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A balanced DIFC-law agreement for a startup or board advisor engaged by a DIFC company as an independent contractor and paid in equity, a fee or both: services and time commitment, an optional share, option or equivalent award under the DIFC Companies Law with monthly vesting, cliff and optional acceleration, confidentiality, IP in work product, data protection under the DIFC Data Protection Law, liability and DIFC Courts.
Dubai International Financial Centre (DIFC)
Highlighted blanks are the details your parties fill in.
This agreement is dated the date on which it is signed by the last of the parties.
This agreement is made between [TO BE CONFIRMED — Company] (the "Company") and [TO BE CONFIRMED — Advisor] (the "Advisor").
"Services" means [TO BE CONFIRMED — Advisory services].
"Time Commitment" means up to 5 hours a month, at times agreed between the parties.
"Start Date" means [TO BE CONFIRMED — Start Date]
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"Engagement Term" means 24 months.
"Fee" means [TO BE CONFIRMED — Fee].
"Payment Schedule" means [TO BE CONFIRMED — Payment Schedule].
"Payment Period" means 30 days after receipt of a valid invoice.
"Fee Tax Basis" means exclusive of VAT and other similar indirect taxes.
"Liability Cap" means the greater of USD 10,000 and the total fees paid or payable to the Advisor under this agreement in the 12 months before the event giving rise to liability.
Where a party is an individual, "it", "its" and "itself" refer to that individual; a reference to a party's officers, board, constitutional documents or being duly incorporated or organised applies only to a party that is a body corporate or other entity; and a reference to a party becoming insolvent includes, for an individual, being made bankrupt or becoming subject to any equivalent procedure in any jurisdiction.
The Company appoints the Advisor to provide the Services during the Engagement Term, and the Advisor accepts that appointment.
The Advisor must perform the Services with reasonable skill, care and diligence, comply with applicable law, and promptly keep the Company informed of any matter that is likely materially to affect the Services.
The Advisor must make itself reasonably available to provide the Services for the Time Commitment. The Advisor decides how, when and where it provides the Services, subject to reasonable coordination with the Company. Any work beyond the Time Commitment requires the parties' prior written agreement.
The Services do not include introducing or soliciting investors, negotiating or arranging any issue or sale of the Company's securities, promoting a market in them, or any other activity that requires a licence, authorisation or registration the Advisor does not hold. The Advisor must not carry on any of those activities for the Company unless the parties first agree separate written terms.
The Company must provide information, decisions and access reasonably needed for the Advisor to perform the Services. The Advisor may rely on information supplied by or for the Company unless the Advisor knows it is materially inaccurate or incomplete.
This agreement begins on the Start Date and continues for the Engagement Term, unless terminated earlier under the Termination clause. The parties may extend the Engagement Term only by a written agreement.
In consideration of the Services, the Company must pay the Fee in accordance with the Payment Schedule. The Advisor must submit a valid invoice containing reasonable supporting detail. The Company must pay each undisputed invoiced amount within the Payment Period.
If the Company disputes an invoice in good faith, it must notify the Advisor before the end of the Payment Period, stating the disputed amount and reasons. The Company must pay the undisputed amount when due, and the parties must promptly seek to resolve the dispute.
The Company must reimburse the Advisor for reasonable out-of-pocket expenses properly incurred in performing the Services, but only where the Company approved them in writing in advance and the Advisor provides reasonable evidence of the expense.
The Fee is stated on the Fee Tax Basis. The Company must pay any applicable VAT or similar indirect tax properly chargeable on the Fee, subject to receipt of a valid tax invoice. The Advisor is responsible for taxes imposed on the Advisor's income, profits, personnel or business.
Subject to the approvals required by the Company's articles of association and the DIFC Companies Law (DIFC Law No. 5 of 2018), the Company must grant the Advisor an award equal to [TO BE CONFIRMED — Advisor equity (number or percentage of shares, and basis)] (the "Advisor Equity") under the Company's share incentive scheme or, where the articles or applicable law do not permit the Advisor to hold shares directly, a phantom award giving an equivalent economic interest. The Company must seek those approvals within 30 days after the date of this agreement, and the award documents must reflect the vesting terms of the Equity Compensation clause. The award documents govern all other terms, including price, exercise, settlement, leaver treatment and transfer, and prevail over this clause if they conflict. No right to the Advisor Equity arises until the award is approved and the award documents are signed. The Advisor is responsible for any tax arising to it on the Advisor Equity.
