SUBCONTRACT-AGREEMENT
Genisys Information Systems, Inc.
Air Products Engagement
This agreement is entered into as of December 10,1999, by and between Xxxxxx
Xxxxxxxx LLP, with offices at 000 Xxxxxxxxx, Xxxxx 0000, Xxxxxxx, Xxxxx ("AA")
and GENISYS Information Systems, with offices at 000 Xxxxx Xxxx Xxxx, Xxxxx
000, Xxxxxxx, Xxxxx ("Subcontractor").
WHEREAS, AA has been contracted by Air Products, Inc. (the "Client") for AA to
provide certain consulting and project management services (the "Services");
and
WHEREAS, the parties desire to define the terms and conditions on which
Subcontractor shall act as a subcontractor to AA in connection with the
Services.
ARTICLE 1- RELATIONSHIP OF THE PARTIES
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1.1 AA shall act as prime contractor and the Subcontractor shall act as
a first-tier subcontractor to AA under the Contract.
1.2 The Subcontractor may not assign this Agreement or subcontract any
portion of the work to be performed hereunder to any other person without the
express written approval of AA.
ARTICLE 2 - RESPONSIBILITIES OF THE PARTIES; SCOPE OF WORK
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2.1 The Subcontractor shall coordinate and to work with AA, at the
direction of AA, to ensure an appropriate interaction between the work of AA
and the Subcontractor.
2.2 Subcontractor shall provide to AA the level of effort set forth in
the document entitled "Subcontractor Scope of Work," attached as Annex A
hereto and incorporated herein by reference. Title to all work, work in
process and deliverable items shall be in the name of AA,
except as herein provided. The work will be done on a labor hour basis, with a
total fee not to exceed $145;435 plus allowable, reimbursable expenses.
Revisions or changes to the Subcontractor's scope of work which necessitate
additional work will be mutually agreed to and done on a time and materials
basis plus allowable expenses.
2.3 Any personnel assignment by the Subcontractor shall be subject to
prior approval of AA.
2.4 Xxxxx Xxxxxxxx shall be considered key personnel and shall not be
removed from the work under this Agreement without AA's prior approval.
Subcontractor, at AA's request, shall remove from the work any personnel not
performing satisfactorily.
2.5 AA's Services Manager shall be Xxxxx X. Xxxxxx. The Subcontractor
personnel shall report to and work under the direction of the AA Services
Manager or his designee.
2.6 AA will have final decision-making authority on all Services
matters. Decisions in areas related to or impacting the Subcontractor will be
made in consultation with the appropriate
Subcontractor management personnel.
2.7 (a) Subcontractor personnel will participate in Services meetings
and discussions as required by the AA Services Manager or when the meeting or
discussion addresses areas involving the Subcontractor's work hereunder.
(b) Subcontractor will discuss all issues, recommendations and
decisions related to Services performance, status, or any major issue
affecting the Services with the AA Services Manager or his designee prior to
joint AA and Subcontractor discussion with Client
ARTICLE 3 - WARRANTIES
----------------------
3.1 Subcontractor warrants its deliverable items, services and other
work to AA in the same manner, to the same extent and for the same period of
time as AA warrants the same to the Client under the Contract. At all times
during the performance of the services of Subcontractor, AA shall have the
right to inspect the work performed by Subcontractor hereunder.
3.2 Subcontractor warrants that no work product delivered under this
Agreement will infringe any patent, trademark, copyright or any other
proprietary right issued or honored in the United States.
ARTICLE 4 - PAYMENT
-------------------
Pricing terms applicable to this Subcontract and terms of payment to
Subcontractor hereunder are provided in Annex B, incorporated herein by
reference.
ARTICLE 5 - PROPRIETARY INFORMATION
-----------------------------------
5.1 The parties anticipate that it may be necessary to provide access to
confidential and/or proprietary information to each other pursuant to this
Agreement in preparation of the Proposal and/or performance of Services
("Proprietary Information"). Proprietary Information shall be clearly
identified or labeled as such by the disclosing party at the time of
disclosure.
Where concurrent identification of Proprietary Information is not
feasible, the disclosing party shall provide such identification as promptly
thereafter as possible.
