The following agreement is agreed upon via purchase of InteSolv Products and Services.
Consulting Agreement
This Master Agreement will confirm the mutual understanding of the terms and conditions applicable to the consulting and solution delivery relationship between Client and InteSolv, Inc. , 8303 N Mopac Expy C240, Austin TX 78759 (“Consultant”).
Recitals
- Consultant provides technology-based consulting and solution delivery services including, but not limited to; application development, application support, systems integration and application hosting services.
- Client desires to retain Consultant to provide the consulting and solution delivery services outlined above.
Agreement
In consideration of the foregoing and of the mutual promises set forth herein, and intending to be legally bound, the parties hereto agree as follows:
- Consultant agrees to provide certain services and to perform specific tasks to complete the “Scope of Services” as defined by a Project, hereto appended to Exhibit A “Scope of Services”, in accordance with the other terms and conditions contained in this Agreement.
If the Client desires to modify the Final Specifications per the “Scope of Services” document, Client will notify the Consultant, and the Consultant will estimate a price and revised timetable that will be incorporated into a “scope addendum” signed by both parties.
Term This Master Agreement is effective as of Product and Services purchase date. It continues in effect, as the framework within which each “Scope of Services” will be handled, until terminated by notices from either party or superseded by subsequent agreement.
Each “Scope of Services’ shall continue until completed, or until terminated in accordance with their terms, unless earlier terminated for default.
Compensation
In consideration of the services to be performed by Consultant, Client agrees to pay Consultant at the rates set forth in Exhibit A-“Scope of Services”.
Client to pay all Consultant invoices on a “due upon receipt” basis. Client will make reasonable efforts to review and approve each invoice in accordance with its usual business practices and will not unreasonably withhold approval and processing. Upon acceptance of a Project “Scope of Services” document, Consultant shall deliver an invoice or series of invoices in accordance with the scope of services payment schedule.
Upon Client’s approval in advance, Client shall pay reasonable and necessary travel and business expenses incurred by Consultant in connection with the performance of its services under this Agreement. Consultant will provide Client with a monthly itemized invoice for Consultant’s expenses and services pertaining to a specific Project as contained as an addendum to Exhibit A- “Scope of Services”.
Proprietary Information Each party acknowledges that it may be furnished with or may otherwise receive or have access to information or material which relates to past, present or future products, software, research development, inventions, processes, techniques, designs or technical information and data, marketing plans, and so on, (The “Proprietary Information”). Each party agrees to preserve and protect the confidentiality of the Proprietary Information and all of its physical forms, whether disclosed to the other party before this Agreement is signed or afterward. In addition, a party will not disclose or disseminate the Proprietary Information for its own benefit or for the benefit of any third party. The previously stated obligations do not apply to any information which (1) is publicly known; (2) is given to a party by someone else who is not obligated to maintain confidentiality; or (3) a party had already developed prior to the day this Agreement is signed, as evidenced by documents. Neither party will take or cause to be taken any physical forms of Proprietary Information (nor make copies of same) without the other party’s written permission. Within three (3) days after the termination of this Agreement (or any other time at the other party’s request), a party will return to the other party all copies of Proprietary Information in tangible form. Despite any other provisions of this Agreement, the requirements of this Section will survive termination of this Agreement.
Independent Contractor Nothing in this Agreement will be deemed to place the parties in the relationship of employer / employee, partners, or joint venturers. Neither party will have any right to obligate or bind the other in any manner, except as provided for in this Agreement. Each party agrees and acknowledges that it will not hold itself out as an authorized agent with the power to bind the other party in any manner. Each party will be responsible for any withholding taxes, payroll taxes, disability insurance payments, unemployment taxes, and other similar taxes or charges with respect to its activities in relation to performance of its obligations under this agreement.
Work Product Rights & Licensor
(a) It is recognized that Consultant is using prior experience, business/technical expertise, programmatic techniques & methods, code libraries, and such other proprietary intellectual property (collectively, the “Consultant Methodologies”) to produce and cause to be produced custom application(s) and/or authored content for Client. To maintain Consultant’s ability to deliver technology solutions and remain competitive, Consultant retains all title, ownership rights, and intellectual property pertaining to programmatic code, copyrights, methodologies, and concepts involved in the discovery, design, development, and delivery of custom application(s) and/or authored content to Client.
(b) Custom Software Application Development: It is recognized that Client may desire to use custom application(s) designed and developed by Consultant to gain competitive advantage. Consultant grants Client a non-exclusive, non-transferable, limited right & license to install, and use custom application(s) developed by Consultant solely for internal business purposes. Unless covered under post deployment support plans, all such support after acceptance will be on a time & materials basis. Furthermore, it is recognized that Client may desire to modify the custom application(s) independent from Consultant services. As a result, Consultant can purchase a licensing agreement for ongoing maintenance or source code acquisition as part of a separate agreement.
(c) Custom Content Authoring: Subject to section 6(a) outlined above, Client shall retain all rights and title to custom authored content from Consultant services without any limitations to use or transferability. As a result, Consultant grants Client an exclusive right to use and modify such content, at such time any modifications will render the remaining warranty null and void. As part of the Services, Consultant shall deliver to Client the deliverables set forth in an applicable Scope of Services, as well as all reports, information, materials, and other work product that Consultant, its agents, employees, and/or subcontractors may develop that arise out of performance of the Services (collectively, the “Deliverables”). Except for the Consultant Methodologies imbedded therein, Client shall have title to, ownership of, and all proprietary rights in Consultant’s work product and the Deliverables.
