EXHIBIT 10.3
CONSULTANCY AGREEMENT - XXX XXXXX, DATED JULY 15, 2009
CONSULTANCY AGREEMENT
30DC, INC.
and
XXX XXXXX
Xxxxx 00
Xxxxxxxxx Xxxxxx
000-000 Xxxxxx Xxxxxx
XXXXXX XXX 0000
DX 000 XXXXXX
ABN 00 000 000 000
Tel: (00) 0000 0000
Fax: 0000 000 000
XXX.XXXXXXXXXXX.XXX.XX
TABLE OF CONTENTS
1. DEFINITIONS AND INTERPRETATION.......................................1
1.1 DEFINITIONS.................................................1
1.2 INTERPRETATION..............................................3
2. ENGAGEMENT AND PLACE OF WORK.........................................4
2.1 ENGAGEMENT..................................................4
2.2 PRINCIPAL PLACE OF WORK.....................................4
3. COMMENCEMENT.........................................................4
4. REMUNERATION AND REVIEW..............................................4
4.1 REMUNERATION................................................4
4.2 TAX.........................................................5
4.3 PERFORMANCE BONUS...........................................5
4.4 REVIEW......................................................5
5. EXPENSES AND OTHER ENTITLEMENTS......................................5
5.1 REIMBURSEMENT OF EXPENSES...................................5
5.2 OTHER ENTITLEMENTS..........................................6
5.3 ENTITLEMENT OF THE CONSULTANT ON THE OCCURRENCE
OF A TAKEOVER EVENT OR TRADE SALE...........................6
6. PERFORMANCE OF SERVICES..............................................6
7. POLICIES AND PROCEDURES..............................................7
8. INTELLECTUAL PROPERTY................................................8
9. CONFIDENTIALITY......................................................8
10. CONFLICT OF INTEREST.................................................9
11. TERMINATION..........................................................9
11.1 RESTRICTION ON TERMINATION..................................9
11.2 BY THE COMPANY WITHOUT NOTICE...............................9
11.3 BY THE COMPANY WITH NOTICE.................................10
11.4 BY THE CONSULTANT WITH NOTICE..............................10
11.5 CONSEQUENCES OF TERMINATION................................10
11.6 BOARD REACTION TO TERMINATION..............................10
11.7 RETURN OF COMPANY PROPERTY.................................11
12. REAPPOINTMENT.......................................................11
12.1 REAPPOINTMENT..............................................11
12.2 FURTHER AGREEMENT..........................................11
13. GRIEVANCE AND DISPUTE RESOLUTION PROCEDURE..........................11
13.1 DISPUTE....................................................11
13.2 NOTICE OF DISPUTE..........................................11
13.3 DISPUTE RESOLUTION.........................................12
14. NOTICES.............................................................12
15. GENERAL PROVISIONS..................................................13
15.1 GOVERNING LAW..............................................13
15.2 ENTIRE AGREEMENT...........................................13
15.3 NO PARTNERSHIP OR EMPLOYMENT...............................13
15.4 COSTS AND DUTY.............................................13
15.5 NO RELIANCE................................................14
15.6 NO WAIVER..................................................14
15.7 SEVERABILITY...............................................14
15.8 BINDING NATURE.............................................14
15.9 NO VARIATION...............................................14
15.10 NO ASSIGNMENT..............................................14
15.11 COUNTERPARTS...............................................14
15.12 EXTENT THAT THE LAW PERMITS................................14
15.13 SPECIFIC PERFORMANCE.......................................14
15.14 CUMULATIVE RIGHTS..........................................14
SCHEDULE.................................................................... 15
CONSULTANCY AGREEMENT
DATE
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PARTIES
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30DC, INC. of 00 Xxxxxxxxx Xxxx, Xxxxxx Xxxxx,
Xxxxxxxx, Xxxxxxxxx
(COMPANY)
XXX XXXXX of 0 Xxxxxx Xxxx, Xxxxxxx, Xxxxxxxx, XX0
XXX, Xxxxxx Xxxxxxx
(CONSULTANT)
BACKGROUND
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A. The Company proposes to acquire the Immediate Edge
Business from the Consultant in accordance with
the terms and conditions of the Immediate Edge
Business and Assets Acquisition Agreement.
B. The Company wishes to engage the Consultant to
provide his skill and knowledge for the benefit of
the Company in connection with the Immediate Edge
Business and the 30DC Group.
