CONSULTING AGREEMENT CUSTOMER A2417-UK This CONSULTING AGREEMENT (the “Agreement”) is made as of the Effective Date listed on the
signature page of this Agreement, by and between Percona, Ltd. (“Consultant”) a Limited Liability company by Shares registered in United Kingdom at 95 Rock Avenue, Gillinham, Kent ME7 5PX, UK, and DMC Digital Ltd (“Company”), a Limited Liability Company, with a principal place of business at Studio 98, 95 Wilton Road, London, SW1V1BZ 1. Engagement of Services. Company may from time to time during the term of this Agreement request services from Consultant in the form of Exhibit A (“Project Assignment Form”) or similar Exhibits. Subject to the terms of this Agreement, Consultant will, to the best of its ability, perform the services in a timely and professional manner consistent with industry standards, and at a location, place and time that the Consultant deems appropriate. Consultant will choose one or more of its employees, agents, or subcontractors (“Agents”) to render the services as necessary. Company will make its facilities and equipment available to Consultant when necessary. 2. Term of the Agreement. The Term during which this Agreement is in force shall begin upon the Effective Date. The Agreement shall end upon the Termination Date as listed on the signature page of this Agreement, unless terminated earlier by either party under the terms of this Agreement. 3. Reports. Consultant shall submit reports of actual time spent performing services each week. Such reports shall itemize in reasonable detail dates, number of hours spent, and a brief description of services rendered as necessary. 4. Expenses. Company agrees to reimburse Consultant for expenses incurred while providing services: (a) travel expenses at reasonable and customary rates; (b) meal expenses, when associated with travel; (c) lodging expenses at reasonable and customary rates, when services demand overnight stays near work sites more than 50 miles from the home of the Agent; and (d) miscellaneous travel-related expenses such as parking fees and tolls. Consultant shall submit written documentation, including receipts when available, of all such expenses incurred. 5. Ownership of Work Product. Company and Consultant agree that unless otherwise agreed, all work products conceived, written, created or first reduced to practice in the performance of work under this Agreement by Consultant shall be the sole and exclusive property of Company, excluding any pre-existing works of Consultant on Effective Date. Exceptions may be named in duly executed exhibits attached to this Agreement. 6. Representations and Warranties. Each party represents and warrants that it (a) shall comply with all applicable laws while performing the Services; (b) shall obtain all necessary prior consents and authorizations; (c) shall take reasonable and customary precautions to prevent injury to any persons including employees of the other party, or damage to property including the other party’s property, during the term of this Agreement. Consultant represents and warrants that the Services will be performed, and the goods, materials, documentation, analysis, data, programs, and other matter contemplated in performing hereunder will be prepared and delivered, by qualified personnel in a timely manner in a professional and workmanlike manner and shall meet all written specifications. 7. Independent Contractor Relationship. Consultant’s relationship with Company will be that of an independent contractor and nothing in this Agreement should be construed to create a partnership, agency, joint venture, or employeremployee relationship between Company and Consultant or its Agent(s). Consultant is not the agent of Company or vice versa, and neither party is authorized to make any representation or commitment on behalf of the other. Neither party is or will be entitled to any of the benefits that the other party may make available to its employees, such as group insurance, profit sharing or retirement benefits. Each party agrees to accept exclusive liability for complying with all applicable state and federal laws governing self-employed individuals, including obligations such as payment of taxes, social security, disability and other contributions based on fees paid under this Agreement. 7.1 Non-Solicitation. Neither party shall, during the term of this Agreement and for two years after its termination, hire or solicit for hire any of the other party's personnel who have been involved with the services rendered under this Agreement, without the other party's express written consent. In the event of hiring without both parties' consent, the hiring party agrees to pay the other the greater of one half the annual salary of the hired employee or fifty thousand US dollars. 8. Confidential Information; Mutual Non-Disclosure. “Confidential Information” is all information disclosed by one party (the “Disclosing Party”) to the other party (the “Receiving Party”) in connection with the discussions between the parties. Confidential Information includes any and all technical and non-technical information, including without limitation, information concerning financial, accounting or marketing reports, business plans, analyses, forecasts, predictions,
projections, intellectual property, trade secrets and know-how. Confidential Information may take the form of documentation, drawings, specifications, software, technical or engineering data, and other forms, and may be communicated orally, in writing, by electronic or magnetic media, by visual observation or by other means.