5.2 Each party shall protect the confidentiality of the Proprietary
Information in the same manner as it protects its own proprietary information
of like kind; provided that, with respect to the handling of any Proprietary
Information of the Client, each party will at all times comply with applicable
professional standards to which AA is subject. Disclosures of Proprietary
Information shall be restricted to those individuals who are directly
participating in preparation of the Proposal and other work related to the
Services. The parties shall return all Proprietary Information of the other
upon the earlier of a request by the disclosing party or upon termination of
this Agreement.
5.3 Neither party shall reproduce, disclose or use Proprietary
Information except as follows:
a. Proprietary Information furnished by AA may be used by the
Subcontractor in performing its obligations under this
Agreement;
b. Proprietary Information furnished by the Subcontractor may be
used by AA in performing its obligations under the Contract;
c. Proprietary Information furnished by AA or the Subcontractor
may be used in accordance with written authorization received
from the disclosing party.
d. To respond to a subpoena or other validly issued administrative
or judicial process.
5.4 The limitations on reproduction, disclosure, or use of Proprietary
Information shall not apply to, and neither party shall be liable for,
reproduction, disclosure, or use of Proprietary Information of the other
where:
a. Prior to the receipt under this Agreement, the information was
developed independently by the party receiving it, or was
lawfully received from other sources without an obligation of
confidence, including the Client; or
b. Subsequent to the receipt under this Agreement: (i) the
information is published or otherwise disclosed to others by
the disclosing party without restriction, (ii) the information
has been lawfully obtained by the party receiving it from other
sources, (iii) the information otherwise comes within the
public knowledge or becomes generally known to the public
without breach of this Agreement, or (iv) the information is
independently developed by the party receiving it.
5.5 Neither the execution of the Agreement, nor the furnishing of any
Proprietary Information by either party shall be construed as granting to the
other party expressly, by implication, by estoppel or otherwise, any license
under any invention, patent, trademark, copyright or other proprietary right
now or hereafter owned or controlled by the party furnishing same.
5.6 The provisions of this Article V shall survive termination of this
Agreement.
ARTICLE 6 - OWNERSHIP
---------------------
6.1 Any ownership rights to work product created by Subcontractor
hereunder and conferred upon either Client or AA by applicable Contract terms
incorporated herein shall be owned by the Client or AA, as applicable. Any
ownership rights to work product created by Subcontractor hereunder and not
conferred upon either Client or AA by applicable Contract terms incorporated
herein shall, as between AA and Subcontractor, be owned by Subcontractor.
ARTICLE 7 - TERMINATION
-----------------------
7.1 This Agreement shall terminate automatically if Client disapproves
the selection of Subcontractor or disqualifies Subcontractor for any reason.
7.2 AA may terminate this Agreement:
a. for its convenience, upon written notice to Subcontractor
according to the same terms as the Contract with Client; or
b. upon termination of the Contract by Client for any reason.
In the event of such termination, AA shall pay Subcontractor for
satisfactory services performed and expenses incurred up to and including the
date of such termination, subject to Article 4 above.
7.3 AA may terminate this Agreement in the event Subcontractor breaches
any of its obligations hereunder and does not cure such breach within fifteen
(15) days of receipt of notice from AA.
7.4 Upon termination of this Agreement for any reason, Subcontractor
shall deliver to AA all work in process, drafts, and other materials developed
in connection with the Services. Upon termination pursuant to Articles 7.1 or
7.3 above, Subcontractor further shall deliver to AA any other materials,
documentation or information necessary for AA to complete, or have completed,
the work to be performed hereunder by Subcontractor.
ARTICLE 8 - COMPLIANCE WITH LAWS
--------------------------------
Subcontractor shall comply with all applicable Federal, state, county,
and local laws, ordinances, regulations, and codes in the performance herewith
including the procurement of any necessary permits and licenses.
ARTICLE 9 - INSURANCE
---------------------
The Subcontractor will provide the same insurance coverages required to
be maintained by AA under the Contract.
