1. 2XL Media Solutions UK Ltd (company number 06188954) and
2. Sales Agent
1. The Consultant is engaged in business offering sales consultancy services in relation to internet sales and advertising and has considerable skill. Knowledge and experience in that field.
2. In reliance on that skill, knowledge and experience the company wishes to engage the consultant to provide services in relation to internet sales and advertising.
1.1 In this agreement:
(a) “Board” means the board of directors for the time being and from time to time of the company;
(b) “Commission” means the commission payable to the consultant in accordance with Clause 4;
(c) “Confidential Information” includes all and any suppliers, patents, trademarks and services marks, rights in designs, trade, business or domain names, database rights, topography rights, copyrights (including rights in computer software )(whether or not registered and including applications for (and the right to apply for) registration of any such thing) and all rights and forms of protection of a similar nature or having equivalent or similar effect to any of these which may subsist anywhere in the world for the full period of them and all extensions or renewals of them;
(d) “Effective Date” means the date of this agreement;
(e) “Group Company” means the company or any other company which is for the time being its subsidiary or its holding company or a subsidiary of such holding company and the terms “subsidiary” and “holding company” have the meanings ascribed to them in section 736 of the Companies Act 1985;
(f) “Intellectual Property Rights” includes all and any suppliers, patents, trademarks and services marks, rights in designs, trade, business or domain names, database rights, topography rights, copyrights (including rights in computer software )(whether or not registered and including applications for (and the right to apply for) registration of any such thing) and all rights and forms of protection of a similar nature or having equivalent or similar effect to any of these which may subsist anywhere in the world for the full period of them and all extensions or renewals of them;
(g) “Working Day” means any day (other than a Sunday) on which the banks in London are open for business. Consultant is self employed and can choose hours of a working day from where ever premises however it is recommended that the Consultant during the first 3 months (Training) that he/she is in the offices of 2XL to gain as much knowledge as possible.
1.2 A reference in this agreement to the company includes any Group Company.
1.3 A reference in this agreement to a Clause, Sub-Clause or Schedule is a reference to a Clause, Sub-Clause or Schedule in this agreement.
1.4 A reference to a statutory provision includes references to any statutory modification, consolidation or re-enactment happening after the date of this agreement along with any statutory instruments or orders made under it.
1.5 The clause headings in this agreement are for ease of reference only and have no interpretative value.
1.6 Where appropriate words denoting a singular member only shall include the plural and vice versa.
1.7 The words “including” or “includes” are not used by way of limitation.
2.1 The Consultant shall provide his services to the Company on the terms of this agreement (the “Engagement”). The Engagement shall continue until terminated:
(a) As provided for elsewhere in this agreement: or
(b) By either party giving the other not less than four (4) weeks’ prior written notice. The notice period for any consultant working with the company less the three (3) months will be a one (1) weeks written notice period from either party.
2.2 The company will pay the consultant the commission during the applicable notice period. This shall apply unless both parties agree otherwise.
2.3 Upon termination of the Engagement, at the request of the Company, the consultant shall deliver up all documents (including correspondence, list of clients or customers, plans, drawings, accounts and other documents of whatsoever nature and all copies of them, whether on paper, computer memory, disc or otherwise made) made, compiled or acquired by him during the Engagement and concerning the business, finances or affairs of the Company or its clients together with any other property of the Company in the Consultant’s possession. The consultant will not contact any of the company’s suppliers or clients for a minimum of 12 months otherwise the consultant will be liable for maximum compensation.
3.1 The consultant performs the duties of internet sales and advertising in accordance with the terms of this agreement
3.2 The consultant shall:
(a) Faithfully and diligently perform his duties and use his best endeavours to promote and protect the interests of the company;
(b) Work at any of the Company’s places of work within the United Kingdom or such other places of business in the world as his position requires;
(c) Make such reports to the Board on any matters concerning the affairs of the Company as the Board may reasonably require and comply with all codes of practice of the Company applicable to internet sales and advertising and all rules and regulations (as from time to time) of all regulatory authorities relevant to the Company with which the Consultant is concerned;
(d) Obey all reasonable directions given to him by the Board.
(e) Submit invoices on the last working day of the calendar month for the payment of monthly commission which will be paid on the first Friday of the following calendar month
3.3 The consultant shall not be engaged or concerned in or become an employee, agent, partner, consultant or director of or assist or have any financial interest in any business or profession which is similar to or in competition with the business carried on by the company or which may interfere, conflict or compete with the proper performance of the Consultant’s duties.
3.4 The consultant shall work such reasonable hours during each Working Day as are necessary for the proper performance of his duties. The work will involve overtime, travel time and time abroad which it is agreed that commission compensate for.
