CONSULTING AGREEMENT
THIS AGREEMENT is made as of this day, 1996, by and between XXXXXX XXXXXXX & CO.
INCORPORATED, a Delaware corporation ("COMPANY") with its principal place of
business at 0000 Xxxxxxxx, Xxx Xxxx, XX 00000 and Conversion Services
International, Inc. ("CONSULTANT") a New Jersey Corporation with its principal
place of business of 000 Xxxx Xxxxx Xxxxxxxx Xxxxxx Xxxxxxxxxx, XX 00000
(201-716-9800).
WHEREAS, CONSULTANT desires to contract with COMPANY to perform certain
services;
NOW, THEREFORE, in consideration of the mutual covenants hereinafter recited,
the parties agree as follows:
1. TERM OF AGREEMENT: This Agreement shall commence as of the date first written
above, and shall continue until terminated in accordance with the provisions of
paragraph 13 hereof. On termination, COMPANY'S obligation to pay any
compensation, except for services and expenses already agreed and incurred,
shall cease and terminate. Termination of this Agreement for any reason shall
not affect CONSULTANT'S obligations under paragraphs 10, 11, and 12, which
obligations shall continue for five (5) years from the date of termination.
CONSULTANT'S obligations under paragraph 15 will not be affected by termination,
and will be considered to be ongoing.
2. SCOPE OF WORK: COMPANY desires that CONSULTANT shall perform, and CONSULTANT
agrees to perform, such systems analysis and design services, computer
programming services and/or other consulting services as are set forth in
Schedule A, and such other services as hereafter may be requested by COMPANY and
agreed to by CONSULTANT (the "Services").
3. TECHNICAL DIRECTION: CONSULTANT shall report to and receive technical
direction only from such COMPANY employees or officers as are listed in exhibit
1 or as shall be designated by such employees or officers.
4. PRICE: COMPANY agrees to pay CONSULTANT for Services rendered in accordance
with the Payment Schedule set forth in Exhibit 1 attached hereto and
incorporated herein. Additional personnel and rates can, by mutual agreement, be
added to this contract through addendum to Exhibit 1.
5. REIMBURSEMENT OF EXPENSES: COMPANY shall not be liable to CONSULTANT for any
expenses paid or incurred by CONSULTANT unless agreed to in writing. CONSULTANT
shall provide COMPANY with documentation evidencing all approved expenses,
CONSULTANT agrees to a $35 per diem allowance for CONSULTANT employees when they
are working on COMPANY'S project. CONSULTANT agrees to reside in a hotel which
COMPANY has a corporate relationship. CONSULTANTS will use COMPANY'S Travel
Department (212-827-2865-Xxxxxx Xxxxx at the Xxxxxx Xxxxxxx Hotel Desk) for
Hotel reservations. COMPANY'S Travel Department reserves the right to substitute
a comparable Hotel in the event that no rooms are available at which COMPANY has
a corporate rate.
6. PAYMENTS: COMPANY shall pay each invoice submitted hereunder within sixty
(60) days of the receipt thereof.
7. INDEPENDENT CONTRACTOR: CONSULTANT acknowledges that it is acting as an
independent contractor, that CONSULTANT is solely responsible for its actions or
inactions, and that nothing in this Agreement shall be construed to create and
employment relationship between the parties. CONSULTANT is not authorized to
enter into contracts or agreements on behalf of COMPANY or to otherwise create
obligations of COMPANY to third parties. CONSULTANT shall be responsible for and
shall maintain adequate records of expenses it shall incur in the course of
performing Services hereunder and shall be solely responsible for and shall file
, on a timely basis, tax returns and payments required to be filled with or made
to any federal or state or local tax authority with respect to its performance
of Services hereunder. Neither federal, nor state nor local income tax of any
kind shall be withheld or paid by COMPANY ion behalf of CONSULTANT or the
employees of CONSULTANT. CONSULTATN shall not be treated as an employee with
respect to the Services performed hereunder for federal, state or local tax
purposes.
8. CONSULTANT'S PERSONNEL: The Services provided by CONSULTANT may be performed
by personnel who may be either employees or, with COMPANY's consent as required
below, independent subcontractors of CONSULTANT's for federal tax purposes.
Personnel supplied by CONSULTANT hereunder are not COMPANY's employees or
agents, and CONSULTANT assumes full responsibility for their acts. CONSULTANT
shall be solely responsible for the payment of compensation of CONSULTANT
personnel assigned to perform Services hereunder, and such personnel shall be
informed that they are not entitled to the provision of any COMPANY employee
benefits. COMPANY shall not be responsible for payment of workers' compensation,
disability benefits and unemployment insurance or for withholding and paying
employment taxes for any CONSULTANT personnel, but such responsibility shall be
that of ONSULTANT.