The Consultant accepts the Engagement and agrees
to make the Services available to the Company on
the terms and conditions set out in this
Agreement.
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AGREEMENT
1. DEFINITIONS AND INTERPRETATION
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1.1 DEFINITIONS
In this Agreement, unless the context otherwise requires:
30 DAY CHALLENGE BUSINESS means the internet marketing business and
educational program owned and operated by the Company;
30DC GROUP means the businesses and entities operating within the
Company and includes the 30 Day Challenge Business, the Immediate Edge
Business and the Facebook Applications Business;
AGREEMENT means this agreement, the Schedules and Annexures attached to
this agreement and any document or documents supplemental to this
agreement;
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BOARD means the board of directors of the Company, and includes any
committee of the Board duly appointed by it;
BUSINESS DAY means a day which is not a Saturday, Sunday or public
holiday in England;
CHAIRMAN means the person appointed as Chairman of the Board of the
Company from time to time;
COMMENCEMENT DATE means the commencement date set out in Item 1 of the
Schedule;
CONFIDENTIAL INFORMATION has the meaning given in clause 9(a);
ENGAGEMENT means the engagement of the Consultant under this Agreement;
FACEBOOK APPLICATIONS BUSINESS means the business of developing and
operating the Facebook applications: "Peel a Meal", "Brimmies Super
Cups" and "Pop the Top", to be acquired by the Company;
IMMEDIATE EDGE BUSINESS means the online education and training
business in internet marketing and small business start up, to be
acquired and operated by the Company pursuant to the Immediate Edge
Business and Assets Acquisition Agreement;
IMMEDIATE EDGE BUSINESS AND ASSETS ACQUISITION AGREEMENT means the
business and assets acquisition agreement between the Consultant and
the Company to be entered into on or about the date of this Agreement
pursuant to which the Company will acquire the Immediate Edge Business
from the Consultant;
INTELLECTUAL PROPERTY means:
(a) copyright;
(b) all rights conferred under statute, common law or equity in
relation to inventions (including patents);
(c) registered and unregistered trademarks;
(d) registered and unregistered designs;
(e) circuit layouts; and
(f) all other agreed rights resulting from intellectual activity
in the industrial and mining fields;
MONTH means calendar month;
PRINCIPAL PLACE OF WORK means the principal place of work set out in
Item 3 of the Schedule;
REASONABLE ADDITIONAL HOURS means hours in excess of normal working
hours but such that the total number of hours worked per week does not
exceed 48 hours in any given week;
REMUNERATION means the remuneration package, including the Service
Fees, non fee payments and benefits (for the avoidance of doubt this
does not include performance-based bonuses referred to in clause 4.2)
provided to the Consultant in accordance with clause 4, set out in Item
6 of the Schedule;
SERVICE FEES means the service fees set out in Item 5 of the Schedule;
SERVICES means the services provided by the Consultant to the Company
in accordance with the terms of this Agreement, details of which are
set out in Item 4 of the Schedule to this Agreement; and
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TERM means the term set out in Item 2 of the Schedule.
1.2 INTERPRETATION
In this Agreement, unless the context otherwise requires:
(a) the singular includes the plural and vice versa;
(b) a reference to gender includes both genders;
(c) the word "person" means a natural person and any association,
body or entity whether incorporated or not;
(d) headings in this Agreement are for convenience only and do not
affect its interpretation or construction;
(e) a reference to writing includes any communication sent by
post, fax or e-mail transmission;
(f) where any word or phrase is defined, any other part of speech
or other grammatical form of that word or phrase has a cognate
meaning;
(g) a reference to any statute, proclamation, rule, code,
regulation or ordinance includes any amendment, consolidation,
modification, re-enactment or reprint of it or any statute,
proclamation, rule, code, regulation or ordinance replacing
it;
(h) a reference to US DOLLARS or USD or US$ is a reference to the
lawful tender of the United States of America;
(i) a reference to AUSTRALIAN DOLLARS or AUD or A$ is a reference
to the lawful tender of the Commonwealth of Australia;
(j) a reference to time refers to time in England;
(k) mentioning anything after "include", "includes" or "including"
does not limit what else might be included;
(l) no rule of construction applies to the disadvantage of a party
because this Agreement is prepared by (or on behalf of) that
party;
(m) a reference to any thing is a reference to the whole and each
part of it;
(n) a reference to a group of persons is a reference to all of
them collectively and to each of them individually;
(o) any direction, approval, discretion or decision given,
exercised or made by the Board under this Agreement will be
deemed to be a direction, approval, discretion or decision
given, exercised or made by the Company pursuant to an
irrevocable authority given to the Board by the Company to act
for and on its behalf; and
(p) any direction, approval, discretion or decision given,
exercised or made by the Chairman under this Agreement will be
deemed to be a direction, approval, discretion or decision
given, exercised or made by the Company pursuant to an
irrevocable authority given to the Chairman by the Board to
act for and on behalf of the Company.
