Exhibit 10.8


 


SUGAR INTERNATIONAL LIMITED


 


SERVICE AGREEMENT


 


DATED         May 29th, 2008


 


PARTIES:


 


1.                            SUGAR INTERNATIONAL LIMITED (“Sugar”) Level 3, Falcon Street, Po
Box 137115, Parnell, Auckland 1052 New Zealand


 


2.      DILIGENT BOARD MEMBER SERVICES, INC (“Diligent”) 39 West 37th Street, 8th Floor, New
York, New York 10018, USA


 


BACKGROUND:


 


A.                         Diligent is a provider of web based service for online
board meetings with an online board book.


 


B                              Sugar is a provider of training, management and other
services.


 


C                              The parties have agreed to terms whereby Sugar is to
provide certain services to Diligent.


 


OPERATIVE PART:


 


1.                            Definitions and interpretations


 


Agreement means this agreement as may be amended from time to
time in writing between the parties.


 


Commencement Date means the first day of June 2008.


 


Diligent’s IP means the intellectual property rights, including
without limitation patents, designs, trademarks (registered or unregistered),
copyright or otherwise owned or controlled by Diligent.


 


Confidential Information means
information, in any format:


 


that is by its nature
confidential or that any party knows or ought to know is confidential or that
is designated by any party as confidential under this agreement,


 


including, in the case of Diligent:


 





















 


(i)                                     the personnel, policies or business
strategies of Diligent;


 


(ii)                                  information relating to Diligent, Diligent’s
business, Diligent’s operational system, any manual of Diligent;


 


including, in the case of Sugar:


 


(i)                                     the personnel, policies or business
strategies of Sugar


 


(ii)                                  any information relating to Sugar or
concerning clients of Sugar or parties with whom Sugar has any contractual or
business relationships other than Diligent


 


but excludes information that is
in the public domain other than as a result of disclosure by the other party
after the date of this agreement.


 


Insolvency Event means, in relation to a party, its:


 


(i)                                     insolvency (ie being unable to pay debts as they fall
due) or


 


(ii)                                  receivership, voluntary or involuntary


 


(iii)                               liquidation, or


 


(iv)                              bankruptcy


 


Services means the following to be carried out by Sugar for
Diligent:


 


(a)                                  review of its management structure;


 


(b)                                 the re-design of its sale model;


 


(c)                                  lifting the performance of its sales team;


 


(d)                                 carrying out all necessary workshops and training
programmes;


 


(e)                                  developing KPIs and KRAs for sale team members;


 


(f)                                    creating recruitment and selection policies;


 


(g)                                 re-training all existing team members: and


 


(h)                                 evaluating feedback


 


as identified in the
confidential report prepared by Sugar entitled “Business Growth Proposal for
Diligent Board Books” (“Proposal”) annexed to this Agreement.


 


Sugar’s IP means the intellectual property rights, including
without limitation patents, designs, trademarks (registered or unregistered), copyright
or otherwise owned or controlled by Sugar.


 


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2.                                      General Purpose of this Agreement


 


2.1                               Appointment


 


The general purpose of this agreement is to
enable Sugar to provide the Services to Diligent, and Diligent appoints Sugar
to perform the Services on an exclusive basis.


 


2.2                               Term


 


                                                The term of this agreement is four (4) months
from the Commencement Date, subject to clause 8.


 


2.4                               Sugar not Liable


 


                                                Notwithstanding that Sugar is to provide the Services
to Diligent, Sugar assumes no liability for the success of those Services and
in particular but without limitation does not warrant that the major outcomes
identified in the Proposal will be met.


 


3                                         Obligations of the Parties


 


3.1                               Provision
of Services by Sugar


 


In providing the Services Sugar must do so


 


(a)                                  to the
highest professional standards;


 


(b)                                 in a
diligent, proper and business-like manner with due care and attention;


 


(c)                                  in a
professional and courteous manner;


 


(d)                                 to the
reasonable satisfaction of Diligent;


 


(e)                                  in a
way that will not impair or damage Diligent’s goodwill, reputation, marketing
strategy or competitive standing;


 


(f)                                    using
personnel who comply individually  with
the provisions of this clause 3;


 


(g)                                 in
accordance with the Proposal, particularly the sections entitled “Solution” and
“Adding Sugar — Phases 1, 2, 3, 4, 5 and 6.


