EX-10.3
CONSULTING AGREEMENT
CONSULTING AGREEMENT
THIS AGREEMENT is made as of July 3, 2006 between:
Andain Inc., a Nevada corporation, having its principal executive
office at ▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇▇▇▇ (hereinafter referred
to as the "Andain"); and Pangea Investments GmbH a Swiss corporation,
having its principal executive office at ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇-▇▇▇▇
▇▇▇▇▇▇▇▇▇ / ▇▇ (hereinafter referred to as "Pangea").
In the event of a conflict in the provisions of any attachments
hereto and the provisions set forth in this Agreement, the provisions
of such attachments shall govern.
1. Services.
Pangea agrees to perform for Andain the services described in the
Scope of Services section in Exhibit A, attached hereto and
incorporated herein by reference, and executed by both Andain and
Pangea. Such services are hereinafter referred to as "Services."
Andain agrees that Pangea shall have ready access to Andain's staff
and resources as necessary to perform the Pangea's services provided
for by this contract.
2. Rate of Payment for Services.
Andain agrees to pay Pangea for Services in accordance with the
schedule contained in Exhibit B attached hereto and incorporated
herein by reference, and executed by both Andain and Pangea.
3. Expenses.
Pangea shall receive monthly payment, as described in Exhibit B, for
office and incidental expenses incurred by Pangea in connection with
providing the Services hereunder, including, but not limited to local
transportation, telecommunications, Internet connectivity, and office
supplies. In addition, Pangea shall be reimbursed for one-time out of
pocket expenses, including, but not limited to travel costs, office
equipment, hardware and software expenditures, actually and properly
incurred by Pangea in connection with providing the Services
hereunder, except that such one-time expenses must be approved in
advance by Andain. Pangea shall furnish statements and invoices for
all such one-time out of pocket expenses.
4. Invoicing.
Andain shall pay the amounts agreed to herein upon receipt of
invoices for services and/or monthly office and incidental expenses,
according to the schedule in Exhibit B, or invoices for one-time out
of pocket expenses, the latter accompanied by expense reports and/or
receipts, which shall be sent by Pangea, and Andain shall pay the
amount of such invoices to Pangea. Pangea may send invoices to Andain
by post, facsimile, or by other electronic means. It is agreed that
invoices are immediately due and payable upon receipt, to the order
and in the manner indicated by Pangea.
5. Confidential Information.
Each party hereto ("Such Party") shall hold in trust for the other
party hereto ("Such Other Party"), and shall not disclose to any non-
party to the Agreement, any confidential information of such Other
Party. Confidential information is information which relates to Such
Other Party's research, development, trade secrets or business
affairs, but does not include information which is generally known or
easily ascertainable by non-parties of ordinary skill in computer
systems design and programming.
Pangea hereby acknowledges that during the performance of this
contract, Pangea may learn or receive confidential Andain information
and therefore Pangea hereby confirms that all such information
relating to Andain's business will be kept confidential by Pangea,
except to the extent that such information is required to be divulged
to Pangea's staff or associates in order to enable Pangea to perform
Pangea's contract obligation.
6. Staff.
Andain is hereby contracting with Pangea for the Services described
on Exhibit A and Pangea reserves the right to determine the method,
manner and mean by which the services will be performed as long
Pangea provides a satisfactory Service to Andain. Pangea is not
required to perform the services during a fixed hourly or daily time
and should any of the services be performed at the Andain's premises,
then Pangea's time spent at the premises is to be at the discretion
of the Pangea; subject to the Andain's normal business hours and
security requirements. Pangea hereby confirms to Andain that Andain
will not be required to furnish or provide any training to Pangea to
enable Pangea to perform services required hereunder. The services
shall be performed by Pangea or Pangea's staff, and Andain shall not
be required to hire, supervise or pay any assistants to help Pangea
who performs the services under this agreement. Pangea shall take
appropriate measures to insure that Pangea's staff is competent and
that they do not breach Section 5 hereof. The order or sequence in
which the work is to be performed shall be under the control of
Pangea. The Pangea will devote the appropriate amount of his time,
and commit the appropriate amount of his staff's time, that is
necessary in order to perform the services required hereunder. It is
agreed and acknowledged that Pangea may provide services to other
entities, provided that Pangea shall at no time while this Agreement
remains in force provide ongoing consulting services to any
competitor other than an affiliate of Andain.