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2. ENGAGEMENT AND PLACE OF WORK
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2.1 ENGAGEMENT
The Company engages the Consultant to:
(a) provide the Services to the Company and the 30DC Group for the
Term unless the Engagement is terminated by either party in
accordance with the terms of this Agreement;
(b) serve the Company in such additional offices or capacities as
may be assigned to him by the Board from time to time
consistent with the Services; and
(c) report to the Board or to such other persons as the Board may
nominate from time to time.
2.2 PRINCIPAL PLACE OF WORK
The Company acknowledges and agrees that the Consultant shall perform
the Services at the Principal Place of Work or such other place
nominated by him provided he is able to perform the Services as
determined by the Board.
3. COMMENCEMENT
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The Consultant will commence work on the Commencement Date.
4. REMUNERATION AND REVIEW
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4.1 REMUNERATION
(a) The Company will pay the Remuneration to the Consultant as
remuneration for his services.
(b) The Remuneration will comprise the Service Fees and other
entitlements as set out in Item 6 of the Schedule and shall
otherwise be adjusted in accordance with this Agreement.
(c) Subject to clause 4.1(d), the Consultant will be entitled to
receive the Remuneration wholly by way of service fees or
partly by way of service fees and partly by way of such other
benefits as the Company may lawfully provide to him, as the
Consultant may elect from time to time consistent with the
policy of the Company on such matters, provided that the cost
to the Company, including any applicable tax, does not exceed
the Remuneration.
(d) The Service Fees will be paid to the Consultant monthly in
arrears, on or before the 15th day of each Month following the
Month for which the payment is made, apportioned, if necessary
on a daily basis, or as otherwise agreed between the parties
in writing.
(e) The Remuneration is consideration to the Consultant for all
time worked or time off in lieu of time worked, as such, the
Consultant is not entitled to additional payment for
Reasonable Additional Hours worked, or time off in lieu of
Reasonable Additional Hours worked.
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4.2 TAX
(a) Where the Consultant is a bona fide self-employed person he
shall be solely responsible for making all his own returns and
deductions with regard to tax and national insurance in
respect of the Remuneration and the Consultant agrees to
indemnify the Company in respect of any and all claims that
may be made by the relevant authorities against the Company in
respect of tax and national insurance.
(b) Where the Consultant is not a bona fide self-employed person,
invoices should quote the Consultant's national insurance
number. In this instance national insurance and income tax at
standard rates will be deducted by the Company before payment
is made. If the Consultant's personal tax liability is at a
higher rate then he must notify the Inland Revenue
accordingly.
4.3 PERFORMANCE BONUS
In addition to the Remuneration, the Board and the Consultant will
agree upon milestones for bonus achievement. The actual bonus amount
and the method of payment will be determined by the Board in its
absolute discretion, details of which are set out in Item 7 of the
Schedule.
4.4 REVIEW
(a) The Remuneration will be subject to annual review by the
Board. At each review, the Remuneration will be reviewed
having regard to such matters as the responsibilities of the
Consultant, the performance of the Immediate Edge Business,
the performance of the Company, the performance of the
Consultant, the remuneration available outside the 30DC Group
for persons with responsibilities and experience equivalent to
those of the Consultant and who provide services similar to
the Services and the benefits which have accrued and will
accrue to the Consultant under this Agreement. At each review
the Remuneration may be increased by such amount as the Board
may determine and any such increase will take effect on the
date determined by the Board.
(b) The Consultant may, at any time in writing, request that the
Remuneration be varied. The Company may after a full
investigation into performance agree to the variation of the
Remuneration and the terms of this Agreement shall be altered
accordingly.
