CONSULTANCY AGREEMENT
This agreement (“Agreement”), made and entered into as of May 1, 2008 in
Makati City, Metro Manila, Philippines by and between:
PARTIES
(1)
(2)
RECITALS
(A)
The Company is an advertising agency providing original, creative and
high value ideas for clients for television, print, outdoor, and other
media.
(B)
The Consultant is a self-employed consultant and is willing to make
available his time and his services to the Company.
(C)
The Company has requested the Consultant to help provide strategic
guidance in increasing the revenues of the Company, to introduce the
Company to potential new businesses, and to explore new capabilities
for the growth of the Company. The Consultant has agreed to provide
such services for the consideration and upon the terms and conditions
contained below.
IT IS AGREED AS FOLLOWS:
1.
DEFINITIONS AND INTERPRETATION
1.1
In this Agreement the following words and expressions shall have the
following meanings save where the context provides or requires otherwise:
“Board”
the Board of Directors from time to time of the Company;
“Business”
provision of advertising services to the various clients of the
Company;
“Business Day”
days when the banks are open in Makati City, Metro Manila,
Philippines.
“Commencement Date”
the date of this Agreement;
“Group”
the Company and the other members of Lowe Worldwide.
“Net Revenues”
revenues earned by the Company from advertising services
rendered to its clients, net of costs directly attributable to the performance
of the said services.
“Services”
the services of the Consultant to the Company described in Recital
C above;
“Termination Date”
the date the Agreement terminates whenever arising and for
whatever reason.
1.2
References to clauses and sub-clauses are references to clauses and subclauses in this Agreement.
1.3
In this Agreement words importing the masculine gender include the
feminine and words importing the singular include the plural.
2.
APPOINTMENT OF CONSULTANT
2.1
The Company hereby appoints the Consultant and the Consultant hereby
accepts such appointment upon the terms and conditions contained in this
Agreement to provide the Services.
2.2
Subject to termination in accordance with the terms of this Agreement,
such appointment will take effect the Commencement Date and will
continue unless and until terminated by (i) the Company by three months
notice in writing to the Consultant, or (ii) by the Consultant by three
months’ notice in writing to the Company.
2.3
The Consultant will provide the Services under this Agreement personally
and will not assign or sub-contract such Services to any other person, firm,
company or organization without the prior written consent of the Company
which consent shall not be unreasonably withheld or delayed.
Nothing in this Agreement shall be construed as preventing the parties
from entering into one-off projects outside of the Services or the scope or
subject of this Agreement. Such off project(s) shall be covered by a
separate agreement and fee arrangement as may be mutually agreed upon.
3.
FEE
3.1
In consideration of the Services to be rendered by the Consultant under
this Agreement, the Company will pay to the Consultant a fixed monthly
fee in the amount of [
] (Php .00) (the “Fee”). [Describe other fee
arrangement as may be agreed or modified by the parties.]
3.2
In addition to the Fee, the Consultant will be entitled to five percent (5%)
of Net Revenues earned by the Company and already paid to the Company
for advertising services rendered to local and international clients that were
recruited with the assistance and active involvement of the Consultant (the
“Share”).
3.3
The Company will pay the Fee to the Consultant on the 15th day of the
next month. The Company will pay the Share to the Consultant on the 15th
day of the month succeeding its receipt of the client’s payment for
advertising services rendered by the Company.
3.4
The Fee will be inclusive of any creditable withholding tax, which will be
payable to the Bureau of Internal Revenue, in connection with the supply
of the Services by the Consultant and the Company will provide proof of
its remittance of the creditable withholding tax withheld to the Consultant.
3.5
The Consultant will not be entitled to any other fees or payments save as
expressly stated in clauses 3.1, 3.2, and 3.3.
4.
EXPENSES
4.1
The Company will reimburse to the Consultant all reasonable travelling
and other out-of-pocket expenses which the Consultant may from time to
time reasonably and properly incur in connection with the provision of the
Services.
4.2
The Consultant must submit his written request for reimbursement
(accompanied by the relevant receipts and vouchers) to the Company as
soon as practicable following the last working day of the month in which
such expenses were incurred, which will be payable by the Company
within 15 days from receipt of such request.
5.
STATUS
5.1
The relationship of the Consultant to the Company will be that of
independent contractor and at no time will the Consultant hold himself out
as being an employee or agent of the Company or any member of the
Group. This provision shall not be interpreted to disqualify the consultant
from being elected as a director of the Company or a signatory to its bank
accounts.
