EXHIBIT (6)(h)
TEAMING AGREEMENT
This Teaming Agreement (this "AGREEMENT") is made as of December 20, 2001,
by and between SearchHelp, Inc., a Delaware corporation with an office located
at 0000 Xxxxxxx Xxxxxx, Xxxxxxxx, Xxx Xxxx (the "COMPANY") and NATIONAL ECONOMIC
DEVELOPMENT ADVISORS, LLC, a New York limited liability company controlled by
Xxxxxx X. Xxxxxx, CPA, an individual residing at 00 Xxxxxxxx Xxxx, Xxxxxxxx, Xxx
Xxxx 00000 and Xxxx X. Xxxxxxx, an individual residing at 00 Xxxxxxxxx Xxxx.,
Xxxxxxx Xxxxx, Xxx Xxxx 00000 (the "CONSULTANT").
W I T N E S S E T H
WHEREAS, the Company is desirous of having the Consultant provide its
expertise in community development and not-for-profit consulting (the
"SERVICES") to members or clients of the Company (the "MEMBERS"); and
WHEREAS, the Consultant desires to perform such Services for the Company on
the terms and conditions set forth herein.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, and the premises and covenants set
forth herein, each of parties agrees as follows:
1. SERVICES. (a) Subject to the terms and conditions set forth in this
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Agreement, the Company engages the Consultant to provide the Services to the
Members. The Services shall be provided on either a fixed fee or a time and
materials basis negotiated by Consultant with the Members, and only the Members
shall be responsible for compensation to the Consultant for such Services. The
Company may, from time to time, make changes in the scope of the Services to be
performed under this Agreement and these changes, to be effective, shall be in
writing and mutually agreed to by the Company and the Consultant, such agreement
not to be unreasonably withheld. The Company will make management and technical
personnel available to assist Consultant in any discussions and negotiations
with the Members directed toward completing a contract for Services in a timely
and commercially reasonable manner.
2. TERM. This Agreement, other than the terms, including without limitation
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the restrictive covenants, that will endure beyond the termination or expiration
of this Agreement as stipulated throughout this Agreement, shall commence on the
date written above and shall terminate three (3) years from the date hereof.
Notwithstanding the above, either party may terminate this Agreement, with or
without cause, upon sixty (60) days prior written notice to the other party;
provided, Consultant shall continue to provide Services to any Member for which
Services were commenced or contracted for prior to termination. Should either
party terminate this Agreement, the other party will be released from all its
obligations under this Agreement, except for those that expressly survive
termination.
3. PARTIES' RELATIONSHIP
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(a) Consultant will, in all discussions with Members in respect to the
Services, identify the Company as an independent company, and will state in such
discussions the relationship of the parties and the responsibility of each
party.
(b) This Agreement is not intended by the parties to constitute or create a
joint venture, partnership or formal business organization of any kind, and the
rights and obligations of the parties shall be only those expressly stated in
this document. Neither of the parties shall have the authority to bind the other
except to the extent authorized herein. Nothing in this Agreement shall be
construed as providing for the sharing of profits or losses arising out of the
efforts of either or both of the parties.
(c) Each party shall furnish to the other such cooperation and assistance
as may be reasonably required hereunder for the preparation and submission of a
proposal; provided, however, that the parties, as between themselves, shall be
deemed to be independent contractors, and the employees of one shall not be
deemed to be the employees of the other.
(d) The parties hereunder designate the following individuals within their
own organizations as their representatives responsible to direct performance of
the all necessary functions hereunder (including receipt and protection of
proprietary information). Such representatives shall have primary responsibility
to effectuate the requirements and responsibilities of the parties under this
Agreement.
For Consultant: Xxxxxx X. Xxxxxx
For Company: Xxxxxx Xxxxxx
(e) Nothing in this Agreement shall limit or restrict the rights of the
parties from quoting, selling or providing to others not Members (a) their
standard commercial products and services upon demand, (b) other
previously-offered products and services, and (c) technical information
concerning products and services. In the event the Member should request the
Company, or the Company is presented the opportunity, to make presentations,
whether orally or by written communications, to the Members concerning either
the Services or products and services of the Company, such request or
opportunity shall be made known to the Consultant.
(f) Consultant is contemplated as the prime interface with the Member and
it is recognized that Company may have continuing relations with the Member, and
both parties may be the recipients of inquiries concerning the subject matter of
this Agreement. Therefore, any relevant communications with the Member involving
this Agreement or the Services shall not be deemed to be a breach of the
confidentiality provisions of this Agreement.