8.1 Restrictions/Obligations. The Receiving Party shall: (a) only disclose the other party’s Confidential Information to employees with a need to know; (b) not disclose any Confidential Information to any third party without Disclosing Party’s prior written consent; (c) use such Confidential Information only to the extent required to accomplish the purpose discussed; (d) not reproduce Confidential Information in any form except as required to accomplish such purpose; (e) not directly or indirectly export or transmitany Confidential Information to any country to which such export or transmission is restricted by regulation or statute; and (f) promptly provide the Disclosing Party with notice of any actual or threatened breach of the terms of this Agreement. However,the Receiving Party may disclose Confidential Information in accordance with a judicial or other governmental order provided that such party shall give the Disclosing Party written notice prior to such disclosure. The provisions of this section shall survive and continue beyond the expiration or termination of the Agreement for a further period of three (3) years. 8.2 Exclusions. The foregoing restrictions on disclosure shall not apply to Confidential Information which: (a) is now or hereafter becomes generally known through no act or failure to act on the Receiving Party’s part; (b) the Receiving Party independently knows at the time of receiving such information, as evidenced by its written and dated records; (c) a third party hereafter furnishes to the Receiving Party without breaching this Agreement and without restriction on disclosure; (d) the Receiving Party can prove to have independently developed, as evidenced by contemporaneous written and dated records, without using the other party’s Confidential Information or breaching this Agreement; or (e) Disclosing Party gives written permission to the Receiving Party to disclose. The provisions of this section shall survive and continue beyond the expiration or termination of this Agreement. 8.3 Ownership. All Confidential Information (including copies thereof) shall remain the property of the Disclosing Party and shall be returned (or, at the Disclosing Party’s option, destroyed) within ten (10) business days upon written request or upon the Receiving Party’sneed for it has expired, and in any event, upon termination of this Agreement. No rights or licenses to trademarks, inventions, copyrights or patents are implied or granted under this Agreement. The provisions of this section shall survive and continue beyond the expiration or termination of this Agreement. 8.4 Equitable Remedies. The parties acknowledge that monetary damages may not be a sufficient remedy for unauthorized use or disclosure of Confidential Information and that each party may, without waiving any other rights or remedies, seek injunctive or equitable relief as may be deemed proper by a court of competent jurisdiction, without obligation to post any bond. 9. No Conflict of Interest. During the term of this Agreement, neither party will accept work, enter into a contract, or accept an obligation from any third party, inconsistent or incompatible with the obligations under this Agreement. Each party warrants that there is no other contract or duty on its part inconsistent with this Agreement. Consultant shall not be barred from contracting with Customer's competitors. 10. Termination; Survival. Either party may terminate this Agreement at any time upon fifteen (15) days’ prior written notice to the other. Upon termination under this Section Consultant shall be paid in full for all amounts due for services it has rendered under this contract prior to the effective date of termination. The rights and obligations contained in Sections 5 (“Ownership of Work Product”), 8 (“Confidential Information”), 11 (“Indemnification”), 13 (“Limitation of Liability”) will survive any termination or expiration of this Agreement. 11. Indemnification. Each party shall indemnify and hold harmless the other party, its subsidiaries and affiliates, their respective directors, officers, employees, sublicensees, customers, agents, attorneys, affiliates, successors, and assigns from any and all claims, losses, liabilities, damages, suits, actions, government procedures, taxes, penalties or interest, associated auditing and legal expenses and other costs incurred (including reasonable attorneys’ fees and costs of suit) arising from its own, its agents’, its subcontractors’ or its personnel’s: (a) violation of a third party’s rights by use of the Work for Hire or other work product of either party or any third party; (b) unauthorized use of the other party's or a third party’s trademarks or other intellectual property; (c) failure to pay withholding or other taxes resulting in determination by a government agency that Party's legal standing is not as represented in this Agreement; (d) damages or alleged damages due to any alleged security