 


3.2                               Further
Requirements on Sugar


 


Without
limiting any obligation imposed on Sugar by this agreement, Sugar must:


 


(a)                                  ensure
that its trainers and employees engaged in providing the Services comply with
this Agreement and do not cause Sugar to breach any of its obligations under
this Agreement;


 


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(b)                                 not,
and must ensure that each of its employees and Trainers does not, engage in any
conduct that is illegal, unethical, misleading, deceptive;


 


(c)                                  comply with all applicable laws or requirements of any authority or
governmental agency;


 


(d)                                 comply with applicable Privacy Principles and Diligent’s privacy policies
in force from time to time regarding the collection and use of any personal
information;


 


(e)                                  meet all deadlines for each of
the phases specified in the Proposal;


 


(f)                                    report to Diligent as provided by
the Proposal and clause 5.6.


 


3.3                               Diligent’s Obligations


 


Diligent must:


 


(a)                                  ensure that all necessary resources (human, financial
and technical) are made available to enable Sugar to provide the Services as
required by the Proposal and this Agreement;


 


(b)                                 pay to Sugar the fee specified in Clause 4;


 


(c)                                  direct its employees to co-operate with Sugar in the
manner anticipated by the Proposal;


 


(d)                                 co-operate in all reasonable ways to ensure the
objectives of the Proposal are met.


 


4.                                     Fees and Payment


 


4.1                              Fees


 


The total fee for the
provision of the Services by Sugar shall be $US31,000.00 per month, payable in
arears


 


4.2                              Payment of Fees


 


The first monthly payment
shall be paid no later than 10 days after the end of the first month following
the Commencement Date, and each subsequent payment shall be made no later than
10 days after the end of the previous month.


 


4.3                              Travel and Accommodation Costs


 


In addition to the above
fee, Diligent shall pay on a pre-approved basis, all reasonable travel and
accommodation costs incurred by Sugar’s personnel providing the Services in
line and in accordance with Diligent’s existing Travel Policy.


 


4.4                              Goods and Services Tax (GST)


 


All payments under this
clause 4 shall be plus New Zealand GST, if applicable.


 


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5.                                      Further Covenants


 


5.1                               Development
of Further IP


 


Any sales or advertising copy,
artwork and other marketing, public relations and promotions material prepared
by Diligent or Sugar for or on behalf of Diligent during the term, will on its
creation, be vested in Diligent and remain Diligent’s intellectual property


 


5.2                               Client feedback


 


Each
of the parties must give the other:


 


(a)                                  a summary of any general feedback in relation to the Services;


 


(b)                                 in the case of Diligent, the details of any significant complaint about
the Services from its employees or clients, including copies of any
correspondence and written details of any conversation as soon as practicable
after the complaint is made.


 


5.3                               Reports


 


Sugar shall provide to
Diligent summaries of Sugar’s activities under this agreement, and generally
liaise with and report to Diligent, as required by the Proposal.


 


6.                                      Intellectual Property Rights


 


6.1                               Acknowledgement
by Sugar


 


Sugar acknowledges and
agrees that:


 


(a)                                  Diligent owns or is entitled to use Diligent’s
IP;


 


(b)                                 this Agreement does not give Sugar or any other
person any interest in Diligent’s IP;


 


(c)                                  Sugar will be given access and usage rights to
Diligent’s Software and related customer service during the term of this
Agreement;


 


(d)                                 Sugar must not transfer or licence to any person
any part of Diligent’s IP or the right to use or apply any part of Diligent’s
IP.


 


6.2                              Use of Intellectual Property


 


Sugar must only use Diligent’s IP in
accordance with any directions given by Diligent.  Without limiting this obligation, Sugar must:


 


(a)                                   obtain Diligent’s prior consent to the use of
any materials containing any part of Diligent’s IP;


 


(b)                                  not use Diligent’s IP contrary to any direction
given by Diligent;


 


(c)                                   not use any part of Diligent’s IP in combination
with any other name, logo, or trade mark, except in connection with the
provision of the Services Sugar will provide Diligent;


 


(d)                                 not register or seek to register any part of Diligent’s IP;


 


(e)                                  not give permission to any person to apply or use Diligent’s IP.


 


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6.3                               No rights


 


Sugar does not acquire any intellectual
property rights in or in relation to any part of Diligent’s IP.


 


6.4                               Acknowledgement by Diligent


 


Diligent
acknowledges and agrees that:


 


(a)                                  Sugar owns or is entitled to use Sugar’s IP;


 


(b)                                 this agreement does not give Diligent or any other person any interest in
Sugar’s IP;


 


(c)                                  Diligent must not transfer or license to any person any part of Sugar’s
IP or the right to use or apply any part of Sugar’s IP.


