Exhibnit 10.4
CONSULTING SERVICES AGREEMENT
(TERMS AND CONDITIONS)
This is a CONSULTING AGREEMENT (this "Agreement") between The Bluebook
International, Inc. ("Customer") and G. A. Xxxxxxxx ("Consultant") and consists
of these Terms and Conditions and all Attachments hereto and Schedules thereto
that are executed by Customer and Consultant from time to time.
Customer and Consultant agree as follows:
Section One
STATEMENT OF WORK
1.1 Consultant agrees to provide consulting services to Customer (referred to
in this Agreement as "Consultant's Services") as described in one or more
Attachments hereto titled STATEMENT OF WORK. The Statement of Work will
include those items, if any, described in the Attachment as "Deliverables,"
that Consultant is required to deliver to Customer. All Statements of Work
shall be consecutively numbered as Attachment X-0, X-0, X-0, and so forth.
All properly executed Statements of Work constitute a material part of this
Agreement and are incorporated by reference into this Agreement.
1.2 To enable Consultant to perform Consultant's Services, Customer shall give
Consultant local and remote access to Customer's computer systems, staff
and resources as necessary for Consultant to perform Consultant's Services,
Customer shall obtain authorization for Consultant's local and remote
access to any third party computer systems necessary to perform
Consultant's Services, and Customer shall timely perform the tasks
described as "Customer's Responsibilities," if any, in the Attachment
hereto titled Statement of Work.
1.3 Consultant shall provide and make available to Customer such resources as
shall be necessary to perform the Consultant's Services.
1.4 Customer agrees to provide working space and facilities, and any other
services and materials Consultant or its personnel may reasonably request
in order to perform the work assigned to them. All work shall be performed
at Customer's facilities unless otherwise mutually agreed and shall be
performed in a workmanlike and professional manner by employees of
Consultant having a level of skill in the area commensurate with the
requirements of the scope of work to be performed. Consultant shall make
sure its employees at all times observe security and safety policies of
Customer.
1.5 Consultant will try to accommodate work Schedule requests to the extent
possible. Should any personnel of Consultant be unable to perform any of
Consultant's Services because of illness, resignation, or other causes
beyond Consultant's reasonable control, Consultant will attempt to replace
such employee within a reasonable time, but Consultant shall not be liable
for delays resulting from factors beyond its control.
1.6 Customer will advise Consultant of the individuals to whom Consultant's
personnel will report for purposes of day-to-day work assignments. Customer
and Consultant shall develop appropriate administrative procedures for
coordinating with Consultant's personnel. Customer shall periodically
prepare an evaluation of the performance of Consultant's personnel. Should
Customer not be satisfied with the
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performance of one or more of Consultant's personnel, Customer may request,
on reasonable notice, that Consultant terminate their assignment to
Customer's work as set forth under Section Two (2.1) hereafter. Consultant
shall use all reasonable efforts to promptly replace such employee(s) with
substitute employee(s) having appropriate skills and training.
1.7 Consultant may subcontract all or any portion of Consultant's Services,
provided that any subcontractors are bound by confidentiality, non-use and
non-circumvention agreements or undertakings respecting the subject matter
of Sections Five and Six hereunder and Consultant's obligations thereunder
as and to the same extent as Consultant.
Section Two
TERM AND TERMINATION
2.1 This Agreement shall commence on the effective date of its execution, and
unless modified by mutual agreement of the parties or terminated earlier
pursuant to the terms of this Agreement, shall remain in effect until
terminated by either Customer or Consultant upon two (2) weeks written
notice.
2.2 Upon termination of this Agreement for any reason, Consultant shall
promptly return to Customer all copies of any Customer Confidential
Information (as defined in Section 6.2). Consultant shall also furnish to
Customer all work in progress or portions thereof, including all incomplete
work, subject to provisions of Section Five.
2.3 Within thirty (30) days after termination of this Agreement for any reason,
Consultant shall submit to Customer an itemized invoice for any fees or
expenses theretofore accrued under this Agreement. Customer, upon payment
of accrued amounts so invoiced, shall have no further liability or
obligation to Consultant whatsoever for any further fees, expenses, or
other payment.
2.4 Sections 2.3, 5, 6, 7, 8 and 9 shall survive the termination of this
Agreement.
