CONSULTING AGREEMENT - AGREEMENT # VR04296
This is an Agreement between ▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ LTD. (you), an independent
consultant and IBM Canada Ltd (IBM).
1. DEFINITIONS OF SERVICES AND DELIVERABLES
You shall provide Services to IBM as follows: Provide advise and counsel
to IBM regarding scope of services outlined in Schedule A'. Your Services
may
involve IBM's Related Companies. "Related Companies", as to IBM, shall mean
International Business Machines Corporation (New York, U.S.A.) and any entity
other than IBM:
a. a majority of those voting shares or securities are; or
b. which does not have voting shares or securities, but a majority of
the ownership interest representing the right to make decisions for each
entity
is;
now or hereafter, owned or controlled, directly or indirectly, by
International
Business Machines Corporation, but such entity shall be deemed to be a Related
Company only so long as such ownership or control exists.
2. TERM OF SERVICE AND COMPENSATION
Your Services shall begin on February 10, 1997 and shall be completed by
April 31, 1997. As per Schedule A', IBM shall pay you a fee documented in
Schedule B' of this agreement for your Services, payable net 30 days of
receipt
of invoice.
If, for any reason beyond your control, including termination, death, or
inability to perform, you do not complete your Services, IBM shall pay you a
pro
rata share of the fee measured by days of service.
In addition, IBM shall reimburse you for your reasonable and actual
travel
and living expenses authorized in advance by IBM, for which you shall submit
monthly invoices to IBM with evidence of such expenses. Reimbursement will be
in amounts consistent with those paid by IBM to its employees.
3. CONFIDENTIAL INFORMATION
a. "Confidential Information" shall mean that information:
1) disclosed to or obtained by you in connection with, and during
the
term of, this Agreement, and
2) which relates to IBM's or RELATED COMPANIES' past, present or
future research, development or business activities.
It shall also mean all items prepared for or submitted to IBM in connection
with
Services performed under this Agreement, including drafts and associated
materials. The term "Confidential Information" shall not mean any information
which is previously known to you without obligation of confidence, or, without
breach of this Agreement, is publicly disclosed either prior or subsequent to
your receipt of such information or is rightfully received by you from a third
party without obligation or confidence.
b. For a period of 3 years from the date of disclosure, you agree to
hold all such Confidential Information in trust and confidence for IBM and not
to use such Confidential Information other than for the benefit of IBM. Except
as may be authorized by IBM in writing, for such period of time, you agree not
to disclose any such Confidential Information, by publication or otherwise, to
any person other than those persons whose services you require who have a need
to know such Confidential Information for purposes of carrying out the terms
of
this Agreement, and who agree in writing to be bound by, and comply with the
provisions of this Section 3.
c. Upon termination or expiration of this Agreement, you will return to
IBM all written or descriptive matter, including but not limited to drawings,
blueprints, descriptions or other papers, documents, tapes, or any other media
which contain any such Confidential Information. In the event of a loss of
any
item containing such Confidential Information, you shall promptly notify IBM
in
writing.
d. In providing services under this Agreement, you understand that IBM
does not wish to receive from you any information which may be considered
confidential and/or proprietary to you and/or to any third party. You
represent
and warrant that any information disclosed by you to IBM is not confidential
and/or proprietary to you and/or to any third party.
4. RIGHTS IN DATA
a. All of the items prepared for or submitted to IBM by you under this
Agreement shall belong exclusively to IBM. You hereby assign to IBM the
ownership of copyright in the aforesaid items and IBM shall have the right to
obtain and hold in its own name copyrights, registrations and similar
protection which may be available in the aforesaid items. You agree to give
IBM or its designees all assistance reasonable required to perfect such
rights.
b. To the extent that any pre-existing materials are contained in the
items, you grant to IBM an irrevocable, non-exclusive, worldwide, royalty-free
license to (1) use, execute, reproduce, display, perform, distribute
(internally
or externally) copies of, and prepare derivative works based upon such pre-
existing materials and derivative works thereof, and (2) authorize others to
donate any, some or all of the foregoing.
c. No license or right is granted to you either expressly or by
implication, estoppel or otherwise to publish, reproduce, prepare derivative
works based upon, distribute copies of, publicly display, or perform, any such
items, except pre-existing materials of yours, either during or after the term
of this Agreement.
5. INVENTIONS
a. "Invention" shall mean any idea, design, concept, technique,
invention, discovery or improvement, whether or not patentable, made solely or
jointly by you, and/or your employees, or jointly by you and/or your employees
with one or more employees of IBM and/or RELATED COMPANIES during the term of
this Agreement and in the performance of services hereunder, provided that
either
the conception or reduction to practice occurs during the term of this
Agreement
and in the performance of services hereunder. You shall promptly make a
complete
written disclosure to IBM of each Invention, specifically pointing out the
features or concepts which you believe to be new or different.
6. INVENTION RIGHTS
a. You hereby assign to IBM, its successors and assigns, any said
Invention together with the right to seek protection by obtaining patent
rights
therefor and to claim all rights of priority thereunder, and the same shall
become and remain IBM's property whether or not such protection is sought.