 


6.5                               Use of Intellectual Property


 


Diligent must only use Sugar’s IP
in accordance with any directions given by Sugar.  Without limiting this obligation, Diligent
must:


 


(a)                                  obtain Sugar’s prior consent to the use of any materials containing any
part of Sugar’s IP;


 


(b)                                 not use Sugar’s IP contrary to any direction given by Sugar;


 


(c)                                  not use any part of Sugar’s IP in combination with any other name, logo,
or trade mark, except in connection with the provision of the Services;


 


(d)                                 not register or seek to register any part of Sugar’s IP;


 


(e)                                  not give permission to any person to apply or use Sugar’s IP.


 


6.6                               No
Rights


 


Diligent does not acquire any intellectual
property rights in or in relation to any part of Sugar’s IP.


 


6.7                               Other
Intellectual Property Rights


 


Other than as
provided by clause 5.1, Diligent acknowledges that Diligent has and will have
no right title or interest in or to the any material created or used by Sugar
in providing the Services, and Sugar agrees to let Diligent use whatever
materials Sugar provides or creates during the time of this agreement to
improve Diligent’s business performance, and specifically for Diligent to use
such materials to improve the performance of the Diligent Global Sales Force.


 


7.                                      Dispute Resolution


 


7.1                               Parties to  Co-operate


 


From
and after the execution of this Agreement the parties agree to co-operate with
the other to ensure that the desired objectives come to fruition.


 


7.2                               Parties
to Meet as Necessary


 


In
the spirit of mutual goodwill and co-operation in the event of any differences
or difficulties arising between the parties, those parties shall meet with each
other as necessary to discuss in good faith those differences and 


 


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each
party shall use its best endeavours to resolve the matter before recourse to
arbitration or other legal process.


 


7.3                              Resolution
of Dispute


 


If there is a dispute
between the parties about this Agreement or any term or condition of this
Agreement that dispute will be resolved as follows:


 


(i)                          either one party will
give notice to the other of the item in dispute and detailing that party’s view
of the dispute and its proposal of the way to resolve the dispute;


 


(ii)                       the other
party, on receipt of the notice, will reply within 14 (fourteen) days to the
party giving the notice specifying that party’s response to each of the items
raised by the first party;


 


(iii)                    each party
will then within 14 (fourteen) days nominate a senior executive to attend a
meeting where the parties table and discuss the items in dispute or the alleged
breach;


 


(iv)                   if the nominated senior executives are unable to resolve the
dispute or alleged breach within fourteen (14) days of their nomination, the
same shall be submitted to the mediation of a mediator experienced in
commercial mediation and appointed by the parties;


 


(v)                      all disputes not resolved pursuant to
subparagraphs (i) — (iv) above shall be resolved by arbitration
before a single arbitrator in New York, New York, in accordance with the
commercial arbitration rules of the American Arbitration Association.  A request for interim measures addressed by a
party to a judicial authority shall not be deemed incompatible with this
agreement to arbitrate or a waiver of the right to arbitrate; however, all
issues regarding the scope of arbitration or the jurisdiction of the
arbitrator, other than a request for interim measures addressed by a party to a
judicial authority, shall be referred to the arbitrator.


 


(vi)                   at any hearing, the
parties shall have the right to submit argument and evidence, including testimony,
by video conference.  This agreement to
arbitrate, together with any proceedings in connection with an arbitration
award, shall be governed by the Federal Arbitration Act, 9 U.S.C. Sec. 1 et
seq.


 


8.                                      Termination


 


8.1                               Default


 


Notwithstanding the provisons of Article 7 and without limiting any
other right or remedy that either party is entitled to by law, either party may
by written notice to the other party:


 


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(a)                                  terminate this contract if the other party
commits a breach of any provision of this Agreement and:


 


(i)                                      where the breach is capable of
remedy, fails to remedy the breach within twenty (20) business days after
receipt of notice from the other party giving notice specifying the breach and
requiring it to be remedied, or


 


(ii)                                   where the breach is not capable
of remedy but the consequences of the breach are capable of minimization or
elimination, fails to minimize or eliminate the consequences of the breach to
the reasonable satisfaction of the other party within twenty (20) business days
after receipt of notice from the other party specifying the breach.


 


(b)                                 immediately terminate this contract if:


 


(i)                                     an Insolvency Event happens in
relation to the other party


 


(ii)                                  the other party breaches a material
term of this agreement in a way that is not capable of remedy, minimisation, or
elimination.