Section Three
FEES, EXPENSES, AND PAYMENT
3.1 In consideration of the Consultant's Services to be performed, Customer
shall pay Consultant fees according to the rates set forth in Schedules to
the applicable Statements of Work, titled Schedule of Fees.
3.2 The fees and charges for any follow-on work not provided for in the
Schedule of Fees shall be performed at Consultant's then-current rates for
such work.
3.3 Customer shall pay the amounts agreed to herein upon receipt of invoices
which shall be sent by the Consultant. Customer will be invoiced bi-weekly
and shall remit invoice amounts within fifteen (15) days of receipt of
same.
3.4 Unless otherwise provided in the Schedule of Fees, Consultant maintains the
right to adjust fees and charges as necessary to reflect current fair
market rates. Such adjustments will be communicated to Customer and agreed
upon by both parties before adjusted fees and/or charges thereunder are
incurred.
Section Four
TREATMENT OF PERSONNEL
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4.1 The parties acknowledge that Consultant is an independent contractor and
that nothing herein shall create a partnership, joint venture, agency or
employer-employee relationship between them. As neither Consultant nor its
personnel are Customer's employees, Consultant shall bear sole
responsibility for payment of compensation to its personnel. Consultant
shall pay and report, for all personnel assigned to Customer's work,
federal and state income tax withholding, social security taxes, and
unemployment insurance applicable to such personnel as employees of
Consultant. Consultant shall bear sole responsibility for any health or
disability insurance, retirement benefits, or other welfare or pension
benefits, if any, to which such personnel may be entitled. Consultant
agrees to defend, indemnify, and hold harmless Customer, its officers,
directors, employees, and agents of Customer's benefit plans from and
against any claims, liabilities, or expenses relating to such benefits,
provided that Customer shall promptly notify Consultant of each such claim
when and as it comes to Customer's attention. Customer shall cooperate with
Consultant in the defense and resolution of such claim and Customer shall
not settle or compromise any such claim without Consultant's prior written
consent, such consent not to be unreasonably withheld.
4.2 Notwithstanding any other worker's compensation or insurance policies
maintained by Customer; Consultant shall procure and maintain workers'
compensation coverage sufficient to meet the statutory requirements of
every state where Consultant's personnel assigned to Customer's work are
located.
Section Five
INTELLECTUAL PROPERTY RIGHTS
5.1 As between Customer and Consultant, except as set forth below in this
Section 5, all right, title, and interest in and to the progress, systems,
data, or materials used or produced by Consultant in the performance of the
services called for in this Agreement shall remain or become the property
of Customer.
5.2 All right, title, and interest in and to all Deliverables, including all
rights in copyrights or other intellectual property rights pertaining
thereto, shall be held by Customer, and all Deliverables shall, to the
extent possible, be considered works made by Consultant for hire for the
benefit of Customer. Consultant shall xxxx all Deliverables with Customer's
copyright or other proprietary notice as directed by Customer and shall
take all actions deemed necessary by Customer to perfect Customer's rights
therein. In the event that the Deliverables cannot constitute work made by
Consultant for hire for the benefit of Customer under applicable law, or in
the event that Consultant should otherwise retain any rights to any
Deliverables, Consultant agrees to assign, and upon creation thereof
automatically assigns, all right, title, and interest in and to such
Deliverables to Customer, without further consideration. Consultant agrees
to execute any documents of assignment or registration of copyright
requested by Customer respecting any and all Deliverables.
Section Six
CONFIDENTIAL INFORMATION
6.1 Consultant and Customer acknowledge that in the course of the performance
of Consultant's Services each party may acquire Confidential Information
belonging to the other, much of which has been developed at great expense
and with considerable effort of skilled professionals. Consultant and
Customer further acknowledge that the
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Deliverables will of necessity incorporate such Confidential Information.
The parties agree to hold the Confidential Information of the other in
strictest confidence and not to copy, reproduce, sell, assign, license,
market, transfer, give or otherwise disclose of it to employees and
subcontractors (other than as necessary for performance of the Consultant's
Services or Customer Responsibilities) or to third parties, or to use such
information for any purposes whatsoever except as necessary for performance
of the Consultant's Services or Customer Responsibilities, without the
express written permission of the other party, and to advise each of their
employees, agents and representatives of their obligations to keep such
information confidential. The parties shall use reasonable efforts to
advise each other immediately in the event that either learns or has reason
to believe that any person who has had access to Confidential Information
has violated or intends to violate the terms of this Agreement, and will
reasonably cooperate in seeking injunctive relief against any such person.