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b. You shall, upon IBM's request and at IBM's expense, cause patent
applications to be filed thereon, through solicitors designated by IBM, and
forthwith assign all such applications to IBM, its successors and assigns. You
shall give IBM and its solicitors all reasonable assistance in connection with
the preparation and prosecution of any such patent applications and shall
cause
to be executed all such assignments and other instruments and documents as IBM
may consider necessary or appropriate to carry out the intent of this Section.
c. To the extent that IBM has the right to do so, IBM hereby grants to
you an irrevocable, nonexclusive, nontransferable and fully paid-up license in
Canada under any said Inventions assigned to IBM pursuant to this Section
hereof,
and under any patents in Canada issuing thereon including reissues,
extensions,
divisions and continuations thereof provided, however, that such license is
not
applicable to any Inventions, industrial design applications or registrations
relating to appearance design.
d. Nothing contained in this Agreement shall be deemed to grant either
directly or indirectly or by implication, estoppel, or otherwise, any license
under any patents or patent applications arising out of any other inventions
of
either party.
7. GENERAL PROVISIONS
a. You warrant that you are and will remain free of any obligations and
restrictions that would interfere or be inconsistent with your satisfying your
obligations under this Agreement.
b. You shall do whatever is necessary to enable IBM to comply, and you
shall yourself comply, with all applicable laws.
c. You may not assign or subcontract part or all of your Services
without IBM's prior written approval.
d. You shall have an appropriate written agreement with your employees
and others whose services you use hereunder that will enable you to comply
with
this Agreement.
e. IBM may terminate this Agreement or your Services at any time upon
ten (10) days written notice.
f. You shall be solely responsible for complying with all tax and
employee protection laws.
g. This Agreement is our only agreement and supersedes all other
agreements relating to your Services. It may be amended only in writing.
h. You may not use any trademark or trade name of IBM or its Related
Companies or refer to this Agreement or your Services in connection with any
product, promotion, or publication, without IBM's prior written approval.
i. This Agreement shall be governed by the laws of the Province of
Ontario.
j. The rights and obligations of Sections 3, 4, 5 and 6, and paragraphs
8.h, 8.i shall survive and continue after any expiration or termination of
this
Agreement and shall bind you and your legal representatives, successors, heirs
and assigns until such rights and obligations expire in accordance with their
terms.
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k. Both parties consent to the valid execution of this Agreement via
facsimile.
If you agree with the above provisions, please sign, date and return to us the
enclosed copy of this Agreement.
Very truly yours,
IBM Canada Ltd.
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇
Date: March 3, 1997
AGREED TO:
▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ LTD.
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Date: February 28, 1997
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SCHEDULE A'
SCOPE OF SERVICES
PART 1 - NET COMMERCE PROJECT PARTICIPATION: DEVELOPING A RETAIL SOLUTION FOR
THE GENERAL BUSINESS MARKETPLACE
▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ will assist IBM in developing a complete solution for the
General Business marketplace as follows:
OUTLINE A COMPETITIVE WHOLE PRODUCT OFFERING
- Identify Competitive Solutions for the General Business market place.
- Provide an overview of competitive Whole Product solutions including
components
and pricing for "whole product" solutions on the market.
- Outline the components of a competitive "Whole Product" - Hardware,
Operating
Systems, Application Software, Services, and business relationships.
TOOLS FOR NEEDS ANALYSIS AND PROPOSAL WRITING
- Develop a template for identifying needs and requirements including skills,
team members, resources required by generic customers. In this step we will
help
identify specific resource requirements including, web site creation and
design,
web promotion and traffic creation, Internet service providers, partnering
strategies, remote maintenance and support, and content development;
- Provide a marketing considerations checklist to assist customers in
developing
a comprehensive and effective marketing plan for their Internet based retail
operations. Included in this will be a list of critical success factors and
suggestions on bow to get started with low risk;
- Work with IBM and its Business Partners to develop an implementation plan
and
timetable, including a delivery and fulfillment of various components;
- Provide a sample proposal document that can be used by IBM and Business
Partners in developing proposals for "Whole Product" solutions.
PARTICIPATE IN THE DEVELOPMENT OF A WORKING WHOLE PRODUCT SOLUTION
- Provide feedback on the structure of the IBM/Business Partner deal, services
performed, resources and partners required, and an evaluation of the cost
competitiveness of the final solution.
- Identify the scope of effort required to integrate the Net.commerce solution
with existing payment systems, visitor databases, and other backend systems.
Specifically detail the relationship, requirements and interface with banking
and payment clearing organizations.
- Outline the process required to connect to our Internet service provider and
identify and issues that IBM or its business partners should address.
- Assist ▇▇▇▇ ▇▇▇▇▇ or the designated IBM Project Manager in documenting the
overall process and project as well as provide feedback where required.
▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ will be responsible for providing direction as to content and
scope.
- Participate as a test site in the development of the first "complete
solution"
using this approach. During this participation we agree to work on a normal
commercial basis, however, we:
- recognize there will be potential delays in the implementation plan and
we are willing to accommodate reasonable revisions to scheduled dates.