In the event that any federal, state or local government agency, any court of
any other applicable entity determines that the personnel provided by CONSULTANT
or any subcontractor or assignee of CONSULTANT hereunder are employees of
COMPANY for any purpose, CONSULTANT agrees to indemnify and hold COMPANY
harmless from all liabilities, costs and expenses (including, but not limited
to, attorney's fees) incurred by COMPANY.
In the event that any CONSULTANT personnel performing services hereunder are
found to be unacceptable to COMPANY for any reason, COMPANY shall notify
CONSULTANT and CONSULTANT shall immediately take appropriate corrective actions
or remove said personnel from performing Services hereunder and, if requested by
COMPANY, provide a qualified replacement.
In the event that CONSULTANT provides replacement personnel for any reason,
CONSULTANT shall not charge COMPANY for the number of hours required to train
the replacement until such personnel are familiar with the particular project
and all work done prior thereto, so that such replacement personnel are capable
of performing the Services as efficiently as the replaced personnel at the time
of departure.
CONSULTANT agrees that all CONSULTANT personnel performing Services hereunder at
COMPANY's premises shall, at COMPANY's request, agree to be subject to COMPANY's
standard procedures and compliance requirements, including but not limited to
the following:
a) background check;
b) fingerprints and FBI review;
c) drug tests;
d) execution of COMPANY's Code of Conduct; and
e) compliance with COMPANY's Employee Trading Policy.
Prior to performing any Services hereunder, all personnel utilized by CONSULTANT
in connection with the Services will be provided by CONSULTANT with a copy of
this Agreement and will agree in writing to be bound by all of the restriction
and covenants in this Agreement which pertain to the personnel.
Notwithstanding any other provision of this Agreement, CONSULTANT may not assign
or subcontract any work to be performed hereunder with the express written
consent of COMPANY.
Upon execution of this Agreement, CONSULTANT shall provide to COMPANY the
following document:
a) if CONSULTANT is incorporated, a certificate of good standing of
CONSULTANT as a corporation under the laws of the state of
CONSULTANT's incorporation; and
b) evidence of CONSULTANT's federal employer identification number.
Failure by CONSULTANT to provide COMPANY any documents required under this
section shall be grounds for withholding payments of CONSULTANT's
invoices.
[Unless otherwise agreed to in writing by COMPANY, CONSULTANT shall
provide the services of ________ on a full-time basis].
9. NON-HIRE: During the term of this Agreement, and for one year thereafter,
neither COMPANY nor CONSULTANT shall solicit, hire or knowingly engage any of
the other party's employees engaged in the subject matter of this Agreement for
one year following the termination of such employee's employment with the other
party, without such other party's prior written consent. In the event that
CONSULTANT provides COMPANY with written consent to hire any CONSULTANT
employee, COMPANY will pay a fee in accordance with the following table:
CONVERSION FEE SCHEDULE
Length of time CONSULTANT Conversion Fee Employee has been
providing Services to COMPANY:
Not more than one calendar month 25% of first year's annual base salary
> 1 month and = 2 months 20.8% of first year's annual base salary
> 2 months and = 3 months 16.6% of first year's annual base salary
> 3 months and = 4 months 12.4% of first year's annual base salary
> 4 months and = 5 months 8.2% of first year's annual base salary
> 5 months and = 6 months 4% of first year's annual base salary
> 6 months No fee
10. CONFIDENTIAL INFORMATION: For purposes of this Agreement, the term
"Confidential Information" shall mean any and all information of the COMPANY
which is disclosed to the CONSULTANT in written, graphic, recorded, photographic
or any machine readable form or which is orally conveyed to CONSULTANT.
CONSULTANT covenants and agrees that CONSULTANT will use Confidential
Information only for the purposes of CONSULTANT's work for the COMPANY and shall
not disclose any Confidential Information to any person or persons outside of
the COMPANY.
CONSULTANT further agrees to store and maintain all Confidential Information in
a secure place. On the termination of this Agreement, CONSULTANT shall deliver
all records, data, information, and any other documents produced or acquired
during the performance of this Agreement and all copies thereof to COMPANY. Such
material shall at all times remain the exclusive property of COMPANY, unless
otherwise agreed in writing. Upon termination, CONSULTANT agrees to make no
further use or utilization of any Confidential Information.