Each of the parties hereto agrees that, while performing Services
under this Agreement, and for a period of Six (6) months following
the termination of this Agreement, neither party will, except with
the other party's written approval, solicit or offer employment to
the other party's employees or staff engaged in any efforts under
this Agreement.
7. Taxes.
Any and all taxes, except income taxes, imposed or assessed by reason
of this contract or its performance, including but not limited to
sales or use taxes, shall be paid by Andain.
8. Use of Work Product.
Except as specifically set forth in writing and signed by Andain and
Pangea, Andain shall have all copyright and patent rights with
respect to all materials developed under this contract, and exclusive
rights to use and employ such materials within Andain's business or
otherwise.
9. Additional Conditions.
The parties shall sign such further documents, cause such meetings to
be held, resolutions passed and by-laws enacted, exercise their vote
and influence, do and perform and cause to be done and performed such
further and other acts and things as may be necessary or desirable in
order to give full effect to this Agreement and every part thereof.
10. Representatives.
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇ shall represent Pangea and ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
will represent Andain, during the performance of this contract with
respect to the services and deliverables as defined herein and has
authority to execute written modifications or additions to this
contract as defined in Section 17.
11. Limited Warranty; Liability.
Pangea warrants to Andain that the material, analysis and services to
be delivered or rendered hereunder, will be of the kind and quality
designated and will be performed by qualified personnel. Pangea makes
no other warranties, whether written, oral or implied, including
without limitation, warranty of fitness for purpose or
merchantability. In no event shall Pangea be liable for special or
consequential damages, either in contract or tort, whether or not the
possibility of such damages has been disclosed to Pangea in advance
or could have been reasonably foreseen by Pangea, and in the event
this limitation of damages is held unenforceable then the parties
agree that by reason of the difficulty in foreseeing possible damages
all liability to Andain shall be limited to One Hundred Dollars
($100.00) as liquidated damages and not as a penalty. Andain agrees
to indemnify Pangea for any and all liabilities or loss to third
parties arising in any way out of the performance of the Services
rendered hereunder.
12. Indemnification.
Andain agrees to indemnify Pangea in accordance with Exhibit C
attached.
13. Complete Agreement.
This agreement contains the entire agreement between the parties
hereto with respect to the matters covered herein. No other
agreements, representations, warranties or other matters, oral or
written, purportedly agreed to or represented by or on behalf of
Pangea by any of its employees or agents, or contained in any sales
materials or brochures, shall be deemed to bind the parties hereto
with respect to the subject matter hereof. Andain acknowledges that
it is entering into this Agreement solely on the basis of the
representations contained herein.
14. Scope of Agreement.
If the scope of any of the provisions of the Agreement is too broad
in any respect whatsoever to permit enforcement to its full extent,
then such provisions shall be enforced to the maximum extent
permitted by law, and the parties hereto consent and agree that such
scope may be judicially modified accordingly and that the whole of
such provisions of this Agreement shall not thereby fail, but that
the scope of such provisions shall be curtailed only to the extent
necessary to conform to law.
15. Severability.
If any Section or any portion of any Section of this Agreement is
determined to be unenforceable or invalid for any reason whatsoever,
that unenforceability or invalidity shall not affect the
enforceability or validity of the remainder of this Agreement, and
such unenforceable or invalid Section or portion thereof shall be
severed from the remainder of this Agreement.
16. Applicable Law.
Pangea shall comply with all applicable laws in performing Services
but shall be held harmless for violation of any governmental
procurement regulation to which it may be subject but to which
reference is not made in Exhibit A. This Agreement shall be construed
in accordance with the laws of the Country, state or province
indicated by Pangea's address.