Consultant will keep confidential Client proprietary information in compliance with the stipulations outlined in this agreement.
Team Composition Consultant shall work with Client to ensure Consultant’s employees assigned to this project meet the standards established by Client as necessary for the performance of the services.
Employee No-Hire During the term of this agreement and any related engagements and for a period of one year after Consultant ceases to provide services to Client, Client shall not hire or retain, directly or indirectly, any person who is an employee of Consultant. Client may not hire or retain, directly or indirectly, any former employee of Consultant that previously worked on Client related initiatives during the nine month period immediately following the employee’s voluntary resignation. Student interns, contractors, and representatives of Consultant, whose employment relationship is anticipated to be temporary, are exempt from this requirement.
Defects In the event of any defect in the Program within 90 day(s) after the date of the certificate of acceptance, the Client will notify the Consultant in writing. At no charge, the Consultant will then take prompt action to remedy and correct any failure of the Program to meet the Final Specifications. However, if the Client makes modifications to the Program or integrates any application with our program, the remedy set forth in this Section will not apply.
Waiver of Warranty Aside from the warranty made in Section [Defects] above, the Consultant makes no other warranty of any kind, express or implied, including, without limitation, warranties of merchantability. The Consultant will not be liable for any damages, whether direct, indirect, special, or consequential. The Client agrees that the custom application(s) are not consumer goods for purposes of federal or state warranty laws.
Indemnification Consultant and Client, upon mutual agreement, hereby indemnifies and agrees to defend and hold harmless the other party from and against any and all claims, demands and actions, and any liabilities, damages or expenses resulting there from, including court costs and reasonable attorneys’ fees, arising out of or relating to the services performed by Consultant under this Agreement or the representations and warranties made by Consultant pursuant to paragraph 9 hereof. Consultant’s obligations under this paragraph 9 hereof shall survive the termination, for any reason, of this Agreement.
Dispute Resolution The parties will endeavor to settle amicably by mutual discussions any disputes, differences, or claims whatsoever related to this Agreement. Failing such amicable settlement, any controversy, claim, or dispute arising under or relating to this Agreement, including the existence, validity, interpretation, performance, termination or breach thereof, shall finally be settled by arbitration in accordance with the Arbitration Rules of the American Arbitration Association (“AAA”).
There will be three (3) arbitrators (the “Arbitration Tribunal”), the first of which will be appointed by the claimant in its notice of arbitration, the second of which will be appointed by the respondent within thirty (30) days of the appointment of the first arbitrator and the third of which will be jointly appointed by the party-appointed arbitrators within thirty (30) days thereafter. The language of the arbitration shall be English. The Arbitration Tribunal will not have the authority to award punitive damages to either party. Each party shall bear its own expenses, but the parties will share equally the expenses of the Arbitration Tribunal and the AAA. This Agreement will be enforceable, and any arbitration award will be final, and judgment thereon may be entered in any court of competent jurisdiction. The arbitration will be held in Austin, Texas. Notwithstanding the foregoing, claims for preliminary injunctive relief, other pre-judgment remedies, and claims for Client’s failure to pay for Services in accordance with this Agreement may be brought in a state or federal court in the United States with jurisdiction over the subject matter and parties.
If either party is required to retain the services of any attorney to enforce or otherwise litigate or defend any matter or claim arising out of or in connection with this Agreement, then the prevailing party will be entitled to recover from the other party, in addition to any other relief awarded or granted, its reasonable costs and expenses (including attorneys’ fees) incurred in the proceeding.
Amendment This Agreement may be amended only in writing, signed by Consultant and by a duly authorized representative of Client.
Severability If any term, provision, covenant or condition of this Agreement, or the application thereof to any person, place or circumstance, shall be held by a court of competent jurisdiction to be invalid, unenforceable or void, the remainder of this Agreement and such term, provision, covenant or condition as applied to other persons, places and circumstances shall remain in full force and effect.
Rights Cumulative Any specific right or remedy provided in this Agreement will not be exclusive but will be cumulative upon all other rights and remedies set forth in this section and allowed under applicable law.
Force Majeure Neither party will be deemed in default of this Agreement to the extent that performance of its obligations, or attempts to cure any breach, are delayed or prevented by reason of circumstance beyond its reasonable control, including without limitation fire, natural disaster, earthquake, accident or other acts of God (“Force Majeure”), provided that the party seeking to delay its performance gives the other written notice of any such Force Majeure within 15 days after the discovery of the Force Majeure, and further provided that such party uses its good faith efforts to cure the Force Majeure. If there is a Force Majeure, the time for performance or cure will be extended for a period equal to the duration of the Force Majeure. This Article will not be applicable to any payment obligations of either party.
Assignment Neither party can assign this contract without the other party’s prior written consent.
Compliance with Law In connection with his services rendered hereunder, Consultant agrees to abide by all federal, state, and local laws, ordinances and regulations.
Governing Law This Agreement will be governed by the laws of the State of Texas.
Entire Agreement This Agreement contains the entire understanding and agreement between the parties hereto with respect to its subject matter and supersedes any prior or contemporaneous written or oral agreements, representations or warranties between them respecting the subject matter hereof.