6.2 The term "Confidential Information" means any data, information, design,
process, procedure, formula, or improvement that a party deems to be
proprietary and confidential and which either is commercially valuable or
is specifically designated by such party as confidential, but does not
include information which is (i) generally known to non-parties active in
the relevant art, business or science, (ii) information which is easily
ascertainable by non-parties of ordinary skill in the relevant art,
business or science, and (iii) information that has been disclosed by a
third party whose disclosure did not violate an obligation of
non-disclosure binding on such third party.
Section Seven
WARRANTIES AND LIMITATION OF LIABILITY
7.1 Consultant warrants that Consultant's Work Product and its use by Customer
as provided herein will not violate the Intellectual Property Rights of any
third party.
7.2 Consultant further warrants that Consultant's Services will be performed
and Deliverables prepared in a workmanlike manner and will conform to the
requirements specified in the Attachment hereto titled Statement of Work
and any Schedules thereto.
7.3 THE WARRANTIES IN SECTIONS 7.1 AND 7.2 ABOVE ARE THE ONLY WARRANTIES MADE
BY CONSULTANT. CONSULTANT EXPRESSLY DISCLAIMS, AND CUSTOMER HEREBY
EXPRESSLY WAIVES, ALL EXPRESS WARRANTIES AND ALL WARRANTIES, DUTIES AND
OBLIGATIONS IMPLIED IN LAW, INCLUDING WARRANTIES OF MERCHANTABILITY AND
FITNESS FOR A PARTICULAR PURPOSE. CONSULTANT DOES NOT WARRANT THAT
CONSULTANT'S WORK PRODUCT, INCLUDING DELIVERABLES, WILL MEET CUSTOMER'S
REQUIREMENTS OR THAT THE OPERATION OF THE CUSTOMER'S COMPUTER SYSTEMS OR
ANY SOFTWARE OR SOFTWARE MODIFICATIONS INCLUDED IN THE DELIVERABLES WILL BE
UNINTERRUPTED OR ERROR-FREE.
7.4 This Section applies if the Attachment hereto titled Statement of Work
describes the identification of security and privacy issues as being
included in Consultant's Services. Customer acknowledges that Consultant's
Services are subject to a number of factors beyond the control of
Consultant, such as the age, complexity and
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uniqueness of the Customer Systems, the compatibility of the assessment
tools to be used by Consultant with the Customer Systems, the development
of new technology and the interaction of the Customer Systems with third
party software. Therefore, Consultant does not warrant that Consultant's
Services will identify or isolate all potential security or privacy issues
in the Customer Systems, or prescribe or provide a corrective procedure in
every case that is identified or isolated. Customer also acknowledges that
Consultant's Evaluation Services are based on assessments of the Customer
Systems, which assessments may be based on information provided by, or
developed by, a third party or may be based on outdated information, or
otherwise by their nature may not be complete, current or accurate, and
Consultant's Remedial Services will be based on Customer's subjective
determination of its future needs, constraints and business plans, on
Customer's choice as to how Customer does or does not wish to address
security threats and privacy issues in the Customer Systems, and Customer's
choice of method to perform Remedial Services, all as communicated to
Consultant. Therefore Consultant does not warrant that Consultant's
Services or any Deliverables will remediate all security and privacy
issues.