17. Disputes.
Any disputes that arise between the parties with respect to the
performance of this contract shall be submitted to binding
arbitration, and the parties hereby agree to share equally in the
costs of said arbitration.
The final arbitration decision shall be enforceable through the
courts of the Country, state or province of Pangea's address. In the
event that this arbitration provision is held unenforceable by any
court of competent jurisdiction, then this contract shall be as
binding and enforceable as if this section 8 were not a part hereof.
18. Additional Work.
After receipt of an order which adds to the Services, Pangea may, at
its discretion, take reasonable action and expend reasonable amounts
of time and money based on such order. Andain agrees to pay Pangea
for such action and expenditure at such rate as shall then be
mutually agreed upon by Andain and Pangea.
19. Duration.
The contract will remain in force for a term of four years from the
date first written above. Either party may terminate this Agreement
with 90 days written notice; otherwise In lieu of such written
notice, Andain may terminate this Agreement by paying Pangea a fee
equivalent to three full months based on the average of the last
three monthly totals of services as defined in Exhibit B or any
substitute which has fully replaced Exhibit B, and 1,000,000 freely
traded unrestricted shares of Andain for each year of services
commencing August 1, 2004, provided up to a maximum of 3,000,000 shares.
20. Assignment.
This Agreement may not be assigned by either party without the prior
written consent of the other party. Except for the prohibition on
assignment contained in the preceding sentence, this Agreement shall
be binding upon and inure to the benefits of the heirs, successors
and assigns of the parties hereto.
21. Transmission by Facsimile.
The parties agree that this Agreement may be transmitted by facsimile
or by other electronic means and that the reproduction of signatures
by facsimile or other electronic means will be treated as binding as
if originals, and each party undertakes to provide each and every
other party hereto with a copy of the Agreement bearing original
signatures forthwith upon demand.
22. Notices.
(i). Notices to Andain should be sent to:
▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇
(ii). Notices to Pangea should be sent to:
▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇-▇▇▇▇ ▇▇,▇▇▇▇▇▇ / ▇▇, ▇▇▇▇▇▇▇▇▇▇▇
IN WITNESS WHEREOF, the parties hereto have signed this Agreement
as of the date first written above.
ANDAIN INC.
By: /s/ ▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, President
PANGEA INVESTMENTS GMBH
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, President
Exhibit A
Scope of Services
The Services to be rendered by Pangea to Andain include all
services generally performed by Pangea in the areas of company
foundation, and equity growth, which may include, but are not limited to:
- Formation of Andain.
- Registration as public reporting company
- Operating directors.
ANDAIN INC.
By: /s/ ▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, President
PANGEA INVESTMENTS GMBH
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, President
Exhibit B
Schedule of Payment
In consideration for the Services rendered, as described in
Exhibit A, and the extent of the those Services, as mutually agreed
upon by Andain and Pangea, Andain shall pay to Pangea 100% of all
payments described in this Schedule by the 5th of each month, monthly
in arrears:
For the period from 2,000,000 Andain common stock shares
August 1, 2004 to US $5,000
December 31, 2005
Monthly Management Fee per person
Expenses as defined in Section 3 Full Reimbursement
Quarterly Bonus - to be delivered 50,000 unrestricted shares per
on the first business day of each person.
quarter, quarterly in arrears
ANDAIN INC.