It is expressly understood that CONSULTANT shall not be liable for disclosure of
any such Confidential Information if the same:
a) was in the public domain at the time it was disclosed;
b) is disclosed with the prior written approval of COMPANY;
c) becomes known to CONSULTANT from a source other than the COMPANYY without
breach of this Agreement by CONSULTANT; or
d) is disclosed pursuant to the order or requirement of a court,
administrative agency, or other governmental body.
CONSULTANT agrees not to disclose the identity of COMPANY as a client of
CONSULTANT, the existence of this Agreement, or the nature of the relationship
established by this Agreement.
11. DISCLOSURE OF INVENTIONS; INNOVATIONS: CONSULTANT agrees to promptly
disclose in writing to COMPANY any and all inventions, improvements, discoveries
and copyrightable material, computer programs, processes, manufacturing
techniques, trade secret formula or know-how, patentable or unpatentable,
copyrightable or uncopyrightable, protectable or unprotectable under any form of
legal protection afforded to intellectual property, which during the term of
this Agreement, and in relation to the performance of this Agreement, CONSULTANT
may conceive, make, develop, author or work on in whole or in part solely or
jointly with others. COMPANY agrees to hold all such disclosures in confidence
unless the invention, improvement, discovery or work is or becomes COMPANY's
property as provided in paragraph 12.
12. INVENTIONS, PATENTS, TRADE-MARKS AND COPYRIGHTS:
(a) DEFINITIONS:
(1) The term "work" means any and all writings, designs, models, drawings,
photographs, physical property, reports, formulas, patterns, devices,
compilations, etc., whether or not protectable under Title 17 of the U.S.
Code, and which are created for COMPANY by CONSULTANT, whether alone or
with others, and whether they be created by independent contractors,
employees or agents of CONSULTANT.
(2) The term "trademark" means any name, word, phrase, logo, design or other
graphic depiction generated during the performance of this Agreement which
is or can be used to describe either a product or service of Xxxxxx
Xxxxxxx, and which are created for COMPANY by CONSULTANT, whether alone or
with others, and whether they be c created by independent contractors,
employees or agents of CONSULTANT.
(3) The term "invention" means any designs, processes, inventions or
discoveries, whether or not patentable or otherwise protectable under
Title 35 of the U.S. Code, that are created for COMPANY by CONSULTANT,
whether alone or with others, and whether they be created by independent
contractors, employees or agents of CONSULTANT.
(b) WORK MADE FOR HIRE: In relation to the performance of this Agreement
CONSULTANT may create certain works for COMPANY that may be copyrighted of
copyrightable under the laws of the United States. To the extent that any
such works are created, the CONSULTANT will be considered to have created
a Work Made for Hire as defined in 17 U.S.C. ss.101, and COMPANY shall
have the sole right to the copyright. In the event that any such work
created by CONSULTANT does not qualify as a Work Made for Hire, CONSULTANT
hereby assigns its copyright and all rights, throughout the world, in and
to the work to COMPANY, as provided for in subsection (c) below.
(c) TITLE TO WORKS, TRADE-MARKS, AND INVENTIONS PRODUCED: It is understood and
agreed that the entire right, title and interest throughout the world to
all works, trademarks, and/or inventions which are conceived of, prepared,
procured, generated or produced, whether or not reduced to practice, by
CONSULTANT, either solely or jointly with others during the course of, in
connection with, or as related to the performance of this Agreement, shall
be and hereby are vested and assigned by CONSULTANT to COMPANY.
CONSULTANT agrees to execute any and all documents prepared by COMPANY, and to
do all other lawful acts as may be necessary, useful or convenient for COMPANY
to establish, document, and protect such rights.
CONSULTANT has acquired or shall acquire from each of its employees,
consultants, and subcontractors, if any, the necessary rights to all such works,
trademarks, and inventions produced by such employees, consultants, and
subcontractors, within the scope of their employment by CONSULTANT in performing
Services under this Agreement. CONSULTANT shall obtain the cooperation of each
such party to secure to COMPANY or its nominees the rights COMPANY may acquire
in accordance with the provisions of this paragraph 12.
13. TERMINATION: COMPANY may discontinue the use of CONSULTANT's services with
or without reason or cause, at any time immediately upon written notice to
CONSULTANT. CONSULTANT shall have the right to terminate this Agreement
upon prior written notice setting forth the effective date of termination;
provided, however, that such date shall not be prior to CONSULTANT's
completion of all Services that CONSULTANT shall have agreed to perform.
