EXHIBIT 10.9
▇▇▇▇▇▇▇▇ Consulting LLP
Suite 600
AC Andersan ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ . ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Consulting Tel: (▇▇▇) ▇▇▇-▇▇▇▇
MASTER CONSULTING SERVICES AGREEMENT
THIS MASTER CONSULTING SERVICES AGREEMENT (the "Agreement") is made and
entered into as of the 1st day of April, 1999 ("the Effective Date") by and
between Digex, Incorporated., a Delaware corporation with offices at ▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ("Digex"), and ▇▇▇▇▇▇▇▇ Consulting
LLP, an Illinois partnership with a place of business at ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇
▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ("Consultant").
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Recitals
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1. Consultant is in the business of providing information
technology consulting services to its clients; and,
2. Digex desires to obtain the services of Consultant to work on certain
projects in accordance with the provisions of this Agreement, and Consultant
desires to provide such services; and,
3. Consultant is currently performing services for Digex under the following
letters of authorization (identified below by project name and date):
. DCNS Production Support - November 16, 1998
. Performance Management -November 16, 1998
. DCNS Release 1.1 - January 3, 1999
. DCNS Release 1.2 - January 3, 1999
. Tech Support - January 13, 1999
, which are deemed to be Services Orders (as defined below), and are
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incorporated in, and subject to, the terms and provisions of this Agreement;
and,
4. The parties desire to enter into this Agreement in order to set forth the
terms and conditions under which Consultant will provide services to Digex
hereafter.
In consideration of the covenants and agreements set forth herein, the
parties hereto agree as follows;
1. SERVICES; SERVICE ORDERS.
A. Digex and Consultant agree that Consultant will provide the
consulting services to perform the work (the "Work") as described in one or
more individual orders ("Service Orders"), each of which shall be mutually
agreed to in writing between Digex and Consultant. Service Orders so agreed
to in writing by the parties shall be incorporated in, and subject to, the
terms and provisions of this Agreement. Each Service Order will contain, as
applicable, a reference to this Agreement, a detailed description of the
work to be performed by Consultant, including, but not necessarily limited
to the following: (i) the specific requirements and duties of both parties,
including all Work; (ii) all prices, costs or fees, expenses, and taxes
associated with the Work, including without limitation, Consultant fees and
expenses; (iii) the estimated time period and milestone schedule of
performance of the Work; (iv) deliverables, if any, and applicable
acceptance criteria; (v) Work location(s); (vi) the specific individuals
assigned to the Work, and (vii) specific terms applicable to the Service
Order.
B. To the extent of any conflict or inconsistency between the
provisions of this Agreement and those of the Service Order, the provisions
of the applicable Service Order will govern, except that the provisions of
this
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Agreement shall supercede the provisions of those Service Orders expressly
identified in Recitals (3) above, in the event of a conflict. Nothing herein
shall obligate either party to perform or pay for Work, including changed
work, unless and until such Work and the fees, costs and schedules therefor
are specifically provided for and mutually agreed to in writing in a Service
Order, or amendment(s) thereto which are executed by the parties. Changes to
the scope of the Work shall be made only in a writing executed by authorized
representatives of both parties.
C. The parties agree that the terms of this Agreement and any
applicable Service Order shall be the only terms applicable to the
performance of the Work hereunder.
D. Consultant shall make written status reports as to the Work
performed to the date of such report, from time-to-time as reasonably
requested by Digex, and as specified in the applicable Service Order.
E. If any Service Order requires the provision of third party
products, including hardware and software, Digex may, but need not, request
that Consultant provide such products, or submit a quotation or proposal
therefor. Upon such request, Consultant's affiliate, Proquire LLC
("Proquire"), shall procure such products subject to a separate, mutually
agreed to contract between Proquire and Digex, Consultant may invoice,
collect, and receive from Digex all sums that are or become due to Proquire,
including taxes and shipping charges, as applicable, it being understood
that Consultant shall indemnify and hold Digex harmless from and against any
failure or refusal by Consultant to forward any payments from Digex which
are specifically due Proquire. Nothing herein shall obligate Digex to select
Proquire for procurement of any products.
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F. The Work contemplated by this Agreement is not directed to, and
Consultant has no responsibility for, the resolution of any Year 2000 Problems
that may exist in Digex's existing hardware, software, firmware and data,
including, among other things, problems with accurately processing, providing,
and/or receiving date data from, into, and between the twentieth and twenty-
first centuries, and the years 1999 and 2000, including leap year calculations
("Digex Year 2000 Problems"). Consultant shall have no liability in the event
any Digex Year 2000 Problems disrupt, delay or prevent Consultant's performance
of its obligations pursuant to this Agreement.
G. Work provided hereunder will in no event include Consultant acting
as an expert witness or otherwise providing litigation support services.