(c) The Company shall not unreasonably refuse a request for
variation of the Remuneration. However, it shall not be
unreasonable for the Company to refuse such a request where
the request is made sooner than six Months after an earlier
agreement has been reached between the parties in relation to
the Remuneration. (d) In the event that there is a change in
the cost of the other entitlements provided to the Consultant
arising from any cause whatsoever, the Company shall have the
right after notification to the Consultant to alter the terms
of the Agreement accordingly.
5. EXPENSES AND OTHER ENTITLEMENTS
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5.1 REIMBURSEMENT OF EXPENSES
The Company will reimburse the Consultant for all reasonable business
class travel, hotel, entertainment, home telephone, internet and other
expenses properly incurred by him in the provision of the Services
provided that the Consultant must produce to the Chairman such records
and receipts verifying those expenses as the Chairman may reasonably
request in accordance with the Company's policy in this regard from
time to time.
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5.2 OTHER ENTITLEMENTS
Without limiting clause 5.1 in any way, the Consultant will also be
entitled to:
(a) use a Company credit or debit card linked to a designated
expense account for such expenses as are reasonably incurred
by the Consultant in the performance of the Services provided
that such expenses are supported by appropriate receipts; and
(b) an appropriate level of coverage for a senior executive under
the Company's director's and officer's insurance.
5.3 ENTITLEMENT OF THE CONSULTANT ON THE OCCURRENCE OF A TAKEOVER EVENT OR
TRADE SALE
(a) For the purposes of this clause 5.3:
(i) a TAKEOVER EVENT occurs if, at any time during the
Term, an off-market bid, a market bid, scheme of
arrangement or offer or invitation is made to all
shareholders of the Company to purchase or otherwise
acquire shares from them within a specified period
and the bid, scheme or offer becomes unconditional,
and:
(A) the offeror has at least 50% of the voting
power in the Company; or
(B) the directors issue a statement recommending
that the bid, scheme or offer (as the case
may be) be accepted or approved by
shareholders of the Company; and
(ii) TRADE SALE means a sale of:
(A) the main operating subsidiaries of the
Company;
(B) all or a substantial part of the 30DC Group;
or
(C) all or substantially all of the assets of
the Company,
during the Term.
(b) Notwithstanding the provisions of clause 11.1, if a Trade Sale
or a Takeover Event occurs and this Agreement is effectively
terminated, then in addition to any other entitlements due to
the Consultant in accordance with the terms of this Agreement,
the Consultant will be entitled to:
(i) be paid a lump sum equal to at least the total of all
amounts that, if the Agreement had continued until
the end of the Term, the Company would have become
liable to pay to the Consultant because of the
Agreement continuing during that period; and
(ii) be issued with that number of shares in the Company
comprising 50% of the Service Fees.
6. PERFORMANCE OF SERVICES
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(a) During the course of the Engagement, the Consultant:
(i) will carry out the Services to his best reasonable
skill and ability and in so doing he must use his
best endeavours to further the prosperity and enhance
the reputation of the Company and the 30DC Group and
must comply with all lawful orders and instructions
given to him by the Board; and
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(ii) must not, without the prior written consent of the
Board, directly or indirectly be engaged or
interested in any other business activity competing
with that of the 30DC Group but this will not
preclude the Consultant from holding or acquiring not
more than 5% of the shares or securities of any
corporation officially listed on any recognised stock
exchange or holding or acquiring any real property by
way of passive personal investment which holding or
acquisition is not inconsistent with the intent of
the foregoing provisions of this clause.
(b) Unless absent on leave as provided under this Agreement or
through illness or injury, during the course of the Engagement
the Consultant must devote the whole of his time and attention
during normal working hours and at such other times as may be
reasonably necessary to the provision of the Services and to
the business of the 30DC Group.
(c) The Consultant acknowledges that:
(i) the Remuneration includes a provision for the
Reasonable Additional Hours which the Consultant may
be required to work; and
(ii) he has no further entitlement to pay or time off in
lieu for all such Reasonable Additional Hours worked
by him.
(d) The Consultant must undertake such travel during the course of
the Engagement as the Company may reasonably require from time
to time.
(e) In addition to the above provisions the Consultant must:
(i) carry out all lawful and reasonable instructions
given to the Consultant by the Board in relation to
the Services;
(ii) serve the Company and the 30DC Group faithfully,
efficiently and diligently and exercise all due care
and skill in the performance of the Services;
(iii) refrain from acting or giving the appearance of
acting contrary to the interests of the Company and
the 30DC Group;
(iv) not solicit or attempt to persuade any clients of the
Company and the 30DC Group to use the services of any
other business;
(v) keep confidential all raw data and trade secrets the
Consultant acquires during the Engagement with the
Company and the 30DC Group, including techniques,
product information, client lists and any other
information which is confidential to the Company and
the 30DC Group; and
(vi) carry out any other duties reasonably required by the
Company and the 30DC Group to the best of the
Consultant's skills and abilities.
