:
|
Xxxx
Xxxx Shalom
|
By:
Xxxxx Perl
|
|
|
Title:
|
President
|
Title:
|
|
4
