PROFESSIONAL SERVICES AGREEMENT
_____________________________________ xxx.xxxxxx.xxx
The Professional Services Agreement by and between Business Data Services, Inc.
(BDS) and Value America ("Client") sets forth the terms and conditions under
which BDS shall provide certain professional services.
1. Scope of Services
All services to be provided hereunder shall be as authorized and defined in
mutually agreed upon Attachments which shall be executed by the parties and
shall constitute a part of this Agreement and shall be subject to the terms and
conditions hereof. This Agreement and the Attachments, whenever reasonable,
shall be construed as being consistent; however, in the event such construction
is unreasonable, the provisions of the Attachments shall control.
2. Payment
The applicable rates, charges and invoicing information for each task authorized
hereunder shall be as specified in the applicable Attachment.
3. Travel
Any and all travel and out-of-pocket expenses incurred by BDS or Client and any
taxes applicable to this Agreement shall be borne by the Client. BDS' policy
for travel related expenses is:
A. Any distance traveled by a BDS consultant that is less than 50
minutes from the consultant's home residence will not be charged to
Client.
B. All other travel time incurred by a BDS Consultant will be billed to
the Client at one half the normal hourly rate.
4. Confidentiality of Data
A. Both parties acknowledge that in connection with the performance of
its duties hereunder it may be provided with or have access to
written information and data which is proprietary to the other and
which is so marked as proprietary. Both parties agree to keep
confidential all such information and data and shall not disclose
same either in whole or in part to any third party without the other
party's written consent.
B. Both parties agree that without the other's prior written consent, it
will not copy or reproduce any information or data or sell, assign,
disclose, disseminate, give or transfer any such information or data
or any portion thereof to any third party, at any time whether before
or after termination of this Agreement.
C. Both parties further agree that upon termination of this Agreement or
completion of any task assigned hereunder, it will return all
applicable
information, data, related notes and work papers belonging to the
other.
D. BDS reserves the right to use Client name/logo in all of its
sales/marketing materials. BDS will, only with prior Client consent,
use Client name/logo in BDS press releases. Your company will be
asked to provide a public relations contact person for such purposes,
and partner with us in developing public relations information, where
possible.
5. BDS Representations
A. BDS represents that it shall at all times exert its best efforts to
diligently perform its assigned duties under this Agreement.
B. BDS warrants that all services under this Agreement shall be
performed in a professional and workmanlike manner.
C. BDS represents that all code developed for Client becomes the
property of the Client for whom it was developed and as such, Client
has unlimited usage of the developed applications.
D. Except as provided above and except as provided in the applicable
Software License Agreement with respect to the operation of any
software product, BDS MAKES NO WARRANTIES OR REPRESENTATIONS, EXPRESS
OR IMPLIED, IN FACT, OR IN LAW, INCLUDING THE IMPLIED WARRANTIES OF
MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
6. Termination
This Agreement or any Attachment hereunder may be terminated in the following
manner:
A. Each Attachment shall automatically terminate upon completion of all
work required to be performed thereunder.
B. Either party may terminate this Agreement at any time, provided an
open dialogue has been established to address issues, pertaining
to the project and/or the relationship in general.
C. By either party upon the default of the other party to perform any of
its responsibilities and obligations hereunder by giving the other
party written notice thereof, provided that such default has not been
corrected within the thirty (30) day period following receipt of such
notice.
D. By mutual consent of the parties.
7. Default
A. Any of the following shall constitute a default by either party:
1. Failure or breach of any warranty
2. Failure to timely perform any duty, obligation or undertaking
required in this Agreement and further provided such failure
to timely perform is not caused by the other party, and
3. If any warranty, representation, statement or response made in
writing in connection with the Agreement is untrue in any
material respect on the date as of which it was made.
B. In the event of a default by either party and provided the default is
not cured pursuant to paragraph 6.C., the non-defaulting party shall
have the right, without further notice, to terminate the Agreement
and to exercise any, all or any combination of the remedies available
at law or in equity.
8. Limitation of Liability
BDS' liability under the Agreement for any and all damages, whether direct or
indirect, including consequential, shall be limited to the amount of charges to
be paid to BDS under this Agreement by Client for the services which gave rise
to such damages.
9. Independent Contractor
It is specifically agreed by the parties that the relationship of BDS to Client
is that of an Independent Contractor, and BDS shall not be entitled to any of
the employee benefits provided by Client to its employees.
10. Nonsolicitation of Employees
During the period this Agreement is in effect and for a period of six (6) months
thereafter, each party agrees that it will not, without prior written consent of
the other party, solicit the employees of the other party for the purpose of
offering them employment.
11. Nonassignability
This Agreement may not be assigned without the prior written consent of the
other party.
12. Notices
Any notice required or permitted to be given hereunder shall be sent by prepaid
certified mail, return receipt requested and shall not be deemed to have been
given until received by the other party. Until either party hereto advises the
other party of a change in how notices shall be addressed, all notices shall be
sent to the respective address specified in this Agreement to the attention of
the applicable addressee, if any, noted below:
If to BDS: Vice President of Finance & Human Resources
If to Client: Xxxx Xxxxxxx, CFO
13. Force Majeure
Neither party shall be responsible for delays or failure in performance
resulting from acts beyond its control. Such acts shall include but not be
limited to Acts of God, strikes, lockouts, riots, acts of war, epidemics,
governmental regulations, fire, earthquakes or other disasters.
14. Entire Agreement
THIS AGREEMENT AND THE ATTACHMENTS ISSUED HEREUNDER CONSTITUTE THE COMPLETE AND
EXCLUSIVE STATEMENT OF TERMS AND CONDITIONS BETWEEN BDS AND CLIENT COVERING THE
PERFORMANCE HEREOF. THIS AGREEMENT OR ANY ATTACHMENT MAY BE MODIFIED ONLY BY A
WRITTEN INSTRUMENT DULY SIGNED BY AN AUTHORIZED REPRESENTATIVE OF BDS AND
CLIENT.
This Agreement shall be construed in accordance with the laws of the State of
Connecticut.
The terms of this Agreement are agreed to by:
Business Data Services, Inc. Value America
00 Xxxxxxx Xxxxxxxxx 0000 Xxxxxxxxxxxx Xxxxx
Xxxxxxxxxxx, XX 00000 Xxxxxxxxxxxxxxx, XX 00000
BY:___________________ BY: /s/ Xxxxx X. Xxxx
_____________________
TITLE:_________________ TITLE: CEO
__________________
DATE:___________________ DATE: 2/11/98
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