7.5 EXCEPT WITH RESPECT TO SECTION 5 (INTELLECTUAL PROPERTY RIGHTS) OR SECTION
6 (CONFIDENTIAL INFORMATION) HEREOF, CONSULTANT SHALL HAVE NO LIABILITY
WITH RESPECT TO ITS OBLIGATIONS UNDER THIS AGREEMENT OR OTHERWISE FOR
CONSEQUENTIAL, EXEMPLARY, SPECIAL, INDIRECT, INCIDENTAL OR PUNITIVE DAMAGES
EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN ANY
EVENT, THE LIABILITY OF CONSULTANT TO CUSTOMER FOR ANY REASON AND UPON ANY
CAUSE OF ACTION OR CLAIM SHALL BE LIMITED TO THE AMOUNT PAID TO CONSULTANT
BY CUSTOMER HEREUNDER. THIS LIMITATION APPLIES TO ALL CAUSES OF ACTION OR
CLAIMS IN THE AGGREGATE, INCLUDING WITHOUT LIMITATION, BREACH OF CONTRACT,
BREACH OF WARRANTY, NEGLIGENCE, STRICT LIABILITY, MISREPRESENTATION, CLAIMS
FOR FAILURE TO EXERCISE DUE CARE IN THE PERFORMANCE OF SERVICES HEREUNDER
AND OTHER TORTS. FURTHER, NO CAUSE OF ACTION WHICH ACCRUED MORE THAN TWO
(2) YEARS PRIOR TO THE FILING OF A SUIT ALLEGING SUCH CAUSE OF ACTION MAY
BE ASSERTED AGAINST CONSULTANT. BOTH PARTIES UNDERSTAND AND AGREE THESE
LIMITATIONS AND EXCLUSIONS REPRESENT THE PARTIES AGREEMENT AS TO THE
ALLOCATION OF RISK BETWEEN THE PARTIES IN CONNECTION WITH CONSULTANT'S
OBLIGATIONS UNDER THIS AGREEMENT. THE FEES PAYABLE TO CONSULTANT HEREUNDER
REFLECT, AND ARE SET IN RELIANCE UPON, THE ALLOCATION OF RISK AND THE
EXCLUSION OF CONSEQUENTIAL DAMAGES AND LIMITATIONS OF LIABILITY HEREIN.
7.6 Consultant shall not be liable for any delay or failure to carry out
services provided hereunder if such delay or failure is due to any cause
beyond the control of Consultant, other governmental directives, labor
disputes, acts of God, acts of third-party vendors, carriers or suppliers,
third-party mechanical or other equipment breakdowns, fire, explosions,
fiber optic cable cuts, storm, or other similar events.
Section Eight
MISCELLANEOUS
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8.1 This agreement shall be governed and construed in all respects in
accordance with the laws of the State of Missouri as they apply to a
contract entered into and performed in that State.
8.2 All notices required or permitted hereunder shall be given in writing
addressed to the respective parties as set forth herein, unless another
address shall have been designated, and shall be delivered by hand or by
registered or certified mail.
8.3 This Agreement constitutes the entire agreement of the parties hereto and
supersedes all prior representations, proposals, discussions, and
communications, whether oral or in writing. This Agreement may be modified
only in writing and shall be enforceable in accordance with its terms when
signed by the party sought to be bound.
Section Nine
NON-SOLICITATION
9.1 Each of the parties hereto agrees that, while Consultant's Services are
being performed, and for a period of one hundred eighty (180) days
following the termination of this Agreement, neither party will, except
with the other party's prior written approval, solicit or offer employment
to the other party's employees.
Executed effective March 24, 2003.
G. A. XXXXXXXX The Bluebook Intl., Inc.
Xxxx Xxxxx Xxxx Xxxxxxxxxx
-------------------------------------------- --------------------------------------------
(Typed Name) (Typed Name)
/s/ Xxxx X. Xxxxx /s/ Xxxx Xxxxxxxxxx
-------------------------------------------- --------------------------------------------
(Signature) (Signature)
VP of Industry Solutions CEO/President
-------------------------------------------- --------------------------------------------
(Title) (Title)
3-27-03 3-26-03
-------------------------------------------- --------------------------------------------
(Date) (Date)
-------------------------------------------- --------------------------------------------
Notice Address: Notice Address:
Xxxx Xxxxx Xxxx Xxxxxxxxxx
G. A. Xxxxxxxx The Bluebook International, Inc.
00 Xxxx Xxxx Xxxxx, Xxxxx 000 00000 Xxxx Xxxxxxx, Xxx. 000
Xx. Xxxxx, Xxxxxxxx 00000-0000 Xxxx Xxxxxx, XX 00000
Tel#: 000-000-0000 Tel#: 000-000-0000
Fax#: 000-000-0000 Fax#: 000-000-0000
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CONSULTING SERVICES AGREEMENT
ATTACHMENT A-
Statement of Work
This is an Attachment to the Terms and Conditions of the Consulting Services
Agreement between The Bluebook International, Inc. ("Customer") and G. A.