3.5 The company may transfer the Engagement to any other Group Company.
4.1 Subject to receipt of a relevant invoice the Company shall pay the Consultant Commission. Commission shall be payable by cheque monthly in arrears on the first Friday of each calendar month.
4.2 The Board will award the consultant commission in accordance with the schedule.
4.3 The company may deduct from any sums owed to the consultants all sums which he from time to time owes the company.
The company shall provide the consultants with an allowance for all reasonable travel. Accommodation and other expenses properly authorised by the board and incurred in or about the performance of the consultants duties under the agreement, which expenses shall be evidenced in such manner as the board will reasonably require.
6.1 The consultant consents to the company holding, disclosing to third parties, or otherwise processing (in particular processing any “sensitive personal data” as defined in the Data Protection Act 1998) any data relating to him, including data relating to ethnic or racial origins, political opinions, religious beliefs or beliefs of a similar nature, trade union membership, heath and criminal records and to the transfer of all or any part of such data outside the European Economic Area.
6.2 Subject to their having compiled with the Data Protection Act 1998, the company may make any such data available to Group companies, professional advisers, those who provide products or services to the company, regulatory authorities, potential or future employers, governmental or quasi-governmental organisations.
7.1 Without prejudice to his common law duties, the consultant shall not (except in the proper course of his duties, as required by law or as authorised by the company)use or communicate to any person (and shall use his best endeavours to prevent the use or communication of) any Confidential Information relating to the company which he creates, develops, receives or obtains during the Engagement. This restriction shall continue to apply after the termination of the Engagement except to the extent that such information comes into the public domain other than as a result of a breach of this Clause 7.1.
7.2 During the Engagement the consultant shall not make (other than for the benefit of the Company) any record (whether on paper, computer memory, disk or otherwise) relating to any matter within the scope of the business of the company or their customers and suppliers or concerning its or their dealings or affairs or (either during the engagement or afterwards) use such records (or allow them to be used) other than for the benefit of the company.
8.1 The consultant shall promptly disclose to the company any idea, invention or work which is relevant to (or capable of use in) the business of the company made by him in the course of the Engagement (whether or not in the course of his duties). The consultant acknowledges that all intellectual property rights subsisting (or which may in the future subsist) in any such ideas, inventions or works will, on creation, vest in and be the exclusive property of the company and if they do not so he shall assign them to the company (upon its request and its cost). The consultant hereby irrevocably waives any moral rights which he may have in any such ideas, inventions or works under chapter IV or part 1 of the copyright, designs and patents Act 1988.
8.2 The consultant hereby irrevocably appoints the company to be his solicitor in his name and on his behalf to execute and do any such instrument or thing and generally to use his name for the purpose of giving to the company or its nominee the full benefit of this clause and acknowledges in favour of any third party that a certificate in writing signed by any director or secretary of the company that any instrument or act falls within the authority hereby conferred will be conclusive evidence that such is the case.
9.1 The company may terminate the engagement by the notice but with immediate effect if the consultant:
(a) is guilty of gross misconduct or commits any serious or (after written warning) repeated or continued material breach of his obligations to the company;
(b) becomes bankrupt or makes any arrangement or composition with or for the benefit of his creditors;
(c) is convicted of any criminal offence (other than an offence under any road traffic legislation in the United Kingdom or elsewhere for which a fine or non-custodial penalty is imposed) which involves dishonesty or which the Company reasonably considers is incompatible with the Engagement;
(d) becomes of unsound mind or a patient under any statue relating to mental health;
(e) fails in the reasonable opinion of the board (but only where such failure can be reasonably established) to perform his duties to a satisfactory standard;
(f) does anything which brings the company into serious disrepute
(g) acts in a way which is materially adverse to the interests of the company;
(h) is guilty of a serious breach of the rules and regulations as amended from time to time of any regulatory authority relevant to the business of the company or any compliance manual of the company implementing such rules and regulations; or
(i) is unable to perform his duties for a period of 20 working days in aggregate in any period of 12 months
9.2 Any reasonable delay by the company in exercising such right to terminate after the matter in question comes to the attention of the board will not constitute a waiver of it.
10.1 The consultant acknowledges that he has obtained and will obtain during the course of the engagement knowledge of the trade connections and secrets and other confidential information of the company and therefore the consultant agrees to be bound by the following restrictions:
(a) He shall not for a period of 18 months after the termination of the Engagement, whether on his own behalf or on behalf of any other person, firm or company, directly or indirectly solicit or canvass the custom or business of or deal with any person, firm or company who within a period of 12 months prior to the termination of the Engagement was a customer or client of the company having contact with the consultant in the course of the business in which the consultant will have been concerned during the said 12 month period; and
(b) He shall not for a period of 18 months after the termination of the Engagement, whether on his own behalf or on behalf of any other person, firm or company, directly or indirectly, employ or endeavour to entice away from the company any senior employee or consultant of the company employed at the date of termination and with whom the consultant has had regular dealings during the 12 months immediately preceding the termination of the engagement; and
(c) He shall not for a period of 18 months after the termination of the engagement interfere or seek to interfere with the continuance of supplies to the company or the terms of such supplies from any suppliers with whom he shall have dealt in the period of 18 months prior to the termination of his engagement.