2. TERM; TERMINATION.
A. Unless sooner terminated as provided herein, the term of this
Agreement shall commence as of the date hereof and shall remain in effect for a
period of one year or until expiration of the last outstanding Service Order,
whichever is later. The term of this Agreement shall automatically renew on a
month to month basis upon expiration of the term then in effect, until either
party notifies the other in writing of its intention to terminate this Agreement
within at least thirty (30) days of such termination.
B. Digex shall be under no obligation to compensate Consultant for
any Work performed except as specifically agreed upon in a Service Order.
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C. Either party may terminate this Agreement or any Service Order for
any reason in whole or in part at any time with at least thirty (30) day's
advance written notice to the other. In the event of termination by either
party, Digex shall pay Consultant any unpaid amounts for all Work performed in
accordance with the applicable Service Order and expenses incurred by Consultant
prior to the date of termination. In the event of any such termination by Digex,
and unless the parties may otherwise agree, the only services to be performed by
Consultant after its receipt of notice of termination shall be services
associated with "winding-down" the Work. For "wind-down' work, Digex shall pay
Consultant for all Work performed in accordance with the applicable Service
Order, plus expenses incurred by Consultant prior to the date of termination. In
addition, if Digex terminates a Service Order under this Section 2.(C), Digex
shall also pay Consultant for any reasonable and actual demobilization or other
costs resulting from such termination. Except as may be specified in a Service
Order, such winding-down services shall consist of de-installation of
Consultant-owned equipment and software, removal and stowage of Consultant-
owned materials and equipment, removal of Consultant's property (tools and the
like), payment of charges for leases of cars or apartments necessary for the
Consultant's performance of on-site Work (provided always that the same have
been approved by Digex), the loss of any non-refundable, pre-paid expenses such
as airline tickets for Consultant personnel, and reasonable fees and expenses in
connection with the stopping of work by Consultant's project team and
preparation for storage of work in process (such storage of work in process time
in no event to exceed the efforts of half the Consultant project team for one
(1) week unless otherwise mutually agreed upon). In the event of any termination
under this Section by Consultant, Digex shall not be responsible for any "wind-
down" or "demobilization" costs.
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D. Either party may, upon giving thirty (30) days' written notice
identifying specifically the basis for such notice, terminate the applicable
Service Order (and not any other Service Order) for breach of a material
term or condition of the applicable Service Order, unless the party
receiving the notice cures such breach within the thirty (30) day period. In
the event of such termination by either party, Digex shall pay Consultant
any unpaid amounts only for Work performed in accordance with the applicable
Service Order and expenses incurred by Consultant prior to the date of
termination. If Consultant terminates a Service Order for breach by Digex,
Digex shall also pay Consultant for any wind-down services, actual
demobilization, or other costs reasonably incurred prior to the date of
termination.
E. Following any termination of this Agreement or any Service
Order, whether for breach, or without cause, neither party shall have any
further liability to the other, except as provided in (C) or (D) above, as
appropriate.
F. Consultant reserves the right to determine which of its
personnel shall be assigned to perform Work under each Service Order, and to
replace or reassign such personnel during the term hereof; provided,
however, that it will, subject to scheduling and staffing considerations,
attempt to honor Digex's request for specific individuals. For Work
performed on a time and material basis, in the event Consultant replaces any
personnel that are specifically classified in the applicable Service Order
as "full time" personnel (except due to sickness, death, disability,
personal leave, termination of employment, or any legally required absence),
without the approval of Digex, Digex shall not be charged for, and will not
pay any costs or fees associated with hours spent by such replacement
personnel familiarizing themselves with Work requirements relating to the
scope of the replaced person's responsibilities under
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the applicable Service Order ("Familiarization Time"). The preceding
sentence does not apply to the temporary replacement of personnel due to
periodic training requirements of Consultant's personnel. Such
Familiarization Time will be deemed limited to a maximum of forty (40)
hours, except as the parties may mutually agree in the applicable Service
Order. Digex shall not unreasonably withhold or delay its approval of
Consultant's request for replacement of any personnel.
G. The parties agree that, in the event of a dispute or alleged
breach subject to Section 2.(D), they will work together in good faith
first, to resolve the matter internally by escalating it to higher levels of
management and, then if necessary, to use a mutually agreed alternative
dispute resolution technique prior to resorting to litigation. This
provision shall not apply to disputes involving confidentiality or
infringement of intellectual property rights (in which case either party
shall be free to seek available remedies in any forum).
3. COMPENSATION; EXPENSES.
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A. Except for fixed price or fixed price incentive service orders,
Consultant shall be compensated at the hourly, project or other milestone
rates as specifically set forth in each Service Order. Invoices shall be
submitted for each Service Order monthly, in arrears, for Work performed
during the preceding period, or as otherwise expressly set forth in the
applicable Service Order. Invoices shall be paid approximately fifteen (15)
days after receipt. Any invoice remaining unpaid for more than thirty (30)
days from receipt shall accrue interest at a rate of the lesser of one and
one-half (1.5%) percent per month or the highest rate allowed by law. In the
event of any good faith dispute with regard to a portion of an invoice, the
undisputed portion shall be paid as provided herein.