ARTICLE 10 - INDEMNITY
----------------------
Subcontractor shall indemnify and save harmless AA, its partners, agents,
and employees from all liability or expense resulting from (a) bodily injury
to any person (including injury resulting in death) or damage to property
arising out of the performance of this Agreement, providing such injury or
property damage is due or claimed to be due to the negligence of the
Subcontractor, its employees, agents, or subcontractors and occurs without
negligence on the part of AA or any of its employees, (b) any action taken by
or on behalf of Subcontractor which is not permitted by or pursuant to the
terms of this Agreement, (c) any act or omission constituting negligence or
willful misconduct or breach of fiduciary duty by any officer, director, agent
or employee of Subcontractor in connection with Subcontractor's performance
under this Agreement, or (d) claims by any of Subcontractor's employees or
former employees.
ARTICLE 11 - EXCUSABLE DELAY
----------------------------
Neither party shall be liable for any delay or failure in performance
hereunder arising out of causes beyond its control without its negligence or
fault. Subcontractor, in the event of such a cause, shall notify AA
immediately in writing of its delay or failure in performance, describing the
cause and its effect upon Subcontractor's performance and the anticipated
duration of the inability to perform.
ARTICLE 12 - GOVERNING LAW
--------------------------
All questions arising under or in connection with this Subcontract shall
be governed and determined by the law applicable to the Contract; provided,
however; that where the law applicable to the Contract does not provide the
rules for determining the particular question, the law of the State of Texas
shall apply.
ARTICLE 13 - INDEPENDENT CONTRACTOR
-----------------------------------
It is understood that in connection herewith, Subcontractor shall be
acting as an independent contractor. The partners, employees, officers and
agents of one party, in the performance of this Agreement, shall act only in
the capacity of representatives of that party and not as employees, officers
or agents of the other party and will not be deemed for any purpose to be
employees of the other. Subcontractor assumes full responsibility for the
actions of its personnel while they are performing services pursuant to this
Agreement and shall be solely responsible for their supervision, daily
direction and control, payment of salary (including withholding of income
taxes and social security), workers compensation, disability benefits and the
like. Neither party shall commit, nor be authorized to commit or bind, the
other party in any manner.
ARTICLE 14 - FURTHER ASSURANCES
-------------------------------
Subcontractor shall execute such further documents as AA and/or the
Client may reasonably require in connection with the award or performance of
this Subcontract.
ARTICLE 15 - DISPUTES
---------------------
Subcontractor shall be bound to AA to the same extent that AA is bound to
the Client, under the terms of the Contract. Subcontractor shall seek recourse
solely against AA, and not against the Client in any of its capacities, for
any claim arising under this Agreement.
ARTICLE 16 - PRIME CONTRACT REQUIREMENTS APPLICABLE
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Notwithstanding any other provision to the contrary, all work and/or
deliverable items shall be produced and performed strictly, in accordance with
the Contract, incorporated herein by reference and attached hereto as Annex C.
Subcontractor shall take all reasonable and necessary steps to enable AA to
comply with the Contract. As incorporated into this Agreement, any reference
to Client or AA (however defined in the Contract), respectively, shall be
deemed to mean AA and Subcontractor, respectively, for purposes of this flow
down provision. In determining where such substitutions are or are not
required by the context of the particular clause or provision in question, the
interpretation will be adopted which best preserves the parties' mutual
intention that their respective rights and obligations as between each other
are to be coextensive with and equivalent to the rights and obligations
existing as between Client and AA. If any Contract clause or other provision
incorporated herein refers specifically to another provision as governing
subcontract arrangements under the Contract, then such other provision also is
incorporated herein by reference and Subcontractor and all approved lower-tier
subcontractors shall be required to comply with its terms.
ARTICLE 17 - TERM
-----------------
The term of this Subcontract shall be from the date of award thereof
through May 31, 2000, unless sooner terminated pursuant to the terms hereof.
ARTICLE 18 - NOTICES
--------------------
Any notices required to be delivered by one party or another under or in
connection with this Subcontract shall be deemed sufficiently given if
actually received or if sent by certified mail, return receipt requested, to
the attention of the individual signing this Subcontract for the party to
which the notice is directed; at the address indicated below:
If to AA: Xxxxxx Xxxxxxxx LLP
000 Xxxxxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxx 00000
Attn: Xxxxx X. Xxxxxx
If to Subcontractor: 000 Xxxxx Xxxx Xxxx
Xxxxx 000
Xxxxxxx, Xxxxx 00000
Attn: Xxxxx Xxxxxxxx
ARTICLE 19 - SURVIVAL
---------------------
The following Articles shall survive the termination or expiration of
this Agreement: Articles 5, 6,10 and 16.