The Advisor Equity vests in equal monthly instalments over 24 months starting on the Start Date (the "Vesting Start Date"). Each instalment vests on the same day of each following month or, if a month has no such day, on its last day. No Advisor Equity vests until 3 months after the Vesting Start Date, when every instalment that would otherwise have vested by then vests together. Instalments are rounded down to whole shares, with any remainder vesting in the final instalment. Vesting stops on the date the Advisor's engagement under this agreement ends for any reason, and no Advisor Equity vests after that date except under the acceleration terms of this agreement, if any.
If, within 12 months after a Change of Control, the Company or its successor ends the Advisor's engagement under this agreement other than for the Advisor's material breach, all unvested Advisor Equity vests in full immediately before that engagement ends. "Change of Control" means a transfer of shares or other transaction after which the persons who held the Company's shares immediately before it hold less than 50% of its shares or voting rights, or a sale of all or substantially all of the Company's business and assets, but not an internal reorganisation or a transaction made principally to raise finance. The Company must ensure the award documents reflect this clause.
The Advisor acts as an independent contractor. Nothing in this agreement creates employment, worker status, a partnership, joint venture, fiduciary relationship or agency between the parties.
The Advisor has no authority to bind the Company, make representations on the Company's behalf, incur obligations for the Company or hold itself out as having that authority, unless the Company gives prior written authority for a specific act.
The Advisor confirms that entering into and performing this agreement does not breach any obligation it owes to another person. The Advisor must promptly disclose any actual or reasonably foreseeable conflict of interest in relation to the Services, including advising a competitor of the Company. The Advisor may provide services to others, provided this does not create an unmanageable conflict, misuse the Company's Confidential Information or materially impair performance of the Services.
During the term of this agreement, the Company may name the Advisor as an advisor to the Company, and use the Advisor's name, title and a biography the Advisor has approved, on its website and in its investor, recruitment and marketing materials. The Advisor may withdraw this permission for future materials by written notice. When this agreement ends, the Company must stop presenting the Advisor as a current advisor within a reasonable time.
"Confidential Information" means information disclosed by or for one party to the other in connection with this agreement that is confidential by nature or identified as confidential, including business, financial, technical, commercial and client information. It does not include information that the receiving party can demonstrate was lawfully known to it without restriction before disclosure, becomes public other than through breach of this agreement, is lawfully received from a third party without a duty of confidence, or is independently developed without use of the disclosing party's information.
Each party must keep the other party's Confidential Information confidential and use it only to perform or receive the Services. A party may disclose Confidential Information to its personnel and professional advisers who need to know it and are bound by confidentiality obligations no less protective than this clause, or where disclosure is required by law, regulation or a court of competent jurisdiction. Where legally permitted, it must give prior notice to the other party of compelled disclosure.
On written request or termination, each party must promptly return or securely delete the other party's Confidential Information, except for copies retained under automatic backup procedures or to comply with law, professional obligations or internal record-retention policies. Any retained information remains subject to the Confidentiality clause.
The Advisor assigns to the Company, with full title guarantee and with effect from creation, all intellectual property rights in materials created specifically for the Company in performing the Services ("Work Product"). To the extent any assignment is ineffective, the Advisor grants the Company an exclusive, perpetual, worldwide, royalty-free, transferable and sublicensable licence to use, reproduce, adapt and exploit that Work Product. The Advisor must execute documents reasonably required to give effect to this clause.
Each party retains ownership of its materials, methods, know-how, software and other intellectual property developed or owned independently of this agreement (Background Materials). To the extent the Advisor's Background Materials are incorporated in the Work Product, the Advisor grants the Company a perpetual, worldwide, royalty-free, non-exclusive licence to use those Background Materials solely as necessary to use the Work Product.
To the extent permitted by applicable law, the Advisor waives and must procure that its personnel waive any moral rights in the Work Product. Where a waiver is not effective, the Advisor consents to acts or omissions by the Company and its licensees that would otherwise infringe those rights.
Each party must comply with applicable data protection law, including the DIFC Data Protection Law (DIFC Law No. 5 of 2020) where it applies, in connection with personal data processed under this agreement. Where the Advisor processes personal data for the Company, the Advisor must process it only on the Company's documented instructions, implement appropriate technical and organisational security measures, ensure authorised personnel are bound by confidentiality, promptly notify the Company of a personal data breach, and not appoint a subprocessor or transfer personal data outside the DIFC without the Company's prior written authorisation. The parties must enter into any further data processing terms required by applicable law.
Either party may terminate this agreement for convenience by giving the other party written notice of at least 30 days.