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(g) Each of the principals of Consultant shall serve on the Advisory Board
of the Company.
4. BILLING
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The Company shall xxxx the Member for Services performed by the Consultant
in accordance with the amounts set forth in a separately negotiated contract
between the Company and the Member. The Member shall be solely responsible for
payment to the Company. The Consultant shall either negotiate the contract with
the Member or shall have the right, in its sole discretion, to reject any
contract for Services to be provided by the Consultant to a Member.
5. CONSULTING FEE
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(a) Consultant shall receive a consulting fee equal to fifty-five percent
(55%) of all compensation (not including reimbursement for expenses) received by
Company from the Member for the Services provided by Consultant. The payment of
such fee shall be due to the Consultant within five (5) days of receipt of
payment from the Member. Notwithstanding anything to the contrary set forth
above, however, the Company shall have no obligation to make any payment to the
Consultant for Services rendered to a Member unless and until the Company has
received payment for such Services from the Member. The Company shall submit to
Consultant, along with any payment for the consulting fee, all reasonably
detailed written documentation of payments by the Member.
(b) As consideration for agreeing to serve on the Advisory Board of the
Company as set forth in SECTION 3(G), each of Xxxxxx X. Xxxxxx and Xxxx X.
Xxxxxxx shall receive 100,000 fully paid and non-assessable shares of common
stock of the Company, free and clear of any claim, lien, option, charge or
encumbrance, within one (1) month from the date hereof.
6. CONFIDENTIALITY
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Each party agrees not to divulge any information that it receives from the
other, other than as contemplated herein, during the term of the Agreement, and
for a period of three (3) years thereafter, concerning matters expressed by such
party to be considered confidential or secret information, all of which will be
treated by the other party and its employees and agents in strict confidence and
will not be divulged to any person other than those who have a bona fide
requirement for such information in the course of performing Services under this
Agreement.
7. NON-DISPARAGEMENT
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Each party agrees that during the term of this Agreement and for a period
of three (3) years following termination hereof, neither party will denigrate,
disparage or defame the other party, or any of such party's officers, directors,
employees, consultants, subsidiaries or affiliates, and neither party shall make
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any derogatory comments or statements to the press, customers, potential
customers, or any individual or entity with whom the other party has a business
relationship.
8. LIMITATION ON LIABILITY
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IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY INDIRECT, INCIDENTAL,
SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, INCLUDING WITHOUT LIMITATION DAMAGES
FOR LOSS OF PROFITS, DATA OR USE, INCURRED BY EITHER PARTY OR ANY THIRD PARTY,
WHETHER IN AN ACTION IN CONTRACT OR TORT, EVEN IF THE OTHER PARTY HAS BEEN
ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. In any and all events, the
Consultant's aggregate and cumulative liability for damages under this Agreement
with respect Services provided to any Member in connection with this Agreement
shall be limited, and in no event exceed the amount of fees paid to the
Consultant by the Company for the Services provided to the respective Member.
9. INDEMNIFICATION
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(a) Each party (the "Indemnifying Party") shall indemnify and hold the
other party (the "Indemnified Party") harmless against all claims, liabilities
and costs, including reasonable legal fees and expenses incurred by Indemnified
Party arising out of or in any way related to the gross negligence or willful
misconduct of the Indemnifying Party. Furthermore, notwithstanding the
limitations on liability set forth in Section 8 above, the Consultant shall
indemnify and hold the Company harmless from and against any all claims,
liabilities and costs whatsoever arising directly out of the provision of any
Services to any Member.
(b) Notice must be given within a reasonable time after discovery of any
fact or circumstance on which a party could claim indemnification ("Claim" or
"Claims"), provided that no delay in providing such notice shall relieve the
other party from any obligation hereunder unless (and solely to the extent) the
other party is prejudiced thereby. The notice shall describe the nature of the
Claim, if the Claim is determinable, the amount of the Claim, or if not
determinable, an estimate of the amount of the Claim. Each party agrees to use
its best efforts to minimize the amount of the loss or injury for which it is
entitled to indemnification. If the Indemnifying Party, in order to fulfill its
obligations to the other party, must take legal action or defend the other party
in legal action, the outcome of which would give rise to the other party seeking
indemnification, the Indemnifying Party shall consult with the other party with
respect to such legal action and allow it to participate therein at its own
expense.