5.2
This Agreement constitutes a contract for the provision of services and not
a contract of employment, and accordingly, the Consultant will be fully
responsible for and will indemnify the Company for and in respect of any
tax and any other liability, deduction, contribution, assessment or claim
arising from or made in connection with the performance by the Company
of its obligations under this Agreement or the performance by the
Consultant of the Services. The Consultant will further indemnify the
Company and each and every member of the Group against all reasonable
costs and expenses and any penalty, fine or interest incurred or payable by
the Company in connection with or in consequence of any such liability,
deduction, contribution, assessment or claim, other than where such
liability, deduction or contribution arising out of the assessment or claim
arises out of the Company’s negligence or willful default. The Company
may, at its option, satisfy such indemnity (in whole or in part) by way of
deduction from the any of the Fee, Share or expenses to be paid by the
Company to the Consultant under this Agreement.
6. CONSULTANT’S OBLIGATIONS
During the term of this Agreement, the Consultant will:
6.1
render and perform the Services to the best of his skill and ability and
endeavour to promote the interests and growth of the Company through
the active introduction of, exploration of, involvement in new capabilities
and new businesses and will promptly give to the Board or to whomsoever
the Board may direct (in writing, if so requested) all such information and
reports as it may reasonably require in connection with matters relating to
the provision of the Services or the business of the Company;
6.2
exercise only such powers and perform such services as may from time to
time be vested in or assigned to him by the Board, whether for a specific
purpose as determined by the Board or to provide the Services generally,
and will not, except with the prior written consent of the Board, commit
the Company to any legally binding agreement or hold himself out as
being able to commit the Company or incur any liability on behalf of the
Company or in any way pledge or purport to pledge the credit of the
Company.
7.
OBLIGATIONS OF THE COMPANY
The Company will cooperate with the Consultant to such extent as
shall be reasonably required to enable the Consultant to carry out the
Services.
8.
CONFIDENTIALITY AND PROPRIETARY RIGHTS
8.1
The Consultant will not, for his own purposes or that of a third party, use
or disclose in any way or form, whether before or after the Termination
Date, to any person, firm, company or organization any trade secret or
confidential information belonging to the Company or to the Group, or
relating to a client, supplier, agent, business connection or associate of the
Company which are acquired either directly or indirectly by the Consultant
as a result of the provision of the Services and the performance of his
obligations under this Agreement, provided that the Consultant may
disclose or use such trade secrets or confidential information to the extent
authorized by the Company in writing or as may be necessary in the
performance of the Services or as required by law.
8.2
The Consultant agrees that at any time during the term of this Agreement,
and at any time thereafter, he will not (either directly or indirectly and
either alone or jointly with any other person, firm, company or other
organization) set up or acquire (other than from the Company), join, or act
as a consultant for any advertising agency at any point from the
Commencement Date to one year after the Termination Date.
8.3
During the term of this Agreement and at any time thereafter, the
Consultant will not, without the prior written approval of a director of the
Company, make any statement (whether written or oral) to or provide any
material for publication by television, radio, film, webcast or other similar
media and will not write any book or article or otherwise publish
(regardless of the medium of such publication) any matter on or relating to
the Business and affairs to the Company (including, without limitation,
any matter relating to any member of the Group, client or other connection
of the Company which came to his knowledge in the performance of the
Services).
9.
EXCLUSIVITY
Subject to the Consultant’s compliance with the terms of this Agreement,
he will be free to provide his services as a consultant to any other person,
firm, company or organization that are not advertising agencies or do not
engage in the same Business as that of the Company’s.
10.
TERMINATION
10.1
This Agreement will automatically terminate upon the death of the
Consultant.
10.2
Notwithstanding any other provision in this Agreement, the Company will
be entitled to immediately terminate this Agreement if the Consultant:
10.2.1
commits a serious breach of any of the provisions of this Agreement
or fails to perform the Services adequately or at all for whatever
reason; or
10.2.2
is guilty of conduct tending to bring himself or the Company into
disrepute or is convicted of a criminal offense under the Philippine
laws or commits an act of dishonesty whether relating to the
Company or otherwise; or
10.2.3
becomes bankrupt or makes any arrangement or composition with
his creditors or takes advantage of any statute that affords relief for
installment debtors; or
10.2.4
ceases to be available to discharge the Services for any reason for a
period of 30 days or more.
10.3
At any time after the Termination Date, the Consultant will not represent
himself as being in any way connected with the Company or any member
of the Group
10.4
Upon termination of this Agreement for any reason, the Consultant will
deliver to the Company all letters, publications, papers, discs, tapes,
reports, documents, keys, software, computer peripherals, communications
equipment, electronic documents, data files and other items or property
which have been prepared by him or come into his possession by virtue of
this Agreement and/ or the performance of the Services or which relate to
the business of the Company or any member of the Group and all copies
thereof regardless of the medium on which such copies are recorded or
stored. In respect of any such items or information held on any computer
software data files or other equipment belonging to the Consultant, he
hereby undertakes to delete any such items and information and all copies
forthwith upon the termination of this Agreement.