Either party may terminate this agreement immediately by written notice if the other party commits a material breach that is capable of remedy and fails to remedy it within 14 days after written notice requiring remedy, commits a material breach that is not capable of remedy, becomes insolvent, ceases or threatens to cease carrying on business, or is unable to pay its debts as they fall due. If the Advisor is an individual, this agreement ends automatically on the Advisor's death, and the Company may terminate it immediately by written notice if the Advisor is unable through illness, injury or incapacity to provide the Services for more than 60 consecutive days.
On termination, the Advisor must stop providing the Services unless the Company requests a reasonable transition period, deliver all completed and substantially completed Work Product, and submit any final invoice. The Company must pay any undisputed fees and approved expenses properly accrued up to termination. Vesting of any Advisor Equity stops as the Equity Compensation clause provides. Termination does not affect accrued rights. The Interpretation, Confidentiality, Intellectual Property, Warranties, Liability, Notices, General and Governing Law and Jurisdiction clauses continue after termination, as do the Company's obligation to pay fees and expenses accrued up to termination and, where this agreement includes them, the Equity Compensation clause as it applies to equity that vested before termination, the Indemnities clause and the Data Protection clause as it applies to personal data the Advisor still holds, together with any other provision intended to continue.
Each party warrants that it has authority to enter into and perform this agreement. The Advisor warrants that it will provide the Services in accordance with the Appointment and Services clause and that, to its knowledge, the Work Product will not infringe a third party's intellectual property rights. Except as expressly stated in this agreement, all warranties, conditions and other terms implied by law are excluded to the fullest extent permitted by law.
The Advisor must indemnify the Company against losses, liabilities, damages, costs and expenses finally awarded by a court or agreed in settlement arising from a third-party claim that the Company's authorised use of the Work Product infringes that third party's intellectual property rights, except to the extent the claim arises from Company materials, Company instructions, modification not made by the Advisor, or use outside the scope permitted by this agreement. The Company must promptly notify the Advisor of the claim, allow the Advisor sole control of its defence and settlement, and provide reasonable assistance at the Advisor's cost.
Neither party's aggregate liability arising out of or in connection with this agreement, whether in contract, tort (including negligence), misrepresentation, restitution or otherwise, may exceed the Liability Cap, except liability for breach of the Confidentiality clause and the Company's obligation to pay any fees and expenses properly due.
Neither party is liable for indirect or consequential loss, or for loss of profit, revenue, business, goodwill, anticipated savings or data, whether direct or indirect. Nothing in this agreement limits or excludes liability that cannot lawfully be limited or excluded, including liability for fraud or fraudulent misrepresentation.
A notice under this agreement must be in writing and delivered by hand, reputable courier or email to the recipient's notice details most recently notified in writing. The Company's notice address is [TO BE CONFIRMED — Company notice address]. The Advisor's notice address is [TO BE CONFIRMED — Advisor notice address]. A notice is deemed received when delivered by hand, on recorded delivery by courier, or when sent by email without a delivery-failure message, provided that an email sent after 5.00 pm at the recipient's location is deemed received at 9.00 am on the next business day there.
Neither party is liable for delay or failure to perform an obligation, other than payment of money, to the extent caused by an event beyond its reasonable control. The affected party must promptly notify the other party and use reasonable efforts to mitigate the effect. If the event continues for more than 30 days, either party may terminate this agreement by written notice.
Neither party may assign, transfer, subcontract or otherwise deal with its rights or obligations under this agreement without the other party's prior written consent, except that the Company may assign this agreement to an affiliate or in connection with a merger, reorganisation or transfer of all or substantially all of its business or assets. The Advisor remains responsible for any permitted subcontractor.
This agreement is the entire agreement between the parties about its subject matter and replaces prior discussions, correspondence and arrangements about that subject matter. Each party acknowledges that it has not relied on a statement or representation not expressly set out in this agreement, except that nothing limits liability for fraud or fraudulent misrepresentation.
A variation of this agreement is effective only if it is in writing and signed by authorised representatives of both parties. A delay or failure to exercise a right is not a waiver of that right, and a partial exercise of a right does not prevent further exercise of that or another right.
A person who is not a party to this agreement has no right to enforce any term of this agreement.
If a provision of this agreement is or becomes illegal, invalid or unenforceable, it is deemed modified to the minimum extent necessary to make it legal, valid and enforceable. If that modification is not possible, it is deemed deleted. This does not affect the remaining provisions.
This agreement may be executed in counterparts, each of which is an original and all of which together form one instrument. Electronic signatures and exchange of electronic copies are effective to the extent permitted by applicable law.
This agreement and any non-contractual obligations arising out of or in connection with it are governed by the laws of the DIFC.
The courts of the DIFC have exclusive jurisdiction to settle any dispute arising out of or in connection with this agreement, including a dispute relating to its existence, validity or termination.