In the event of any such termination, COMPANY shall make payments to
CONSULTANT for all work performed in accordance with the terms and
conditions herein up to the date of termination, and CONSULTANT shall
immediately return to provide to COMPANY, without limitation, all
documents, drawings and other items of whatever nature supplied to
CONSULTANT by COMPANY or developed by CONSULTANT in accordance with this
Agreement.
14. CONFLICTS OF INTEREST: CONSULTANT shall not act as an agent for,
consultant to, or as an officer, employee, or other representative of any
subcontractor or supplier to COMPANY, nor serve in any of the foregoing
capacities for any of COMPANY's competitors or prospective competitors,
without giving prior written notification to COMPANY. CONSULTANT hereby
warrants that there is no conflict of interest between CONSULTANT's other
employment, if any, or other CONSULTANT contracts, if any, and the
activities to be performed hereunder. CONSULTANT shall advise COMPANY if a
conflict of interest arises in the future.
15. WARRANTY INDEMNIFICATION:
(a) CONSULTANT represents and warrants that it will not infringe any
copyrights, patents, trademarks or other proprietary rights of any third
party in connection with CONSULTANT's performance of the Services
hereunder.
(b) CONSULTANT shall indemnify, defend and hold COMPANY harmless against all
losses, damages, costs or expenses, including attorney's fees, resulting
from any suit or proceeding brought for any claim of infringement of
copyright, patents, trademarks or other proprietary rights or for unfair
competition arising from compliance with or utilization of CONSULTANT's
designs, specifications or instructions.
16. REPORTS: CONSULTANT, when directed, shall provide written reports with
respect to the Services rendered hereunder.
17. LAWS AND REGULATIONS: CONSULTANT and CONSULTANT's employees shall comply
with all applicable laws, rules and regulations, as well as all applicable
securities laws and/or compliance regulations and procedures of COMPANY.
In particular, and without limiting the forgoing, of CONSULTANT is
performing any services on behalf of COMPANY's municipal finance business
the following paragraph shall apply:
COMPANY and CONSULTANT confirm that CONSULTANT is being retained solely to
provide technical and analytical services in connection with the matters
contemplated hereby and not for the purpose of obtaining or retaining municipal
finance business for COMPANY. Without limiting the generality of the foregoing,
CONSULTANT agrees that (a) neither it nor any of its officers, directors,
partners and non-clerical employees will make any political contributions or
other payments, directly or indirectly, for the purposes of obtaining or
retaining municipal finance business, (b) it will not enter into any arrangement
with any third party to share in any of the fees payable hereunder without
COMPANY's prior written consent, (c) it will comply with all applicable laws,
rules and regulations including ethics rules governing conflicts of interest,
and (d) it will certify annually during the term of this Agreement to the effect
set forth in the next succeeding sentence. CONSULTANT represents to COMPANY that
neither it nor any of its officers, directors, partners and non-clerical
employees during the past two years or since January 1, 1994 (whichever period
is shorter) has made or solicited any political contribution to a state or local
official in excess of $250 per candidate per year in the jurisdiction in which
CONSULTANT has been retained to work on behalf of COMPANY pursuant to this
Agreement.
18. ASSIGNMENT: CONSULTANT shall not assign this Agreement or any interest
herein nor delegate any obligation hereunder without the prior written
consent of COMPANY.
19. NOTICES: All notices, consents and demands hereunder shall be in writing
and shall be personally delivered or sent by certified or registered mail,
return receipt requested, addresses to the other party at its address ser
forth in this Agreement, and shall be deemed given upon receipt. Notices
to COMPANY shall be addresses to the attention of one of the COMPANY
employees listed in Exhibit 1 and a copy thereof shall be addresses Attn:
Legal Dept., Technology Unit.
20. COMPLETE AGREEMENT: This agreement supersedes all prior oral or written
agreements and understandings between the parties, constitutes the entire
agreement between the parties, and cannot be changed unless mutually
agreed upon in writing by both parties.
21. ENFORCEABILITY: In the event any provision of this Agreement is found to
be legally unenforceable, such unenforceability shall not prevent the
enforcement of any other provision.
22. NO WAIVER: The failure by either party to insist upon strict performance
of any of the provisions contained in this Agreement on any occasions
shall not be deemed a waiver of its rights under that or any other
provisions hereof.
23. GOVERNING LAW: This Agreement shall be governed by, and constituted in
accordance with, the laws of the State of New York, without regard to
choice of law rules.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed
as of the date first written above.
CONSULTANT XXXXXX XXXXXXX & CO.
INCORPORATED
By: Xxxxx Xxxxxxx By: Xxxxxxx X. Xxxx
Title: Senior Vice President Title: Managing Director