Although
we had originally targeted an implementation date of January 31st, we agree to
a delayed implementation date with a revision in production date of no later
than April 7th, 1997;
- understand that the IBM Net Commerce solution is not fully ready for
market and we will be prepared to work with temporary solutions while the
overall
solution is being developed;
- understand that if there are significant changes (other than changes in
requirements by ▇▇▇▇▇▇▇▇▇▇▇.▇▇▇) to the design or solution that require rework
by ▇▇▇▇▇▇▇▇▇▇▇.▇▇▇, additional business partner or other services, IBM will be
responsible for these costs. This specifically excludes costs related to
changes
in requirements by ▇▇▇▇▇▇▇▇▇▇▇.▇▇▇. This is solely to protect ▇▇▇▇▇▇▇▇▇▇▇.▇▇▇
from changes in IBM's direction, product or business partner strategy that
cause
redundant expense or costs by ▇▇▇▇▇▇▇▇▇▇▇.▇▇▇; and,
- will assign a project manager (▇▇▇▇▇ ▇▇▇▇▇▇▇) to work with IBM and its
business partners during the implementation of this solution.
PROMOTE THE IBM NET.COMMERCE SOLUTION AND THE ▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ STORE
- Act as a positive reference site for the IBM Net Commerce solution at the
successful launch of the store. In addition, we both agree to participate in a
public relations campaign to promote this solution and reference site. Both
parties will provide reasonable time and effort for this promotional effort;
- Participate in IBM promotional efforts as appropriate. This may include
promotional advertising, business partner meetings, trade shows, etc. IBM
will
be responsible for any travel and out of pocket costs, unless otherwise
agreed.
PART 2 - INTERNET MARKETING METHODOLOGY
The Methodology is designed to define the appropriate Internet Marketing
strategy
for a company. ▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ will provide two licensees for the marketing
methodology. The first one is a one year license to IBM Canada to use the
existing health care industry version. The second is a five year license to a
generic version. As experience is gained with specific industries, however,
tailored versions can be developed by IBM. IBM is free to modify or customize
the actual materials to suit specific needs and to use the resulting
methodology
beyond the five year period.
▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ will conduct a 2-3 hour training session on this methodology,
which IBM is welcome to videotape and use in ongoing education sessions.
▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ also agrees to provide IBM or their customers methodology
training on a per diem basis or through scheduled or customized seminars.
METHODOLOGY OVERVIEW
Five Step Plan:
Step 1. Setting Objectives: This step lays the groundwork for IBM's specific
Internet initiatives. ▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ will develop four input statements,
based
on IBM's:
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a) Business Objectives
b) Product Life Cycle and Characteristics
c) Competitive Positioning
d) "Customer" Segments & Buyer Behavior
Step 2. Developing Go-To-Market (GTM) Plan: Design an effective GTM strategy
for
IBM product or products that utilizes the right resources at the place, time
and
cost. A customer goes though a number of steps in his/her buying decision:
Awareness, Education, Action and Support. The GTM strategy will leverage
IBM's
internal and external resources to draw the "customer" to desired conclusions.
The formulation of the strategy will ensure that the power of the Internet is
fully utilized in concert with IBM's other resources.
Step 3. Defining Your Internet Marketing Tools: Selecting the best mix of
Internet and marketing tools to achieve IBM's objectives as defined in Step 1.
The Internet gives you unique and cost-effective ways of communicating with
customers that traditional media and resources have not offered. Mediconsult.
com
will explore five categories of Internet tools and select those that are best
suited to your GTM plan and that work best with other internal and external
resources you are leveraging.
Step 4. Creating your Presence: To communicate with customers, you need to be
where the customer wants to buy. ▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ determines where the
developed
resources should reside on the Internet, to ensure that IBM has an effective
presence. ▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ will describe the characteristics and audiences of
the
four main options available to execute IBM's GTM plan on the Internet.
Step 5. Measuring the Results: A well-defined way to measure results is
critical
to IBM's plan for two reasons: First, these measurements will identify
necessary
changes to IBM's GTM plan as it is executed. Second, this Internet/marketing
methodology is an iterative process, and measured results will be important
inputs to the next product planning cycle. Measurement tools will be
discussed
and appropriate measurements will be applied to the GTM plan.
METHODOLOGY MATERIALS
ln addition to the licenses outline above, ▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ will make the
following materials in electronic format available to IBM:
- Presentation charts covering the methodology (MS-PowerPoint)
- Case Study document used during workshops (MS-Word)
- Workshop PreWork Assignment document (MS-Word)
- Workshop Preparation and Overview document (MS-Word)
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SCHEDULE B'
COSTING STRUCTURE
PART 1: NET COMMERCE PROJECT PARTICIPATION
- Outline a Competitive Whole Product offering ($1,800 per diem, 3 days)
- Tools for Needs Analysis and Proposal Writing ($1,800 per diem, 7 days)
- Participate in the Development of a Working Whole Product Solution ($1,800
per
diem, 18 days)
- Promotion of the IBM Net Commerce Solution (no charge)
PART 2: INTERNET MARKETING METHODOLOGY
- the fees for this section is $20,000 in total. This fee is based on an
amortized development cost and includes materials, the two licenses and a one
time training session.
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