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Upon resolution of the disputed portion, any amounts owed to Consultant
shall be paid with interest at the rate set forth above accruing from the
date such amounts were originally due. Any credits due to Digex shall be
offset against subsequent invoices or reimbursed to Digex by Consultant,
inclusive of interest as aforesaid. Invoices must be in form and detail
acceptable by Digex as expressly set forth in the applicable Service Order,
and each invoice shall include Consultant's certification that the amounts
charged are, to Consultant's best knowledge at the time the invoice was
billed, a true and accurate reflection of the Work performed during the
applicable invoice period.
B. Except for fixed price or fixed price incentive service
orders, and unless provided otherwise in any Service Order, Consultant shall
be reimbursed by Digex for all reasonable and actual expenses incurred by
Consultant in the performance of the Work, including, but not necessarily
limited to, travel, lodging and subsistence expenses.
C. Each monthly invoice shall include the following: (i)
cumulative fees and expenses invoiced through the applicable period, and
(ii) for fixed fee based services, the unbilled amount remaining under the
terms of the applicable Service Order through the invoice period, along with
an estimated percentage of the work completed.
D. Digex shall pay all taxes, including any interest and
penalties from any related deficiency in connection with this Agreement
(except taxes based on or measured by Consultants net income) including any
sales, use, excise, value-added, services, consumption, withholding and
other taxes and duties assessed and applicable to the provision of Work by
Consultant to Digex or on Consultant's charges to Digex under this Agreement
including the
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reimbursement of expenses. To the extent the Work under a Service Order
involves cross border or extended out-of-state staffing issues, the Service
Order will include a provision which addresses these tax and/or expenses
issues in more detail, as mutually agreed by the parties. Consultant will
identify, as a separate line item on the invoice, the amount of taxes due
from Digex to Consultant. The parties shall cooperate in good faith to
minimize such tax liabilities to the extent legally permissible.
4. RELATIONSHIP; USE OF FACILITIES.
A. In connection with this Agreement, each party is an
independent contractor and shall not have any authority to assume or create
any commitment or obligation, express or implied, on behalf of the other
party, except as expressly set forth in this Agreement.
B. Nothing contained herein shall be deemed to create any
relationship of partnership or joint venture, or of employer/employee,
master/servant, franchisor/franchisee, or fiduciary or agency relationship
between the parties for any purpose. Neither party's employees shall be
deemed "leased" employees of the other for any purpose,
C. Nothing in this Agreement shall entitle the employees of one
party to be eligible for fringe benefits accorded to the other party's
employees including, without limitation, health disability, life, and
accident insurance, retirement plan participation, profit sharing, stock
options, bonuses and the like. Each party is solely responsible for the
withholding and payment of all federal, state and local income, social
security and unemployment taxes, salaries and other payments required to be
made by it in accordance with applicable law for
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or on behalf of its employees.
5. INDEMNIFICATION; LIMITATION OF LIABILITY.
A. Each party agrees to indemnify, defend and hold the other
party (including its officers, directors, employees, principals partners,
shareholders or holders of an ownership interest, as the case may be)
harmless from and against any and all third party claims, demands, losses,
liabilities, judgments, awards, expenses and costs (including attorneys'fees
and expenses) relating to bodily injury or death of any person or damage to
real and/or tangible personal property directly caused by the negligence or
willful misconduct of the indemnifying party, its personnel or agents in
connection with the performance of the Work hereunder.
B. If Digex promptly notifies Consultant in writing of a third
party claim against Digex that any Deliverable (as defined in Section 6.
(A.) herein) developed by Consultant under this Agreement or any Service
Order infringes a United States patent, copyright, trade secret or other
intellectual property right of any third party in existence during the term
of the applicable Service Order, Consultant will indemnify and hold Digex
harmless from and against such claim and will defend any such claim at its
expense and will pay any costs or damages that may be finally awarded
against Digex. Consultant will not indemnify Digex, however, if the claim of
infringement is caused by (1) Digex's misuse or modification of the
Deliverable; (2) Digex's failure to use corrections or enhancements made
available by Consultant; (3) Dlgex's use of the Deliverable in combination
with any product or information not owned or developed by Consultant; (4)
Digex's distribution, marketing or use for the benefit of third
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parties of the Deliverable or (5) information, direction, specification or
materials provided by Digex to Consultant. If any Deliverable is, or in
Consultant's opinion is likely to be, held to be infringing, Consultant
shall at its expense and option either (a) procure the right for Digex to
continue using it, (b) replace it with a noninfringing equivalent, (c)
modify it to make it noninfringing or (d) direct the return of the
Deliverable and refund to Digex the fees paid for such Deliverable less a
reasonable amount for Digex's use of the Deliverable up to the time of
return. The foregoing remedies constitute Digex's sole and exclusive
remedies and Consultant's entire liability with respect to infringement.