 


For the purposes of this clause a breach of a material term would include a
breach of such seriousness or consequence that the reputation of:


 


(1)                                   Diligent or Diligent’s IP is or is likely to
be materially injured or reduced or


 


                                                                                               (2)                                   Sugar or Sugar’s IP is or is likely to be
materially injured or reduced or


 


(3)                                  the other party is fraudulent in connection
with this Agreement.


 


8.2                               Termination
by Diligent


 


Notwithstanding any other provisions herein,
Diligent may also terminate this Agreement on giving 30 days notice in writing
to Sugar if it reasonably considers that Sugar is not complying with the
Proposal. When giving such notice, Diligent shall give the reasons it is
terminating the Agreement. Diligent shall be liable to pay Sugar for the
Services up to the actual date of termination.


 


8.3                               Consequences of termination


 


On expiry or
termination of this Agreement for any reason each party must immediately stop
using the other’s IP.  Without limiting
this obligation each party must immediately:


 


(a)                                  deliver up to the other all Materials,
documents or materials containing any IP or Confidential Information;


 


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(b)                                 advise the other party in writing of the
names and addresses of any persons who may be in possession of any IP or
Confidential Information;


 


(c)                                  certify to the other party that it has
returned all IP or Confidential Information;


 


(d)                                 immediately pay to the other all amounts due and payable up to the date
of termination under this Agreement;


 


(e)                                  continue to be bound by the terms of this Agreement which expressly are
to be observed or performed after the expiration or termination.


 


9.                                      Representations, Warranties and
Indemnity Obligations


 


9.1                               IP
Rights


 


Each
party makes the following representations and warranties and undertakes the
following indemnity obligations for the benefit of the other:


 


(a)                                  That it owns its IP Rights;


 


(b)                                 That to the best of its knowledge and belief
the IP Rights do not infringe upon the copyrights, trademarks or patents of any
third person or parties.


 


These
representations and warranties shall survive the termination of this agreement.


 


9.2                               Indemnity


 


Each
party agrees:


 


(a)                                  To indemnify and hold harmless the other and
its officers employees distributors agents licensees from any damage, loss or
expense (including legal fees) occasioned by any claim, demand, action or
proceeding made or initiated by a third person based upon the breach of any of
the representations and warranties made by the breaching party pursuant to
paragraph 9.1 above;


 


(b)                                 That the party not in breach, in consultation
with the breaching party where practicable, shall have the right to withhold
amounts otherwise payable to the breaching party under this Agreement and to
apply such amounts (as may be required) to the satisfaction of the above
indemnity;


 


These indemnities shall survive the termination of
this agreement.


 


10.                              Assignment


 


10.1                       No
Assignment


 


                                               Sugar shall
not be entitled to assign this Agreement and its rights and obligations under
it to any third party.


 


10.2                       No
Consent Required to Public Listing


 


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                                               If there
is a  transfer of shares in Sugar
resulting in a change of control of Sugar due to the public listing of all or
some of the shares in Sugar on either or both of the stock exchanges in New
Zealand or Australia, such transfer is authorised under this agreement and no
further consent or approval is required from Diligent.


 


11.                               Confidentiality


 


11.1                        Confidentiality


 


Subject to clause 11.2 all Confidential
Information is to remain confidential and a party must not, without the prior
consent of the party to whom the Confidential Information relates:


 


(a)                                  disclose
the Confidential Information;


 


(b)                                 use the
Confidential Information in any manner that may, or is intended to, cause loss
or damage to the disclosing party or its related bodies corporate.


 


11.2                        Permitted
Disclosure


 


Confidential Information may be disclosed:


 


(a)                                  to the
Board of Directors and any officer, employee or auditor of a party;


 


(b)                                 to any
court of competent jurisdiction that has directed it;


 


(c)                                  to any
professional or other independent consultant or adviser engaged by a party if
that consultant or adviser is under a duty of confidentiality; and


 


(d)                                 to any
relevant stock exchange as required by the listing rules of that stock
exchange.


 


11.3                        Protection
of Confidential Information


 


Each party must:


 


(a)                                  take or
cause to be taken such reasonable precautions as may be necessary to prevent
the disclosure of any Confidential Information otherwise than in accordance
with this agreement; and


 


(b)                                 at all
times comply with any applicable laws or industry standards relating to privacy
or data protection.


 


11.4                        Survival


 


The parties’ obligations under this clause 11 survive the termination of this agreement.