10.5
Upon the termination of this Agreement, the Consultant will not have any
claims for damages or compensation of any nature whatsoever and will
merely be entitled to any outstanding Fees and/ or Share due to him up to
the termination Date pursuant to clause 3 and/ or clause 4. Any fees paid
after the Termination Date will be repaid to the Company by the
Consultant or deducted by the Company from any fees, expenses or other
payments due or owning by the Company to the Consultant.
11. Covenants
11.1
The Consultant agrees that the during the term of this Agreement or within
one year of the Termination Date that:
11.1.1 he will not nor will he attempt to solicit, interfere with, procure or entice
away either alone or jointly with any other person, firm, company or other
organization, directly or indirectly, any employee of the Company;
11.1.2 he will not nor will he attempt to solicit, interfere with, procure or entice
away either alone or jointly with any other person, firm, company or other
organization, directly or indirectly, any client of the Company; and
11.1.3 he will not either directly or indirectly and either alone or jointly with any
person have any material interest in any business or concern which
provides services similar to or competing with those provided by the
Company.
11.2
The Consultant acknowledges that the restrictions set out in clause 11.1 are
reasonable and necessary to protect the legitimate commercial interests of
the Company but that each such restriction ids distinct and severable from
the others and if at any time one or much of such restrictions is/ are
determined to be unenforceable (whether wholly or to any extent) the
enforceability of the remaining restrictions (or the same restriction to any
other extent) shall not in any way be affected or impaired.
12. MISCELLANEOUS
12.1
This Agreement constitutes the entire Agreement between the parties with
respect to its subject matter and shall have effect to the exclusion of any
other memorandum, agreement or understanding of any kind between the
parties preceding the date of this Agreement relating to the provision of the
Consultant’s time or services in whatever manner.
12.2
This Agreement may only be amended, superseded, cancelled or any of its
terms and conditions waived by written variation agreement signed by or
on behalf of the Company and the Consultant or, in the case of waiver, of
the party waiving compliance.
12.3
The failure or the delay on the part of either party to exercise or enforce
any right, power or privilege under this Agreement will not operate as a
waiver, nor will the single or partial exercise of any right, power or
privilege. If either party expressly waives any breach, such waiver will not
operate as a waiver of a similar breach on another occasion or as a waiver
of any other breach.
12.4
The parties will pay their own legal, professional and other costs in
connection with the preparation and completion of this Agreement.
12.5
The headings contained in this Agreement are for the purpose of
convenience only and do not form part of and shall not affect the
construction of this Agreement or any part of it.
12.6
This Agreement does not create any rights enforceable by any person who
is not a party in accordance with the terms of this Agreement, except that
the terms of the Agreement may be enforced by any member of the Group
and the Company will be entitled to assign the benefit of this Agreement to
any member of the Group.
13. NOTICES
Any notice required or authorized to be given by any party under the
provisions of this Agreement will be in writing and any notice or document
relating to this Agreement may be served or delivered or sent by fax or email to
the party to be served at its address given in this Agreement or at such address as
may be duly notified for such purpose from time to time. Any notice served
personally will be deemed to have been served on the day of delivery. Any notice
sent by post will be deemed to have been served 48 hours after it was posted and
if sent by fax or email at noon on the Business Day following the day of
transmission (and in proving such service, it will be sufficient to produce a receipt
for the notice signed by or on behalf of the addressee or to prove that the envelope
containing the notice was properly addressed as a prepaid first class recorded
delivery letter or a transmission report from the sender’s fax machine indicating
that the fax was sent entirety to recipient’s fax number or a computer print out
indicating that the email message was sent to the recipient’s email address).
IN WITNESS, whereof this Agreement has been executed and delivered
as a deed on the day and year first above written.
SIGNED by
by:
)
)
)
_______________________________
President
In the presence of:
Witness
Signature: ………………………………….
Name:
………………………………….
Address:
………………………………….
Occupation:………………………………….
SIGNED by
)
____________________________________
in the presence of:
)
………………………………
Witness
Signature: …………………………………..
Name:
…………………………………..
Address: …………………………………...
Occupation:………………………………….
ACKNOWLEGDEMENT
REPUBLIC OF THE PHILIPPINES)
MAKATI CITY
) S.S.
BEFORE ME, a Notary Public for in Makati City, on this ___ day of
September, 2008, personally appeared:
NAME
CTC NO./ PASSPORT
DATE/ PLACE ISSUED
both known to me and to me known to be same persons who executed the
foregoing Consultancy Agreement, and they acknowledged to me that the same is
their free voluntary act and deed, the voluntary act and deed of the corporation she
represents, consisting of ten (10) pages including this page wherein this
Acknowledgement is written and signed by the parties and their witness herein.
WITNESS MY HAND SEAL on the date at the place above written.
Doc. No. : ________;
Page No. : ________;
Book No. : ________;
Series of 2008.