C. To receive the foregoing indemnities, the party seeking
indemnification must promptly notify the other in writing of a claim or suit
and provide reasonable cooperation (at the indemnifying party's expense) and
full authority to defend or settle the claim or suit. The indemnifying party
shall have no obligation to indemnify the indemnified party under any
settlement made without the indemnifying party's written consent.
D. Except for Digex's payment obligations to Consultant pursuant
to this Agreement and all Service Orders, the limit of each party's
liability to the other for failure to perform its obligations under this
Agreement or any Service Order (whether in contract, tort, negligence,
strict liability in tort or by statute or otherwise) shall not in the
aggregate exceed the fees paid by Digex to Consultant under the applicable
Service Order. The exclusive remedy of either party for any claim arising
out of this Agreement or any Service Order arrangements shall be for the
breaching party, upon receipt of written notice pursuant to Section 2.(D),
to cure the breach at its expense, and failing that, the return of fees paid
to Consultant by Digex for the work related to the breach.
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E. IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR CONSEQUENTIAL,
INCIDENTAL, SPECIAL, PUNITIVE, OR INDIRECT LOSSES, EXPENSES, OR DAMAGES
(INCLUDING WITHOUT LIMITATION LOST PROFITS, BUSINESS INTERRUPTION, LOST
BUSINESS, OR LOST SAVINGS), HOWSOEVER ARISING, WHETHER UNDER CONTRACT, TORT,
OR OTHERWISE, AND WHETHER OR NOT SUCH PARTY HAS BEEN PREVIOUSLY ADVISED OF
THE POSSIBILITY OF SUCH LOSS OR DAMAGE. ANY ACTION BY EITHER PARTY MUST BE
BROUGHT WITHIN TWO (2) YEARS AFTER THE CAUSE OF ACTION SHOULD REASONABLY
HAVE BEEN KNOWN BY THE PARTY SEEKING RELIEF.
F. The allocations of liability in Section 5.(D.) and Section 5.
(E.) of this Agreement represent the agreed and bargained-for understanding
of the parties and Consultant's compensation for the Work reflects such
allocations. The parties agree further that they will look only to the
assets of the other party in connection with any liabilities hereunder and
in no event shall either have any claim against any affiliate, subsidiary,
shareholder, officer, director, employee, agent, partner, investor, or other
holder of an ownership interest in the other party in connection with this
Agreement.
6. PROPERTY RIGHTS.
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A. All original written materials, including programs, tapes,
listings, other programming documentation, and all other data, written
information and material originated and prepared for Digex, whether
individually by Consultant or jointly with Digex, pursuant to this Agreement
(collectively, for purposes hereof, the "Deliverables") shall belong to both
parties, each having the right to use and disclose such materials as it
determines without any obligation to account to the other party for any such
use or disclosure.
B. Nothing in this Agreement shall preclude either party from
developing for itself, or for others, materials which are competitive with
those produced as a result of the Work provided hereunder, irrespective of
their similarity to materials which may be delivered to Digex pursuant to
this Agreement. Furthermore, it is understood that both parties shall be
free to use and disclose without restriction their respective general
knowledge, skills and experience and any ideas, concepts, know-how, and
techniques related to the scope of any Service Order and used in the course
of providing the Work.
7. WARRANTY.
A. Consultant warrants that all Work shall (a) be performed in a
good and workmanlike manner and (b) the Deliverables developed by Consultant
pursuant to the Service Order shall substantially conform to the
specifications applicable thereto. Consultant shall, at no cost to Digex,
re-perform any work not in compliance with this warranty brought to its
attention within thirty (30) calendar days after that work is performed and
delivered to Digex.
B. Consultant warrants that any software Deliverables developed
by Consultant will, until the later to occur of either (a) March 31, 2000
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or (b) for a period of ninety (90) days after delivery (the "Year 2000
Warranty Period"), continue to conform to the year 2000 compliance criteria
to be mutually agreed upon between Digex and Consultant in an attachment to
the applicable Service Order ("Year 2000 Compliance Criteria"). Consultant
shall have no responsibility or liability for any failure of the
Deliverables to conform to the Year 2000 Compliance Criteria that is caused
by or related to: (i) Digex or third party hardware, firmware, software or
data that interfaces with, is manipulated by, or otherwise operates in
conjunction with, the Deliverables, including but not limited to
inconsistencies between the date handling characteristics of the
Deliverables and such Digex or third party components or data; (ii)
modification of the Deliverables by Digex or a third party, or (iii) failure
by Digex to comply with the obligations and responsibilities set forth in
this Agreement (to the extent such failure by Digex causes the
nonconformance of the Deliverables). During the Year 2000 Warranty Period,
if the Deliverables fail to conform substantially to the Year 2000
Compliance Criteria, Consultant shall use commercially reasonable efforts to
correct such non-conformance at no charge to Digex. THE PRECEDING IS
CONSULTANT'S ONLY WARRANTY AND DIGEX'S ONLY REMEDY CONCERNING THE YEAR 2000
COMPLIANCE OF THE DELIVERABLES,
C. THE PRECEDING ARE CONSULTANT'S ONLY WARRANTIES CONCERNING THE
WORK, THE DELIVERABLES AND ANY WORK PRODUCT, AND ARE MADE EXPRESSLY IN LIEU
OF ALL OTHER WARRANTIES AND REPRESENTATIONS, EXPRESS OR IMPLIED, INCLUDING
ANY IMPLIED WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY
OR OTHERWISE.