 


11.5                        Remedy
for Breach


 


Each party acknowledges that any breach by
either or both of them of the provisions of this clause 12 will be likely to result
in a material adverse commercial and financial impact on the non-breaching
party and therefore, the non-breaching party shall have the rights in addition
to any remedies at law, including to seek an interim injunction without the
requirement to put up any bond for potential damages.


 


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12.                               Notices


 


12.1                        Written
Notice Required


 


A notice relating to this agreement must be
given in writing and may be given by an agent of the sender.


 


12.2                        How
Notice to be Given


 


A notice may be give by being:


 


(a)                                  personally
delivered;


 


(b)                                 left at
the party’s current address for notices;


 


(c)                                  sent to
the party’s current address for notices by pre-paid ordinary mail; or


 


(d)                                 sent by
fax to the party’s current fax number for notices.


 


12.3                        Delivery
Particulars


 


The particulars for deliver of notices are
initially:




	
  Diligent:

  	
   

  	
   

  
	
   

  	
   

  	
  39
  West 37th Street,

  
	
   

  	
   

  	
  8th Floor,

  
	
   

  	
   

  	
  New
  York, NY

  
	
   

  	
   

  	
  10018,
  USA

  
	
   

  	
   

  	
   

  
	
  Attention:

  	
   

  	
  Alex Sodi, CEO

  
	
   

  	
   

  	
   

  
	
  Sugar:

  	
   

  	
  Level 3

  
	
   

  	
   

  	
  7 Falcon Street

  
	
   

  	
   

  	
  Parnell

  
	
   

  	
   

  	
  Auckland

  
	
  Telephone:

  	
   

  	
  (9)      337
  0061

  
	
  Fax:

  	
   

  	
  (9)      309
  0788

  
	
  Attention:

  	
   

  	
  John Wall

  
	
   

  	
   

  	
   

  



Each party may change its particulars for
delivery of notices by notice to the other.


 


12.4                        When
Notice Received


 


A notice is deemed to have been received:


 


(a)                                  if posted,
3 (three) business days after posting;


 


(b)                                 if
delivered, on the date of deliver; or


 


(c)                                  if sent by
fax, when the sender’s fax machine produces a report that the fax was sent in
full to the addressee.


 


13                                  Announcements


 


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Neither party will make any public announcement regarding this
Agreement, the Proposal, or the Services, unless and until the form and timing
of any announcement has been agreed in writing between the parties.


 


14.                               General


 


14.1                        Amendment


 


This document may only be varied or replaced by
a document executed by the parties.


 


14.2                        Waiver
and Exercise of Rights


 


(a)                                  A single
or partial exercise or waiver by a party of a right relating to this document
does not prevent any other exercise of that right or the exercise of any other
right.


 


(b)                                 A party is
not liable for any loss, cost or expense of any other party caused or
contributed to by the waiver, exercise, attempted exercise, failure to exercise
or delay in the exercise of a right.


 


14.3                        Further
Steps


 


Each party must promptly do whatever any other
party reasonably requires of it to give effect to this document and to perform
its obligations under it.


 


14.4                        Severability


 


In the event that 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 any other provisions of this agreement or any other such
instrument.


 


14.5                        Faxed Execution


 


The
parties acknowledge that the execution of a facsimile copy of this Agreement
and transmission by facsimile, each to the other or their respective agent or
solicitors, shall be sufficient evidence to constitute offer and acceptance and
to satisfy the requirements of Section 2 of the New Zealand Contracts
Enforcement Act 1986.


 


14.6                        Force majeure


 


                                                Neither party will be in breach of this
Agreement if the breach is caused by an act of God, fire, act of government or
state, war, civil commotion, insurrection, embargo, prevention from or
hindrance in obtaining any raw materials, energy or other supplies, labor
disputes of whatever nature and any other reason beyond the control of either
party.


 


14.7                        Governing
Law and Jurisdiction


 


(a)                                  This
document is governed by and is to be construed in accordance with the laws
applicable in New York, NY USA.


 


(b)                                 Each party
irrevocably and unconditionally submits to the non-exclusive jurisdiction of
the courts of New Zealand and New York, and 


 


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any courts which have
jurisdiction to hear appeals from any of those courts and waives any right to
object to any proceedings being brought in those courts.


 


Execution


 


 


SIGNED for and on


behalf of SUGAR INTERNATIONAL


LIMITED in the presence of:


 


 


SIGNED for and on


behalf of DILIGENT BOARD MEMBER


SERVICES, INC in the presence of:


 


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