(f) Each of the Company and the Consultant will act towards each
other with respect to this Agreement and all matters
incidental to it in good faith.
7. Policies and procedures
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(a) The Company, in order to comply with its legal obligations
best practice, will from time to time introduce policies and
procedures with respect to, for example, workplace
surveillance (including email and internet usage),
anti-discrimination, equal employment opportunity and
occupational health and safety.
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(b) The Consultant agrees to read and become familiar with such
policies and procedures and comply with them and encourage
others to do likewise.
(c) These policies and procedures do not form part of this
Agreement and are not incorporated into the terms and
conditions of the Engagement with the Company.
(d) A policy or procedure introduced by the Company may contain
provisions to redress breach of that policy. Steps taken by
the Company to redress breach of a policy or procedure by the
Consultant may include warning or termination.
8. Intellectual Property
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(a) All rights of any nature in relation to Intellectual Property
developed or created by the Consultant using the Company's
resources, on the Company's premises or in the course of the
Engagement, whether such Intellectual Property was created
during business hours or not, will vest in the Company upon
creation, and the Consultant will have no claim to or interest
of any nature in such Intellectual Property, unless otherwise
agreed in writing by the Consultant and the Company.
(b) Notwithstanding clause 8(a), and to the extent possible, the
Consultant shall assign to the Company all present and future
rights in relation to Intellectual Property developed or
created by the Consultant using the Company's resources, on
the Company's premises or in the course of the Engagement.
(c) The assignment in clause 8(b) is:
(i) without restriction as to use or territory;
(ii) in perpetuity; and
(iii) effective without any further payment to the
Consultant, whether by way of royalty or otherwise,
in consideration for the assignment.
(d) The Consultant must do all things necessary to give effect to
this assignment.
(e) The Consultant gives consent to the Company for all acts or
omissions (whether occurring before or after the date of this
Agreement) made in relation to any work created during the
course of the Engagement, which would otherwise be an
infringement of the Consultant's moral rights in the relevant
work.
9. CONFIDENTIALITY
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(a) During the Engagement and at all times after the termination
of the Engagement, the Consultant must not, except:
(i) in the proper course of his duties;
(ii) as may be required by law; or
(iii) with the prior consent in writing of the Chairman,
divulge or disclose to any other person, firm or corporation
any confidential information relating to the Company or the
30DC Group, being specifically any raw data, technology, or
process which is confidential or of a sensitive nature and not
already in the possession of the Consultant prior to the
Engagement or in the public domain, or any trade secrets of
which he may become possessed whilst employed in any way
whatsoever by the Company (collectively referred to as the
CONFIDENTIAL INFORMATION).
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(b) The Consultant must not use or attempt to use the Confidential
Information in any manner which will or may cause or be
calculated to cause injury or loss to the Company or the 30DC
Group.
(c) During the Term, the Consultant must use his best endeavours
to prevent the unauthorised disclosure of any of the
Confidential Information by or to third parties.
(d) The provisions of clauses 9(a) and 9(b) of this Agreement will
continue to apply after termination of the Engagement without
limitation in point of time but will cease to apply to
information or knowledge which may come into the public
domain, other than by breach by the Consultant of this
Agreement.
(e) Since any breach of the provisions of clauses 9(a), 9(b) and
9(c) of this Agreement may diminish the value of the
Confidential Information, the Consultant acknowledges that the
Company, for itself and on behalf of the 30DC Group, will be
entitled to equitable relief, including but not limited to
injunctive relief and specific performance, without showing or
proving actual damages sustained by the Company or the 30DC
Group and the Consultant also acknowledges that the Company
and the 30DC Group will also be entitled to money damages.
10. CONFLICT OF INTEREST
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(a) The Consultant must at the earliest opportunity, disclose in
writing to the Board any financial, legal, professional or
personal interest that may conflict with the provision of the
Services and the conduct of his duties or responsibilities
under this Agreement or with the business of the Company and
the 30DC Group.