8. NON-SOLICITATION; CONFLICTS-OF-INTEREST. Except as
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the other party expressly authorizes in writing in advance, neither party
shall knowingly solicit, offer work to, employ, or contract with, whether as
a partner, employee or independent contractor, directly or indirectly, any
of the other party's Personnel during their participation in a project
pursuant to a Service Order or during the twelve (12) months after their
involvement in such project. For purposes of this Section 8, "Personnel"
includes any individual or company a party employs as a partner, employee or
independent contractor and with which a party comes into direct contact in
the course of the Work.
9. INSURANCE. Consultant will maintain the following insurance
coverage for the term of the Agreement:
(i) Commercial General Liability, with a limit of $1 million per
occurrence, and $2 million in the aggregate, covering bodily injury and
tangible property damage (excluding money and securities) claims;
(ii) Automobile Liability, with $1 million combined single limit
for bodily injury and property damage covering hired, owned, non-owned
vehicles;
(iii) Worker's Compensation with statutory limits;
(iv) Employers Liability with limits of $500,000 per accident,
$500,000 per illness per employee and $500,000 per illness aggregate.
The above coverage shall be with insurers maintaining an AM Best Rating of
B+ VIII. Consultant agrees, upon request by Digex, to provide Digex with a
certificate of insurance evidencing such coverages and adding Digex as a
named insured. Each party waives rights of subrogation it may otherwise have
regarding the other party's insurance policies, including but not limited to
property insurance, business interruption insurance, and other first-party
insurance,
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10. TRADEMARKS. Neither party shall use, directly or indirectly, in whole
or in part, in connection with the such party's business hereunder or otherwise,
or as part of the party's corporate, business or personal name, any signature,
monogram, logo, service ▇▇▇▇ or trade name (a "▇▇▇▇") that is now or may
hereafter be owned, licensed or used by the other party except in the manner and
to the extent approved in writing by the other party prior to any such use,
which approval may be withheld in the ▇▇▇▇ owner's sole discretion. Any
permitted use of a ▇▇▇▇ shall be immediately discontinued upon the termination
or expiration of this Agreement, and thereafter neither party shall use any ▇▇▇▇
in connection with its business or otherwise or as part of its corporate,
business or personal name which in the judgment of the other party hereto so
nearly resembles any ▇▇▇▇ owned by that other party that confusion or
uncertainty on the part of the public is likely to result therefrom. Each Party
hereby expressly disclaims any and all right, title and interest in and to any
▇▇▇▇ owned by the other Party whether or not used by the ▇▇▇▇ owner. The
covenants and disclaimers of this Section 10 shall survive the termination or
expiration of this Agreement.
11. CLIENT RESPONSIBILITIES.
A. In connection with Consultants provision of the Work, Digex shall
perform those tasks and fulfill those responsibilities specified in the
applicable Service Order ("Digex Responsibilities"). The Service Order may also
contain assumptions related to the Work. Digex understands that Consultant's
performance is dependent on Digex's timely and effective performance of Digex
Responsibilities hereunder and timely decisions and approvals by Digex. Except
to the extent a Service Order contains specific acceptance provisions, all work
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product provided to Digex for approval shall be deemed accepted if,
within ten (10) days after delivery, Digex has not provided to Consultant
written notice identifying specifically any basis for not approving the work
product. Consultant shall be entitled to rely on all decisions and
approvals of Digex in connection with the Work. Changes in decisions and
approvals are subject to Section 1. (B).
B. Consultant shall have reasonable use of Digex's facilities as
required in order to perform the Work. In addition to any particular items
specified in the Service Order, Digex shall supply on-site Consultant
personnel with suitable office space, desks, storage, furniture, and other
normal office equipment support, adequate computer resources (including
necessary third party rights to use software), telephone and facsimile
service, postage, copying, secretarial support, word processing, and general
office supplies which may be necessary in connection with Consultant's
performance of the Work. Misuse of Digex facilities shall be deemed a breach
of this Agreement, pursuant to Section 2. (D).