10.2 The restrictions in each sub-clause above are enforceable independently of each other and their validity shall not be affected if any of the others are invalid. If any such restrictions are found to be void, but would be valid if some part of them were deleted or the period of application were reduced, such restrictions shall apply with such deletions or modifications as may be necessary to make them valid or effective.
10.3 The consultant acknowledges that the provisions of the clause (in respect of which he has had the opportunity to take independent advice) are no more extensive than is reasonable to protect the legitimate interests of the company.
10.4 The consultant shall (at the request and cost of the company) enter into a direct agreement with any group company under which he shall accept restrictions corresponding to the restrictions contained in this clause (or such as will be reasonably appropriate in the circumstances) in relation to such Group Company.
10.5 If the consultant at any time during the operative period of any of the restrictive covenants referred to in clause 10.1 (the “covenants”) considers that any of the covenants are unreasonable or unfair in all the circumstances he may request the board to relax them in such a way as to provide reasonable protection of the company’s legitimate business while, if possible, permitting the consultant to pursue his chosen business activity. If the board refuses to do so it must provide full written reasons to the consultant for doing so and shall, if requested, offer him an opportunity to discuss the Boards objection with a view to seeking agreement if possible. The consultant shall make full and frank disclosure to the board of his planned activities as a condition of it considering his request.
10.6 If the consultant is offered employment or a consultancy arrangement with a third party at any time during the engagement or in the 12 months following termination of this agreement (howsoever arising), he must supply that third party with a full copy of this clause.
11.1 The consultant warrants and represents to the company:
a) That he has the necessary skill and knowledge skill and knowledge to carry out his duties under this agreement; and
b) That he will not, in entering this agreement or carrying out his duties under this agreement be in breach of any terms of the engagement, whether express or implied or any other obligation blinding upon him;.
c) That he is an independent contractor.
11.2 Nothing in this agreement shall render the consultant an employee, agent or partner of the company and the consultant shall not hold himself out as such.
11.3 The parties hereto believe that the consultant is a schedule D taxpayer and class 2 and 4 national insurance contributions payer and is exempt from deduction at source of PAYE tax and class I national insurance liability by virtue of his status.
11.4 Save any tax and national insurance contributions deducted by the company, the consultant hereby undertakes to indemnify and hold the company harmless against all other taxes and national insurance contributions in respect of any payments and benefits provided or to be provided pursuant to this agreement, and all costs, claims, expenses or proceedings, penalties and interest incurred by the company which arise out of or in connection with any liability to pay (or deduct) tax or national insurance contributions in respect of any payments and benefits provided pursuant to this agreement (save for any costs, claims expenses or proceedings, penalties and interest incurred as a result of the company’s default).
11.5 The Consultant undertakes to the company that he will duly pay the tax and national insurance contributions which are due from him whether in the United Kingdom or elsewhere in relation to the payments to be made to him by the company pursuant to this agreement and further agrees to fully indemnify the company in respect of all and any income tax and national insurance contributions which may be found due from the company on any payments made to him under this agreement together with any interest, penalties or gross-up on it.
11.6 The consultant will take out and maintain professional indemnity insurance with a reputable insurance company providing a minimum cover of £1,000,000 and will supply the company with copies of current certificates of insurance for the duration of this agreement.
Any notice to be given under this agreement shall be in writing. Notices may be given by either party by personal delivery or post or by fax addressed to the other party at (in the case of the company) its registered office for the time being and (in the case of the consultant) his last known address. Any such notice given by letter or fax shall be deemed to have been served at the time at which the notice was delivered personally or successfully transmitted or (if sent by post) would be delivered in the ordinary course of post.
This agreement shall be governed by and construed in accordance with English Law and the parties submit to the exclusive jurisdiction of the courts of England.
This agreement contains the entire understanding between the parties and is in substitution for any previous agreement or arrangement between the parties and is in substitution for any previous agreement or arrangement between the parties, which are deemed to have been terminated by mutual consent as from the effective date.
No modification, variation or amendment to this agreement shall be effective unless such modification, variation or amendment is in writing and has been signed by or on behalf of both parties.
Neither party shall assign, transfer, sub-contract or in any other manner make over to any third party the benefit or burden of this agreement without prior written consent of the other.
Nothing in this agreement confers any third party rights which they would not have had but for the contracts (rights of third parties) Act 1999.