breach; and (e) negligence or willful misconduct, errors or omissions resulting in bodily injury or property damages to Consultant or Company personnel or any third party. Each party further agrees not to bring any claim in any jurisdiction against the other for patent, copyright, trade secret or trademark infringement in connection with any Work for Hire. If such an infringement is found, the sole remedy available to the parties is to replace the Work for Hire with a non-infringing substitute or suitably modify the Work for Hire so that it is non-infringing. Notwithstanding the foregoing, Consultant assumes no liability for infringement claims arising from combination of Consultant’s work with products not provided by Consultant personnel, if such claim would not exist in the operation or use of Consultant’s work or in the Work for Hire itself; or modification of the Work for Hire, unless Consultant personnel made such modification. 12. Security Standards. Each party agrees to abide with the highest existing security standards pertaining to the type of work performed. If appropriate, each party will provide the other with an applicable Information Security requirements document. If not provided, each party agrees to consult with the other about all appropriate security measures. 13. Limitation of Liability. Except in the event of a breach of Confidential Information pursuant to section 11 (“Indemnification”), or section 12 (“Security Standards”), neither party will be liable for special, incidental or consequential damages or lost profits (however arising, including negligence) arising out of or in connection with this agreement. Except in the event of a breach of section 8 (“Confidential Information”) or section 12 (“Security Standards”) or a claim under section 11 (“Indemnification”), in no event will either party be liable to the other party in an amount greater than the amounts paid or payable by company hereunder. This limitation of each party’s liability is cumulative, with all payments for claims or damages in connection with this agreement being aggregated to determine satisfaction of the limit. The existence of one or more claims will not enlarge the limit. 14. Export. Neither party shall export, directly or indirectly, any U.S. source technical data acquired from the other party or any products utilizing such data to countries outside the United States, which export may be in violation of the United States export laws or regulations (such data and products are henceforth known as “Non-Exportable Items”). Company acknowledges that Consultant may employ Agent(s) from countries outside the United States, and agrees to be responsible for identifying and controlling access to Non-Exportable Items. Company also agrees to inform Consultant if access to Non-Exportable Items may be required to fulfill the obligations under this Agreement, and acknowledges that this may constrain the choice of Agent(s) or schedule. 15. General. 15.1Successors and Assigns. This Agreement may not be assigned by either party without the other party's consent, and any such attempted assignment shall be void and of no effect. Subject to the foregoing, this Agreement will be for the benefit of each party's successors and assigns, and will be binding on each party's assignees. 15.2Notices. Any notices, requests and other communications required or permitted by this Agreement shall be in writing in English and shall be delivered as follows with notice deemed given as indicated: (a) by personal delivery when delivered personally; (b) by overnight courier upon written verification of receipt; (c) by telecopy or facsimile transmission upon acknowledgment of receipt of electronic transmission; or (d) by certified or registered mail, return receipt requested, upon verification of receipt. Notice shall be sent to the addresses set forth above or such other address as either party may specify in writing by notice as provided by this section. 16.Governing Law. This Agreement shall be governed in all respects by the laws of the United Kingdom. Each party consents to the personal jurisdiction of the courts located in the United Kingdom for any lawsuit filed there by either party against the other arising from or related to this Agreement. 16.1Severability. In case any one or more of the provisions contained in this Agreement shall, for any reason, be held to be invalid, illegal or unenforceable in any respect, such invalidity, illegality or unenforceability shall not affect the other provisions of this Agreement, and this Agreement shall be construed as if such invalid, illegal or unenforceable provision had never been contained herein. If moreover, any one or more of the provisions contained in this Agreement shall for any reason be held to be excessively broad as to duration, geographical scope, activity or subject, it shall be construed by limiting and reducing it, so as to be enforceable to the extent compatible with the applicable law as it shall then appear. 16.2Waiver.The waiver by either party of a breach of any provision of this Agreement by the other shall not operate or be construed as a waiver of any other or subsequent or preceding breach. No waiver by either party of any right under this Agreement shall be construed as a waiver of any other right.