C. Neither party shall use the other's name in connection with
its use of the Deliverables or otherwise without the other party's express
written consent.
12. PROPRIETARY ITEMS. In the course of performance hereunder,
Consultant may use products, materials, tools and methodologies that are
proprietary to Consultant or to third parties (collectively "Proprietary
Items"). As between Digex and Consultant, Proprietary Items will be deemed
Confidential Information of Consultant for purposes of Section 13. Included
among the Proprietary Items of Consultant are tools that Consultant
Identifies as Solution Construction Aids ("SCAs"), which Consultant makes
available to clients under
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separate licensing terms. Digex shall have or obtain no rights in such
Proprietary Items (or in any modifications or enhancements to them) other
than (i) to use them as authorized by Consultant in writing from time to
time solely for purposes of performing Digex Responsibilities, (ii) to the
extent the Proprietary Items are incorporated into a Deliverable, to use
them as part of the Deliverable for purposes of Digex's internal business
only, or (iii) pursuant to Consultant's standard license for such
Proprietary Items or, in the case of Proprietary Items owned by third
parties, pursuant to terms acceptable to the applicable third party. If
Proprietary Items are made available to Digex under (i) or (ii) above, they
will be made available in an "AS IS" condition and without express or
implied warranties of any kind; those Proprietary Items made available under
(iii) above shall be subject only to applicable terms of the applicable
license.
13. CONFIDENTIAL INFORMATION.
During the course of this Agreement each party may be given access to
information (in hardcopy and/or electronic form) that relates to the other's
past, present, and future research, development, business activities,
products, services, and technical knowledge, and is identified by the
discloser as confidential ("Confidential Information"). In connection
therewith, the following subsections shall apply:
(i) The Confidential Information of the discloser may be used by
the receiver only in connection with the Work;
(ii) Each party agrees to protect the confidentiality of the
Confidential Information of the other in the same manner that it protects
the confidentiality of its own proprietary and confidential information of
like kind, but in no event shall either party exercise less than reasonable
care in protecting
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such Confidential Information. Access to the Confidential Information shall
be restricted to Consultant and Digex personnel engaged in a use permitted
hereby;
(iii) The Confidential Information may not be copied or
reproduced without the discloser's prior written consent;
(iv) All Confidential Information made available hereunder,
including copies thereof, shall be returned or destroyed upon the first to
occur of (a) completion of the Work or (b) request by the discloser, unless
the receiver is otherwise allowed to retain such Confidential Information.
Consultant may retain, subject to the terms of this Section, copies of
Digex's Confidential Information required for compliance with its
recordkeeping or quality assurance requirements;
(v) Nothing in this Agreement shall prohibit or limit either
party's use of information (including, but not limited to, ideas, concepts,
know-how, techniques, and methodologies) (i) previously known to it without
obligation of confidence, (ii) independently developed by or for it, (iii)
acquired by it from a third party which is not, to its knowledge, under an
obligation of confidence with respect to such information, or (iv) which is
or becomes publicly available through no breach of this Agreement;
(vi) If either party receives a subpoena or other validly issued
administrative or judicial process requesting Confidential Information of
the other party, it shall provide prompt notice to the other of such
receipt. The party receiving the subpoena shall thereafter be entitled to
comply with such subpoena or other process to that extent permitted by law;
(vii) In connection with the Work, Consultant may from time to
time undertake one or more quality assessment reviews. In order for such
reviews to be ▇▇▇▇▇ and candid, for the greatest benefit to both Digex and
Consultant, they should be kept confidential to the greatest extent
possible. The parties agree that any documentation created in connection
with such quality
MASTER CONSULTING SERVICES AGREEMENT
Confidential Page 19 06/18/99
assessment reviews shall be Confidential Information of Consultant and in no
event shall such documentation or the results of such reviews be
discoverable or admissible (or used for any purpose) in any proceedings
related to this Agreement or the Work.
14. FORCE MAJEURE. Neither party shall be liable for any delays or
failures in performance (other than payment obligations hereunder) due to
circumstances beyond its reasonable control.
15. COMPLIANCE WITH LAWS. Each party hereby agrees that, performing
its obligations hereunder, it will comply with all applicable laws and
regulations of the governments of the United States, the several states
thereof, and of any other country or subdivision thereof in which such
obligations, services and activities are performed, including without
limitation: environmental laws and regulations; workplace safety laws
including OSHA; laws prohibiting discrimination and mistreatment in
employment; and United States laws and regulations prohibiting payments to
or for the benefit of any official or employee of any government (or of any
subdivision thereof) of any country or subdivision thereof, or any person
acting in an official capacity, for purposes of influencing any act or
decision of such government.