(b) The Consultant may, with the prior written consent of the
Board, engage in activities outside the Engagement where:
(i) the Consultant's involvement in such activities does
not affect the provision of the Services;
(ii) there is no conflict of interest;
(iii) there is no inconvenience to the Company; and
(iv) no Company property or resources are used for such
activities without express permission of the Board.
11. TERMINATION
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11.1 RESTRICTION ON TERMINATION
Subject to the provisions of clause 11.2, this Agreement may not be
terminated by either party during the 24 Month period commencing on the
Commencement Date.
11.2 BY THE COMPANY WITHOUT NOTICE
(a) Where the Board decides to terminate the Agreement for reasons
specified in this clause, it may do so by giving notice
effective forthwith and without payment of any fees,
allowances or incentives of any nature, other than as accrued
to the date of termination. Termination without notice may
occur in circumstances where the Consultant:
(i) is or becomes incapacitated by illness or injury from
performing the Services for a period of not less than
three consecutive Months or any periods aggregating
not less than three Months in any period of 12
Months;
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(ii) is guilty of any serious or wilful misconduct;
(iii) is charged with any criminal offence which in the
reasonable opinion of the Board brings the
Consultant, the Company or the 30DC Group into
serious disrepute;
(iv) becomes prohibited by law from becoming or holding
office as a director;
(v) is or becomes bankrupt or makes a composition or
arrangement with his creditors generally or takes
advantage of any statute for the relief of insolvent
debtors;
(vi) is or becomes of unsound mind or a person whose
person or estate is liable to be dealt with under any
law relating to mental health; or
(vii) fails to carry out any provision of this Agreement
(the onus of proof of which, upon the balance of
probabilities, will rest with the Company) and does
not remedy that failure within seven days after
written notice to the Consultant requiring it to be
remedied.
11.3 BY THE COMPANY WITH NOTICE
Subject to clause 11.1, the Company may terminate the Agreement at any
time by giving six Months' notice in writing to the Consultant.
11.4 BY THE CONSULTANT WITH NOTICE
Subject to clause 11.1, the Consultant may terminate the Agreement at
any time by giving six Months' notice in writing to the Company. If the
Consultant does not give the required period of notice then the Company
may withhold money equivalent to the Remuneration for the shortfall in
the required period of notice, on the basis that amount be forfeited by
the Consultant to the Company.
11.5 CONSEQUENCES OF TERMINATION
Where either the Consultant or the Company gives notice of termination
of the Agreement, on the date that notice is given or at any time after
that during the currency of the notice, the Company will pay the
Consultant a lump sum equal to at least the total of all amounts that,
if the Engagement had continued until the end of the required period of
notice, the Company would have become liable to pay to the Consultant
because of the Engagement continuing during that period. If the Company
makes that payment then the Agreement terminates on tender by the
Company to the Consultant of that lump sum.
11.6 BOARD REACTION TO TERMINATION
If at any time either the Company or the Consultant gives the other
notice of termination of the Agreement, the Board will immediately be
entitled to:
(a) appoint, with effect from such date as may be designated by
the Board, another person to undertake, as successor to the
Consultant, the performance of the Services and the duties and
responsibilities that were being carried out by the Consultant
immediately prior to the date upon which any such notice of
termination is given; and
(b) require the Consultant to assist any person appointed as his
successor to perform the Services and to perform all such
tasks and provide all such assistance to the successor as the
Board may deem necessary and for such period within the six
Month period of notice as the Board may determine to ensure an
orderly handover of the Consultant's duties and
responsibilities to the successor.
11.7 RETURN OF COMPANY PROPERTY
The Consultant expressly covenants that he shall immediately upon the
termination of the Agreement deliver up to the Company all
correspondence, documentation, specifications, papers, records
(including for the avoidance of doubt all records held in electronic
format) and all other property of the 30DC Group which may be in his
possession or under his control and the Consultant warrants that no
copies of any such correspondence, documentation, specifications,
papers, records or other property shall be retained by him.
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12. REAPPOINTMENT
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12.1 REAPPOINTMENT
Subject to clause 12.2:
(a) at least six Months prior to the expiration of the Term, the
Company and the Consultant shall confer with the view to
reaching agreement as to whether the Consultant shall be
re-appointed for a further term, and if so, on the terms for
re-appointment; and
(b) each party shall advise the other no later than four Months
(or such other period as may be agreed in writing) prior to
the expiration of the Term of their decision regarding
re-appointment pursuant to clause 12.1(a).