ARTICLE 20 - ENTIRE DOCUMENT
----------------------------
This Agreement constitutes the entire agreement between the parties with
respect to the subject matter and supersedes any previous understandings,
representations, commitments or agreements, oral or written. No provision of
this Agreement may be waived except by written stipulation signed by the party
to be charged, nor may this Agreement be amended except in writing executed by
both parties. If any provision, or portion thereof, of this Agreement is, or
becomes, invalid under any applicable statute or rule of law, it is to be
deemed stricken and the rest of this Agreement shall remain in full force and
effect.
XXXXXX XXXXXXXX LLP GENISYS Information Systems
/s/ Xxxxx Xxxxxxxx
------------------------------- ------------------------------------
Name: Xxxxxx X. Xxxxxx Name: Xxxxx Xxxxxxxx
Title: Partner Title: President and Chief Operating
Officer
Date: Date: 01/27/00 effective 12/10/99
-------------------------- --------------------------------
ANNEX A
SUBCONTRACTOR'S STATEMENT OF WORK
Subcontractor shall provide professional time and effort in support of AA
to fulfill the requirements of the Contract. During the course of the
engagement it is anticipated and encouraged that the personnel working on the
engagement be identified as members of the AA project management team and not
as subcontractors or employees of another organization. More specifically,
Subcontractor will:
1. Provide an experienced project manager to oversee the development of
a Project Management Office and to develop Client's Masterplan.
2. Provide technical support in designing, developing, creating and
implementing a project management system for Client, including the
processes, procedures, information flows, reporting systems and
technology support necessary. Subcontractor's efforts will also
include assistance in system documentation and training Client
personnel.
3. Provide technical planning, scheduling and project management
software training to AA or to Client personnel as requested.
4. Provide proprietary software to supplement the overall project
management system put in place by Client. Subcontractor will work
with AA to identify required software, and such software will not be
installed without prior approval by AA and Client. All software so
provided will be licensed to Client by Subcontractor, including all
normal terms and conditions for maintenance and support of such
software as Subcontractor provides to its other clients.
5. Provide other general project management consulting services as may
be required. Such additional services, and any additional personnel
required, will be mutually agreed to and documented by letter, e-
mail or other written means.
ANNEX B
PAYMENT TERMS AND CONDITIONS
Subcontractor will be paid at hourly rates equal to 85 percent of AA's
allowable billing rates to Client for personnel of comparable experience and
billing level as AA. The rates Subcontractor will use are as follows:
Genisys'
Equivalent AA Client Billable Chargeable
Labor Category Hourly Rate Rate
-------------- ---------------- --------------
Xxxxxxxx/Xxxxxxx/
Winchester Senior Manager $260 $221
Xxxx Xxxxxx
(equivalent) Experienced Manager $232 $197
X. Xxxxxx, X. XxXxxxxx
(equivalent) Manager $200 $170
Planner/Scheduler Experienced Consultant $168 $143
Staff Consultant II $140 $119
Subcontractor will be reimbursed for all necessary, allowable travel and
per diem expenses incurred while providing professional services per this
agreement, provided that such travel and per diem expenses are (1) allowable
under the Contract; (2) authorized or approved by the AA Services Manager or
designee; (3) are properly documented with receipts or other acceptable means;
and (4) do not exceed amounts allowable under the Client's General Travel
Regulations in effect at the time such expenses are incurred.
Subcontractor will invoice AA bi-monthly for amounts earned. Invoices
will indicate the number of hours worked and milestones accomplished plus
detail of expenses incurred. Proper support for time and expenses will be
provided to AA as required by the Contract, and records will be maintained for
a minimum of three (3) years. Proper support for time and expenses will be
submitted with each invoice.
AA will process invoices in a timely manner and will make every effort to
pay Genisys' invoices within sixty (60) days of approval.
Should AA or Client dispute any items on an invoice, AA will deduct the
amount of said items from the total and will make payment of the remainder as
set forth above. The amounts and reasons for such disputed items will be
promptly documented to Subcontractor. Disputed items that are subsequently
justified to AA's and/or Client's satisfaction will be included in the next
monthly payment.
Except as provided herein, it is understood that any and all costs and
expenses incurred by either party in connection with the Services will be home
by that Party.