16. OTHER PROVISIONS.
A. Governing Law; Jurisdiction: This Agreement and each
---------------------------
Service Order shall be governed by, construed applied and enforced in
accordance with the internal laws of the State of New York, without giving
effect to conflict of law rules. The parties expressly agree to exclude the
application of the U.N. Convention on Contracts for the International Sale
of Goods (1980) to
MASTER CONSULTING SERVICES AGREEMENT
Confidential Page 20 06/18/99
this Agreement and the performance of the parties contemplated herein, to
the extent that such convention might otherwise be applicable.
B. Assignment: Except for assignment by a party to any of its
----------
Affiliates, neither party may assign, sell or otherwise transfer its rights
or obligations under this Agreement or any Service Order without the prior
written consent of the other party. "Affiliate" for purposes hereof shall
mean any person or entity controlling, controlled by or under common control
with the assignor. Any such assignment by either party shall be subject to
the following conditions: (1) that assignor provides the other party to this
Agreement with written notice in advance of any such assignment, identifying
at a minimum, the full legal name of the assignee, its primary physical
address, e-mail address, federal identification number, names and phone
numbers of all principals, and the date of the assignment, and (2) that
assignee agrees in writing to be bound by the terms of this Agreement.
C. Remedies Cumulative: The remedies provided in this Agreement
-------------------
shall be cumulative, and the assertion by either party of any right or
remedy shall not preclude the assertion by such party of any other rights or
the seeking of any other remedies, including the recovery of damages, except
to the extent a remedy is expressly stated in this Agreement as a sole
and/or exclusive remedy,
D. Entire Agreement; Amendments: From and after the Effective
----------------------------
Date, this Agreement and the Service Order(s) issued and accepted hereunder
represent the entire agreement between Consultant and Digex and supersede
any prior or contemporaneous understanding or agreement, whether oral or
written, with respect to the subject matter hereof. Each Service Order,
MASTER CONSULTING SERVICES AGREEMENT
Confidential Page 21 06/18/99
except as its terms otherwise expressly provide, shall be a complete
statement of its subject matter and shall supplement and modify the terms
and conditions of this Agreement for the purposes of that project only,
except that the provisions of this Agreement shall supercede the provisions
of those Service Orders expressly identified in Recitals (3) above, in the
event of a conflict. No other agreements, representations, warranties or
other matters, whether oral or written, shall be deemed to bind the parties
hereto with respect to the subject matter hereof. The parties acknowledge
that they are entering into this Agreement solely on the basis of the
agreements and representations contained herein, and for their own purposes
and not for the benefit of any third party. Neither this Agreement nor any
Service Order may be modified or amended except by the mutual written
agreement of the parties. No waiver of any provision of this Agreement shall
be effective unless it is in writing and signed by the party against which
it is sought to be enforced.
E. Separability: The parties agree that each provision of this
------------
Agreement or any Service Order shall be treated as a separate and
independent clause, and the invalidity or unenforceability of any one clause
shall in no manner affect the validity or enforceability of any of the other
clauses hereof. If any one or more of the provisions contained in this
Agreement shall for any reason be held to be excessively broad as to scope,
activity or subject so as to be unenforceable at law, such provision or
provisions shall be construed by the appropriate judicial body by limiting
and reducing it or them so as to be enforceable to the extent compatible
with the applicable law as it shall then be in effect.
F. Survival of Terms: The terms of Sections 1.(F.)(G.), 2.(E),
-----------------
3, 4(A.), 5, 6, 7, 8, 10, 12, 13, and 16(A.), shall survive termination of
this
MASTER CONSULTING SERVICES AGREEMENT
Confidential Page 22 06/18/99
Agreement or completion of any Service Order,
G. Counterparts: This Agreement may be executed in any
------------
number of counterparts, some of which may be photocopies and all of which
taken together shall constitute one and the same instrument,
H. Notices: All notices, demands, consents, requests and approvals
-------
given by either party to the other hereunder shall be in writing and shall be
effective: when received if hand delivered or sent by fax (with confirmation of
receipt); the following business day if sent by Federal Express, DHL or other
generally recognized overnight delivery service (upon confirmation from the
service; or, on the date received if sent by United States certified or
registered mail, return receipt requested. Such communiques shall be addressed
as follows, unless a party designates a different address by written notice to
the other given in accordance herewith:
If to Digex: If to the Consultant:
------------ ---------------------
Digex Inc. ▇▇▇▇▇▇▇▇ Consulting LLP
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇., ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: Vice President of Finance Attn: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Fax:___________________________ Fax:_______________________
With a copy to: With a copy to:
▇▇▇▇▇▇▇ ▇▇▇▇▇, Esq. ▇▇▇▇ ▇. ▇▇▇▇▇▇
Digex, Inc. ▇▇▇▇▇▇▇▇ Consulting LLP
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇.,
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
MASTER CONSULTING SERVICES AGREEMENT
Confidential Page 23 06/18/99
Fax:______________________________ Fax:__________________________
I. Headings: The headings and section titles in this Agreement are
--------
inserted for convenience only and shall not affect the meaning or interpretation
of this Agreement or any article or provision hereof.