12.2 FURTHER AGREEMENT
Upon agreement in relation to re-appointment of the Consultant in
accordance with this clause 12:
(a) the Consultant shall enter a further agreement on termination
or completion of this Agreement;
(b) the continued service of the Consultant shall be recognised
under the new agreement so as to avoid any break of service;
and
(c) any accrued or pro-rata entitlements shall be carried forward
into the new agreement.
13. GRIEVANCE AND DISPUTE RESOLUTION PROCEDURE
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13.1 DISPUTE
If any dispute arises out of this Agreement (DISPUTE), a party to the
Agreement must not commence any court or arbitration proceedings unless
the parties to the Dispute have complied with the following provisions
of this clause 13, except where a party seeks urgent interlocutory
relief.
13.2 NOTICE OF DISPUTE
A party to this Agreement claiming that a Dispute has arisen out of or
in relation to this Agreement must give written notice (NOTICE) to the
other party to this Agreement specifying the nature of the Dispute.
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13.3 DISPUTE RESOLUTION
If the parties do not agree within seven days of receipt of the Notice
(or such further period as agreed in writing by them) as to the:
(a) dispute resolution technique (e.g. expert determination) and
procedures to be adopted;
(b) timetable for all steps in those procedures; and
(c) selection and compensation of the independent person required
for such technique,
the parties must mediate the Dispute in accordance with the mediation
rules of English law and the mediator will be selected by the English
courts.
14. NOTICES
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(a) A party must ensure that a notice it sends under this
Agreement is in writing.
(b) Subject to the requirements for service in any relevant
legislation, a notice is deemed to be given:
(i) if sent by hand, at the time of delivery;
(ii) if sent by facsimile transmission, at the time
recorded on the transmission report;
(iii) if sent by e-mail, subject to the sending party
receiving proof of a successful transmission, on the
Business Day it is sent;
(iv) if the notice is sent by prepaid post, seven Business
Days after posting; and
(v) if the notice is sent by registered mail, seven
Business Days after the sender sends the notice.
(c) Clause 14(b)(ii) does not apply if:
(i) the intended recipient promptly informs the sender
that the transmission was received in an incomplete
or garbled form; or
(ii) the transmission report of the sender indicates a
faulty or incomplete transmission.
(d) If delivery or receipt is not on a Business Day or if receipt
is later than 5.00 pm, local time at the place of delivery,
then the notice is deemed to have been delivered and received
on the next Business Day.
(e) Subject to clause 14(g), a party must address a notice as
follows:
If to the Consultant:
Address: Xxx Xxxxx
0 Xxxxxx Xxxx
Xxxxxxx, Xxxxxxxx XX0 XXX
Xxxxxx Xxxxxxx
Email: XXX@XXXXXXX.XXX
Attention: Xxx Xxxxx
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CONSULTANCY AGREEMENT HWL EBSWORTH
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If to the Company:
Address: 30DC, INC.
00 Xxxxxxxxx Xxxx
Xxxxxx Xxxxx XXX 0000
XXXXXXXXX
Facsimile: x00 0 0000 0000
Email: XXXXXXX.XXXXX@XXXXXXXXXXXXXX.XXX.XX
Attention: Xxxxxxx Xxxxx
(f) A party must notify the other party that it has changed its
address.
(g) A party must send a notice to the other party's last notified
address.
(h) Despite anything in this clause 14, a party does not
effectively send a notice if that party knows that the
intended recipient will not see the notice for the whole or a
substantial part of the period in the notice.
15. GENERAL PROVISIONS
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15.1 GOVERNING LAW
This Agreement is governed by the laws of England and the parties agree
to submit to the non-exclusive jurisdiction of the English courts.
15.2 ENTIRE AGREEMENT
(a) This Agreement contains the entire understanding between the
parties in relation to its subject matter.
(b) There are no express or implied conditions, warranties,
promises, representations or obligations, written or oral, in
relation to this Agreement other than those expressly stated
in it or necessarily implied by law.
15.3 NO PARTNERSHIP OR EMPLOYMENT
(a) Nothing in this Agreement is intended to create a partnership
between the Consultant and the Company.
(b) This Agreement does not constitute the relationship of
employee and employer between the Consultant and the Company.
15.4 COSTS AND DUTY
(a) The Company will pay the costs connected with the negotiation,
preparation and execution of this Agreement.