(c) No Claim for which indemnification is asserted shall be settled or
compromised, including consent to the entry of a judgment, without the written
consent of the Indemnifying Party and, if the settlement, compromise or judgment
is not limited to the payment of money damages by the Indemnifying Party only or
imposes an injunction or other equitable relief upon the Indemnified party, by
the Indemnified party.
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(d) Subject to the provisions of the Section, neither party shall have
recourse for indemnification until the Claims are fully and finally resolved.
For a period of thirty (30) days following the giving of the notice of such
Claim, the parties shall attempt to resolve any differences they may have with
respect to such Claim.
(e) A Claim shall be deemed finally resolved in the event a matter is
submitted to a court, upon the entry of a judgment by a court of final
authority.
10. FORCE MAJEURE
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Neither party shall be responsible for any failure to perform or for any
delay in performance of the Services where the failure or delay is due to acts
of God or the public enemy, war, riot, embargo, fire, explosion, sabotage,
flood, accident, strikes, lockouts or other labor disturbances, orders or
decrees of any competent governmental or regulatory body, or any circumstance of
like or different character beyond such party's control.
11. PUBLICITY
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The parties shall not issue a news release, public announcement,
advertisement, or any other form of publicity concerning their efforts in
connection with this Agreement or the Services to be provided in connection with
this Agreement without obtaining prior written approval from the other party. In
the event such approval is granted, any resulting form of publicity shall give
full consideration to the role and contributions of the other party.
12. GOVERNING LAW
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This Agreement shall be interpreted, construed, governed and enforced
according to the laws of the State of New York without giving effect to the
conflicts of law rules that would cause the application of the laws of any
jurisdiction other than the internal laws of the State of New York to the rights
and duties of the parties hereto. The parties hereby consent to and submit to
the jurisdiction of the federal and state courts located in Nassau County, New
York.
13. NOTICES
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All notices hereunder shall be in writing and shall be validly given, made
or served (i) if in writing and delivered personally; (ii) five days after being
sent first class certified or registered mail, postage prepaid; or (iii) one day
after being sent by nationally recognized overnight courier to the party for
whom intended at the addresses as set forth above or at such other address as
may be provided.
14. WAIVER
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No waiver of any provisions of this Agreement shall be valid unless it is
in writing and signed by the person or entity against whom it is sought to be
enforced. The failure of any party at any time to insist on strict performance
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of any condition, promise, agreement, or understanding contained herein shall
not be construed as a promise, agreement or understanding at any future time.
15. SEVERABILITY; HEADINGS
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Each provision of this Agreement shall be considered severable to the
extent that if any one provision or clause conflicts with existing or future
applicable law, or is not given full force and effect because of such law, such
conflict or unenforceability shall not affect any other provision of this
Agreement which, consistent with such law, shall remain in full force and
effect. All such conflicting provisions shall be modified or reformed only to
the extent required for compliance with any applicable laws. All surviving
clauses shall be construed so as to effectuate the purpose and intent of the
parties. The headings of paragraphs herein are included solely for convenience
or reference and shall not control the meaning or interpretation of any of the
provisions of this Agreement.
16. ASSIGNMENT
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The interest of a party hereto may not be assigned or transferred without
the prior written consent of all other parties. Notwithstanding the foregoing,
this Agreement shall be binding upon any assignee or successor.
17. SURVIVAL
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Sections 4 through 9 shall survive the termination of this Agreement.
18. ENTIRE AGREEMENT
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This agreement constitutes the full and complete understanding and
agreement of the parties hereto and supersedes all prior agreements and
understanding with respect to the subject matter hereof, whether written or
oral. This Agreement may not be changed orally, but only by an Agreement in
writing signed by the party against whom enforcement of any waiver, change,
modification or discharge is sought.
19. COUNTERPARTS
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This Agreement may be executed in one or more counterparts which, taken
together, shall constitute one and the same instrument, and this Agreement shall
become effective when one or more counterparts, of which facsimile signatures
are acceptable, have been signed by each of the parties. It shall not be
necessary in making proof of this Agreement or any counterpart hereof to account
for more than one such counterpart.
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IN WITNESS WHEREOF, each of the parties has executed this Agreement as of
the date first above written.
SEARCHHELP, inc.
By: /s/ Xxxxxxx Xxxxxxxx
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Xxxxxxx Xxxxxxxx
President
NATIONAL ECONOMIC DEVELOPMENT ADVISORS, LLC
By: /s/ Xxxxxx X. Xxxxxx
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Xxxxxx X. Xxxxxx
President
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