J. No Waiver: The delay or failure by either party to exercise or
enforce any of its rights under this Agreement shall not constitute or be deemed
a waiver of that party's right thereafter to enforce those rights, nor shall any
single or partial exercise of any such right preclude any other or further
exercise thereof or the exercise of any other right.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed
as of the date first written above,
DIGEX, INC. ▇▇▇▇▇▇▇▇ CONSULTING LLP
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------------- -------------------------
Print: ▇▇▇▇ ▇. ▇▇▇▇▇ Print: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
---------------------- ----------------------
Title: VP, Finance Title: Partner
---------------------- ----------------------
Date: 6/22/99 Date: 6/22/99
----------------------- -----------------------
MASTER CONSULTING SERVICES AGREEMENT
Confidential Page 24 06/18/99
May 10, 1999
▇▇. ▇▇▇▇ ▇▇▇▇▇
Vice President, Finance
Digex, Incorporated
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Dear ▇▇▇▇,
▇▇▇▇▇▇▇▇ Consulting LLP ("▇▇▇▇▇▇▇▇ Consulting") and Digex, Inc. ("Digex")
previously executed an engagement letter, dated _January 13, 1999_ ("Engagement
Letter") for ▇▇▇▇▇▇▇▇ Consulting to assist Digex with technical support of the
DCNS applications. This amendment letter ("Amendment") is hereby attached to and
incorporated into the Engagement Letter. This Amendment is modifies the
Engagement Letter as follows:
. ▇▇▇▇▇▇▇▇ Consulting will continue to provide the services of ▇▇▇▇ ▇▇▇▇▇▇ for
up to 50 hours per week at a cost of $75 per hour, plus reasonable travel and
per diem expenses to and from Beltsville, MD from June 1, 1999 through October
31, 1999.
All other terms of the Engagement Letter shall remain in full force and effect.
Upon full execution of the master consulting agreement that shall govern the
services described herein and other services, this Amendment, and the Engagement
Letter to which it is attached, shall be incorporated into the master consulting
agreement.
We appreciate the opportunity to work with Digex on this important effort. If
you have any questions, please call me at (▇▇▇) ▇▇▇-▇▇▇▇. If the above is in
accordance with your understanding of the agreement between the parties, please
sign below and return the original to my attention.
▇▇▇▇▇▇▇▇ Consulting, Proprietary and Confidential
Very truly yours,
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ (jf)
▇▇▇▇▇▇▇▇ CONSULTING, LLP
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Partner
Agreed and Accepted By::
DIGEX, INC.
By: /s/ ▇▇▇▇ ▇▇▇▇▇
-------------------------
Print: ▇▇▇▇ ▇▇▇▇▇
----------------------
Title: VP, Finance
----------------------
Date: 7/1/99
-----------------------
▇▇▇▇▇▇▇▇ Consulting, Proprietary and Confidential
May 10, 1999
▇▇. ▇▇▇▇ ▇▇▇▇▇
Vice President, Finance
Digex, Incorporated
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Dear ▇▇▇▇,
▇▇▇▇▇▇▇▇ Consulting LLP ("▇▇▇▇▇▇▇▇ Consulting) and Digex, Inc. ("Digex")
previously executed an engagement letter, dated __November 16, 1998__
("Engagement Letter") for ▇▇▇▇▇▇▇▇ Consulting to assist Digex provide production
support of the DCNS applications. This amendment letter ("Amendment") hereby is
attached to and incorporated into the Engagement Letter. This Amendment modifies
the Engagement Letter as follows:
. ▇▇▇▇▇▇▇▇ Consulting will continue to provide the services on an hourly, time
and materials basis on an as needed basis as determined by ▇▇▇▇ ▇▇▇▇▇▇▇ of
Digex from June 1, 1999 through December 31, 1999.
All other terms of the Engagement Letter shall remain in full force and effect.
Upon full execution of the master consulting agreement that shall govern the
services described herein and other services, this Amendment, and the Engagement
Letter to which it is attached, shall be incorporated into the master consulting
agreement.
We appreciate the opportunity to work with Digex Inc. on this important effort.
If you have any questions, please call me at (▇▇▇) ▇▇▇-▇▇▇▇. If the above is in
accordance with your understanding of the agreement between the parties, please
sign below and return the original to my attention.
▇▇▇▇▇▇▇▇ Consulting, Proprietary and Confidential
Very truly yours,
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ CONSULTING, LLP
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Partner
Agreed and Accepted By:
DIGEX, INC.
By: /s/ ▇▇▇▇ ▇▇▇▇▇
-------------------------
Name: ▇▇▇▇ ▇▇▇▇▇
----------------------
(typed or printed)
Title: VP, Finance
----------------------
Date: 7/1/99
-----------------------
▇▇▇▇▇▇▇▇ Consulting, Proprietary and Confidential