Xxxxxxxx ("Consultant") effective March 24, 2003.
Consultant will provide to Customer the following Consultant's Services:
1. Configure and implement the Customer .NET application within Consultant
development environment. The Consultant will spend time becoming familiar with
the architecture, database structure, and functionality.
2. Once the Consultant has successfully configured the .NET application and
can successfully operate the application behind the Consultant's firewall, the
application will be made available to Internet users outside the Consultant's
firewall.
3. The .NET application will be available from the Internet 24 hours per
day. Please note: Internet hosting is not the Consultant's primary business
activity. Even though the Consultant does not expect problems to surface, the
Consultant is unable to make guarantees with regard to 100% uptime. Based on
the Consultant's experience in similar situations, when problems do occur the
Consultant has been able to correct the situation within two to four hours.
4. The Consultant is available to provide .NET programming expertise make
modifications and enhancements to the application, if so directed by the
Customer.
5. The Consultant is available to serve as an expert .NET resource for
Customer in pursuit of new business opportunities. These activities could
include technical sales support, systems integration, or custom .NET application
development.
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Executed effective March 24, 2003.
G. A. XXXXXXXX THE BLUEBOOK INTL., INC.
Xxxx Xxxxx
-------------------------------------------- --------------------------------------------
(Typed Name) (Typed Name)
/s/ Xxxx X. Xxxxx
-------------------------------------------- --------------------------------------------
(Signature) (Signature)
VP of Industry Solutions
-------------------------------------------- --------------------------------------------
(Title) (Title)
3-27-2003
-------------------------------------------- --------------------------------------------
(Date) (Date)
-------------------------------------------- --------------------------------------------
Notice Address: Notice Address:
Xxxx Xxxxx Xxxx Xxxxxxxxxx
G. A. Xxxxxxxx The Bluebook International, Inc.
00 Xxxx Xxxx Xxxxx, Xxxxx 000 00000 Xxxx Xxxxxxx, Xxx. 000
Xx. Xxxxx, Xxxxxxxx 00000-0000 Xxxx Xxxxxx, XX 00000
Tel#: 000-000-0000 Tel#: 000-000-0000
Fax#: 000-000-0000 Fax#: 000-000-0000
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Schedule A to Statement of Work
Schedule of Fees
This is a Schedule to Attachment A-1 to the Terms and Conditions of the
Consulting Services Agreement between The Bluebook International, Inc.
("Customer") and G. A. Xxxxxxxx ("Consultant") effective March 24, 2003.
Consultant shall provide the services described in the above referenced
Statement of Work, beginning March 24, 2003, at the rates listed in
the table below.
---------------------------------------------------------------------
CONSULTANT RATE
---------------------------------------------------------------------
---------------------------------------------------------------------
Xxxxxx.Xxx Engineer $ 125
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Internet Systems Engineer $ 125
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G. A. XXXXXXXX THE BLUEBOOK INTL., INC.
Xxxx Xxxxx Xxxxx X. Xxxxx
-------------------------------------------- --------------------------------------------
(Typed Name) (Typed Name)
/s/ Xxxx X. Xxxxx /s/ Xxxxx X. Xxxxx
-------------------------------------------- --------------------------------------------
(Signature) (Signature)
VP of Industry Solutions Executive Vice President
-------------------------------------------- --------------------------------------------
(Title) (Title)
3-27-2003 3-27-2003
-------------------------------------------- --------------------------------------------
(Date) (Date)
-------------------------------------------- --------------------------------------------
Notice Address: Notice Address:
Xxxx Xxxxx Xxxx Xxxxxxxxxx
G. A. Xxxxxxxx The Bluebook International, Inc.
00 Xxxx Xxxx Xxxxx, Xxxxx 000 00000 Xxxx Xxxxxxx, Xxx. 000
Xx. Xxxxx, Xxxxxxxx 00000-0000 Xxxx Xxxxxx, XX 00000
Tel#: 000-000-0000 Tel#: 000-000-0000
Fax#: 000-000-0000 Fax#: 000-000-0000
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