(b) The Company must pay all stamp duty and other government
imposts payable in connection with this Agreement and all
other documents and matters referred to in this Agreement when
due.
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CONSULTANCY AGREEMENT HWL EBSWORTH
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15.5 NO RELIANCE
The Consultant acknowledges that the Consultant has entered into this
Agreement without relying on any representation by the Company.
15.6 NO WAIVER
(a) No failure, delay, relaxation or indulgence by a party in
exercising any power or right conferred upon it under this
Agreement will operate as a waiver of that power or right.
(b) No single or partial exercise of any power or right precludes
any other or future exercise of it, or the exercise of any
other power or right under this Agreement.
15.7 SEVERABILITY
If any provision of this Agreement is invalid, void or unenforceable,
all other provisions which are capable of separate enforcement without
regard to an invalid, void or unenforceable provision are and will
continue to be of full force and effect in accordance with their terms.
15.8 BINDING NATURE
This Agreement binds and inures for the benefit of the parties, their
respective successors (including, in the case of natural persons, their
legal personal representatives) and permitted assigns.
15.9 NO VARIATION
This Agreement may not be varied except by written instrument executed
by the parties.
15.10 NO ASSIGNMENT
The Consultant may not without the prior written consent of the Company
assign or encumber all or any part of his rights under this Agreement
or attempt or purport to allow another person to assume the
Consultant's obligations under this Agreement.
15.11 COUNTERPARTS
(a) The parties may execute this Agreement in two or more
counterparts.
(b) The parties deem that each counterpart is an original.
(c) All counterparts together constitute one instrument.
15.12 EXTENT THAT THE LAW PERMITS
The terms of this Agreement apply to the extent the law permits.
15.13 SPECIFIC PERFORMANCE
The parties agree that:
(a) damages for breach of this Agreement are inadequate; and
(b) a party is entitled to specific performance or injunctive
relief or both.
15.14 CUMULATIVE RIGHTS
A party's rights under this Agreement are in addition to the rights of
the parties at law.
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CONSULTANCY AGREEMENT HWL EBSWORTH
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SCHEDULE
ITEM 1 June 2009
Commencement Date
ITEM 2 The period of three years from the Commencement Date
Term
ITEM 3 0 Xxxxxx Xxxx, Xxxxxxx, Xxxxxxxx XX0 XXX, Xxxxxx Xxxxxxx
Principal Place of Work
ITEM 4 The services provided by the Consultant will include:
Services
1. devoting his time and attention, including during the Company's
normal business hours, to the business and to the conduct of the
affairs of the Immediate Edge Business, the Company and the rest of
the 30DC Group, as he may be directed;
2. using his best and reasonable efforts to promote the interests of
the Immediate Edge Business, the Company, the rest of the 30DC
Group and associated entities to aid the profitable operation of
the Immediate Edge Business, the Company and the rest of the 30DC
Group;
3. reporting to the Board of the Company; and
4. leading and managing the day-to-day operations of the Immediate
Edge Business as the Company may direct and any other related work
that shall reasonably be requested by the Board.
ITEM 5 US$
Service Fees
ITEM 6 US$250,000 + US$ + US$ =
Remuneration US$
1. If the revenue of the 30DC Group in any year of the Agreement
ITEM 7 calculated from the Commencement Date is doubled, the Company shall
Performance bonus issue to the Consultant that number of shares in the Company
comprising 50% of the Service Fees.
2. The Consultant will be entitled to participate in any senior
executive stock option plan adopted by the Company on listing on
the OTC Bulletin Board.
3. The Consultant will be entitled to other such benefits and
incentive payments, as may be deemed appropriate by the Company and
the 30DC Group
EXECUTED AS AN AGREEMENT
SIGNED SEALED AND DELIVERED for and on behalf of )
30DC, INC. by authority of the directors in the )
presence of: )
/s/ Xxxxxxx Xxxxx /s/ Xxxxxx Xxxx
.......................................... ................................
Secretary/Director Director
Xxxxxxx Xxxxx Xxxxxx Xxxx
.......................................... ................................
Name (please Print) Name (please Print)
SIGNED by XXX XXXXX in the presence of: )
)
/s/ Xxx Xxxxx
.......................................... ................................
Signature of Witness Signature of XXX XXXXX
0 Xxxxxx Xxxx, Xxxxxxx,
Xxxxxxxx XX0 XXX, Xxxxxx Xxxxxxx
.......................................... ................................
(Print) Name of Witness Address