16.3Injunctive Relief for Breach. Each party's obligations under this Agreement are of a unique character that gives them particular value; breach of any of such obligations will result in irreparable and continuing damage to the other party, for which there will be no adequate remedy at law; and, in the event of such breach, the other party will be entitled to injunctive relief and/or a decree for specific performance, and such other and further relief as may be proper (including monetary damages if appropriate). 16.4Entire Agreement. This Agreement constitutes the entire agreement between the parties relating to this subject matter and supersedes all prior or contemporaneous oral or written agreements concerning such subject matter. The terms of this Agreement will govern all services undertaken by Consultant for Company; any terms contained in attachments or exhibits which are inconsistent with this Agreement are invalid. This Agreement may only be changed by mutual agreement of authorized representatives of the parties in writing. No modification of or amendment to this Agreement, nor any waiver of any rights under this Agreement, will be effective unless in writing and signed by the authorized representative of the party to be charged. 16.5Section Headings. The section titles in this Agreement are for the convenience of parties, in no way define, limit or describe the scope or intent of the Agreement, and have no legal effect. 17. Compensation. Company will pay Consultanta fee for services rendered under this Agreement as set forth in the Project Assignment Form(s). Consultant will be reimbursed for any reasonable expenses incurred in connection with the performance of services under this Agreement, subject to the limitations in the Project Assignment Form(s). 17.1Minimum Billable Unit. Billable time shall accrue in 15-minute intervals, aggregated per diem. If applicable, any urgent services billable at the Emergency Rate listed on the Project Assignment Form shall be billed at a minimum of 2 hours per incident. 17.2Invoicing and Payment. Company shall pay Consultant the amounts due, pursuant to submitted reports, upon receipt of the report. Acceptable payment methods include checks, wire payments, and if approved in advance by Consultant, other commonly accepted payment methods for similar transactions. Any payment not made when due shall accrue late payment fees in the amount of 1.5% per month or the highest amount allowable by law, whichever is lower. Late payment shall entitle Consultant to terminate any services immediately and to terminate this Contract for cause. Company agrees to pay any and all legal fees, collection fees or other expenses incurred by Consultant due to Company’s failure to pay any amounts due. 17.3Minimum Monthly Hours. If specified in a Project Assignment Form, Company agrees to pay Consultant each calendar month for the actual time spent providing services, or for the Minimum Monthly Hours, as listed in the Project Assignment Form, whichever is greater. When a calendar month is partially within the Term of this Agreement, the Minimum Monthly Hours for that month shall be pro-rated by the number of days of that month included in the Term of the Agreement.
Consulting Agreement CONSULTING AGREEMENT CUSTOMER A2417-UK
IN WITNESS WHEREOF, the Parties have executed this Agreement. Terms and Conditions of the Agreement, as referenced above: Effective Date: Termination Date: CONSULTANT: PERCONA, LTD. By: Name: Title: Date: Mark Sexton Senior Account Manager 8 January 2009 8 January 2010 COMPANY: DMC DIGITAL LTD By: Name: Title: Date: Andrew Bredon Chief Technical Officer 27/01/09
Consulting Agreement EXHIBIT A: PROJECT ASSIGNMENT FORM A2417-UK
1.Overview. [Performance Audit – including OS, Hardware, MySQL, settings & schema, Tomcat, Apache Config, Mod_jk
2.Compensation.(a) Actual time Consultant spends working to provide services above shall be billed at a Standard Rate as
listed below. (b) If travel is required, actual time Consultant spends in transit by plane, train, bus, taxi or other accepted methods of transit, excluding time spent at hotels or other lodging, shall be billed at a Travel Rate as listed below. (c) Actual time Company desires Consultant to work on an on-call basis, to be available on short notice if desired, shall be billed at an On-Call Rate as listed below. Any services rendered during this time shall be billed at the Standard Rate set forth above. Time billed at Standard Rate and On-Call Rate are mutually exclusive; the On-Call Rate is billable only for the time the Consultant is on-call but not actually rendering services. (d) If Company requires immediate, unscheduled services on short notice, actual time Consultant spends providing services shall be billed at an Emergency Rate as listed below. (e) Company agrees that requesting a specific Agent may cause scheduling conflicts and other material inconvenience to Consultant and/or Consultant's other clients. If the Company requests the right to specify an Agent, Consultant shall determine whether such Agent is available at Consultant’s sole discretion. Should Consultant determine that such Agent is available and honors Company’s request Consultant reserves the right to bill at a Premium Rate as listed below. Consultant shall advise Company when such a request will cause this Premium Rate to take effect. Standard Rate: On-Call Rate: Premium Rate: $300/ hour $50/ hour $450 Travel Rate: Emergency Rate: Minimum Monthly Hours: $50/hr $450/hr N/A
Billing Address ___Unit G01 20-28 Hatton Wall, London, EC1N8JH_________________________________ Contact Person with phone number & email address: Andrew Bredon +447811329333, Andrew.firstname.lastname@example.org_ VAT #: 863849084 IN WITNESS WHEREOF, the Parties have executed this Agreement: CONSULTANT: PERCONA, LTD. By: Name: Title: Date: Mark Sexton Senior Account Manager COMPANY: _DMC DIGITAL LTD By: Name: Andrew Bredon Title: Date: Chief Technical Officer 27/01/2009