By: /s/ ▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, President
PANGEA INVESTMENTS GMBH
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, President
Exhibit C
Andain Inc. (the "Indemnitor") hereby agrees to indemnify and hold
Pangea Investments GmbH and/or any of its affiliates (hereinafter
referred to as the "Pangea") and each of the directors, officers,
employees and partners of Pangea (hereinafter referred to as the
"Personnel") harmless from and against any and all expenses, losses
(other than loss of profits), claims, actions, damages or
liabilities, whether joint or several (including the aggregate amount
paid in reasonable settlement of any actions, suits, proceedings or
claims), and the reasonable fees and expenses of their counsel that
may be incurred in advising with respect to and/or defending any
claim that may be made against Pangea and/or the Personnel, to which
Pangea and/or the Personnel may become subject or otherwise involved
in any capacity under any statute or common law or otherwise insofar
as such expenses, losses, claims, damages, liabilities or actions
arise out of or are based, directly or indirectly, upon: (i) any
error, omission or misrepresentation contained in any information
provided by or on behalf of the Company; or (ii) any representation
or warranty given by the Company in the subscription agreement (the
"Subscription Agreement") to be executed and delivered by a
subscriber in connection with the Financing being false or incorrect;
or (iii) any breach of covenant or obligation of the Company;
provided, however, that this indemnity shall not apply to the extent
that a court of competent jurisdiction in a final judgment that has
become non-appealable shall determine that:
(1) Pangea or the Personnel have been negligent or dishonest or have
committed any fraudulent act in the course of such performance; or
(2) Pangea has breached any material provision of this agreement;
and
(3) the expenses, losses, claims, damages or liabilities, as to
which indemnification is claimed, were directly caused by the
negligence, dishonesty or fraud referred to in (1) or the breach of
any material provision of this Letter Agreement referred to in (2).
If for any reason (other than the occurrence of any of the events
itemized in (1) to (3) above), the foregoing indemnification is
unavailable to Pangea or insufficient to hold it harmless, then the
Indemnitor shall contribute to the amount paid or payable by Pangea
as a result of such expense, loss, claim, damage or liability in such
proportion as is appropriate to reflect not only the relative
benefits received by the Indemnitor on the one hand and Pangea on the
other hand but also the relative fault of the Indemnitor and Pangea,
as well as any relevant equitable considerations; provided that the
Indemnitor shall in any event contribute to the amount paid or
payable by Pangea as a result of such expense, loss, claim, damage or
liability any excess of such amount over the amount of the fees
received by Pangea hereunder pursuant to the agreement to which this
is attached.
The Indemnitor agrees that in case any legal proceeding shall be
brought against the Indemnitor and/or Pangea and/or the Personnel or
any governmental commission or regulatory authority or any stock
exchange or other entity having regulatory authority, either domestic
or foreign, shall investigate the Indemnitor and/or Pangea and/or any
Personnel or if any Personnel shall be required to testify in
connection therewith or shall be required to respond to procedures
designed to discover information regarding, in connection with, or by
reason of the performance of professional services rendered to the
Indemnitor by Pangea, Pangea shall have the right to employ its own
counsel in connection therewith, and the reasonable fees and
expenses of such counsel as well as the reasonable costs (including
an amount to reimburse Pangea for time spent by the Personnel in
connection therewith) and out of pocket expenses incurred by Pangea
or the Personnel in connection therewith shall be paid by the
Indemnitor as they occur. Promptly after receipt of notice of the
commencement of any legal proceeding against Pangea or any of the
Personnel or after receipt of notice of the commencement of any
investigation, which is based, directly or indirectly, upon any
matter in respect of which indemnification may be sought from the
Indemnitor, Pangea will notify the Indemnitor in writing of the
commencement thereof and, throughout the course thereof, will provide
copies of all relevant documentation to the Indemnitor, will keep the
Indemnitor advised of the progress thereof and will discuss with the
Indemnitor all significant actions proposed.
The indemnity and contribution obligations of the Indemnitor shall be
in addition to any liability which the Indemnitor may otherwise have,
shall extend upon the same terms and conditions to the Personnel and
shall be binding upon and enure to the benefit of any successors,
assigns, heirs and personal representatives of the Indemnitor, Pangea
and any of the Personnel. The parties agree that Pangea holds all
rights of the Personnel in trust for the Personnel. The foregoing
provisions shall survive the completion of professional services
rendered under the agreement to which this is attached or any
termination of the authorization given by the agreement to which this
is attached.