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ISSC
Agreement for Consulting Services [GRAPH]
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The Vendor Computer Generated Solutions("Vendor") and Integrated Systems
Solutions Corporation ("ISSC") agree that the terms and conditions in this
document ("Agreement") and any applicable Statement of Work will apply to the
services Vendor will render to ISSC as an independent consultant. For this
Agreement, ISSC shall mean ISSC, its subsidiaries, its parent International
Business Machines Corporation ("IBM") and IBM's subsidiaries.
1.0 ASSOCIATED CONTRACT DOCUMENTS
A Statement of Work (SOW) will describe the scope of services ("Project") that
you will provide ISSC in response to ISSC's request for consulting services,
any other applicable terms and compensation for such services. A separate
Statement of Work will be required for each Project. The Statement of Work will
become subject to this Agreement when signed by Vendor and ISSC. The SOW
incorporates the terms and conditions of this Agreement until the SOW is termi-
nated.
The following order of precedence shall control in the event of any conflict in
terms and conditions:
1. the Statement of Work,
2. this Agreement.
2.0 SCOPE OF WORK
a. Vendor will provide the consulting services to ISSC set forth in the
Statement of Work. The consulting services may include collaboration with
and assistance to ISSC personnel or others employed or retained by ISSC.
b. Vendor will deliver to ISSC the deliverables described in the Statement of
Work, upon the terms and conditions set forth therein.
3.0 TRAVEL AND LIVING EXPENSES
ISSC shall reimburse Vendor only for actual and reasonable travel and living
expenses which are authorized in advance by ISSC and incurred in connection with
services furnished under this Agreement. Travel and living expenses shall be
billed at actual cost with supporting receipts consistent with ISSC travel
guidelines. Per diem rates may be used if mutually agreed to in an engagement
SOW.
4.0 INVOICES TO ISSC
Vendor will invoice ISSC for the services furnished and authorized travel and
living expenses incurred hereunder during the term of this Agreement. ISSC
shall make payments to Vendor for work performed within thirty (30) days after
acceptance of such invoice. The invoice must reference the appropriate ISSC
purchase order number.
5.0 COMPENSATION AND VENDOR SERVICES RATES
ISSC shall pay Vendor, as full compensation for the consulting services to be
provided by Vendor to ISSC, a fee in the amount set forth in the Statement of
Work. In no event will ISSC pay Vendor for services provided prior to or after
the term specified in this Agreement, unless such term has been amended by a
duly executed Change Authorization.
Rates that Vendor charges ISSC for services rendered under this Agreement are
set forth in Schedule A and will be reviewed on an annual basis and will not
increase more than 5% per year Vendor will be paid in accordance with rates
specified in Schedule A as may be amended from time to time as described herein.
6.0 Training and Resource Availability
ISSC will provide Transformation 2000 Methodology and Tools training to Vendor.
ISSC Transformation 2000 Services will maintain records of those Vendor
employees who have attended Transformation 2000 Methodology training (and will
be made available to Vendor on reasonable request).
Within 30 days of the signing of this Agreement, Vendor will identify to ISSC
the minimum number of employees who will be dedicated to ISSC Transformation
2000 engagements by role (i.e., Engagement Manager, Project Manager, I/T
Architect,, Tool Specialist, Team Leader, Sr. Systems Analyst, Systems Analyst,
Application Programmer, Programmer/Analyst, Programmer, etc.). Vendor must make
available, at a minimum, that number and skill level of employees throughout the
Agreement.
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Final Consulting Services Page 1 of 7
7.0 EQUIPMENT PROVISIONS
Vendor is responsible for providing the equipment, as defined in SOWs, necessary
for its employees to successfully complete the SOWs.
8.0 CONFIDENTIALT OVERNMENT CLASSIFIED INFORMATION
a. "Confidential Information" shall mean that information:
1. disclosed to Vendor by ISSC or its clients in connection with and during
the term of this Agreement;
2. which relates to ISSC's or its client's past, present and future
research, development and business activities;
3. which has been identified to Vendor at the time of disclosure as
Confidential Information of ISSC or its clients; and
4. all Transformation 2000 materials.
It shall also mean the deliverable items specified in this Agreement,
including drafts and associated materials.
The term "Confidential Information" shall not mean any information which: is
previously known to Vendor without obligation of confidence; or
1. is previously known to Vendor without obligation of confidence;
2. without breach of this Agreement, is publicly disclosed prior to or
subsequent to your receipt of such information; or
3. which is rightfully received by Vendor from a third party without
obligation of confidence.
b. For three years from the date of disclosure, Vendor agrees to hold all such
Confidential Information in trust and confidence for ISSC and not to use
such Confidential Information other than for the benefit of ISSC. Except as
may be authorized by ISSC in writing, for such period of time, Vendor
agrees not to disclose any such Confidential Information, by publication or
otherwise, to any person other than those persons whose services Vendor
requires who have a need to know such Confidential Information for purposes
of carrying out the terms of this Agreement or SOW, who agree in writing
to be bound by, and comply with, the provisions of this Section, and who
ISSC or its client has approved in writing for receipt of such Confidential
Information.
c. Vendor may not copy any Confidential Information except as explicitly
approved by ISSC or its clients in writing.
d. Vendor agrees to secure all writings, documents and other media that embody
Confidential Information in locked files at all times when not in use to
prevent its loss or unauthorized disclosure, and to segregate Confidential
Information, at all times from the material of others.
e. Upon termination or expiration of this Agreement, Vendor will return to ISSC
all written or descriptive matter including, but not limited to, drawings,
blueprints, descriptions, or other papers, documents, tapes, or any other
media which contains any such Confidential Information. In the event of a
loss of any item containing such Confidential Information, Vendor shall
promptly notify ISSC in writing.
f. In providing services under this Agreement, Vendor understands that ISSC
does not wish to receive from Vendor and Vendor agree not to provide to ISSC
directly or through others any information which may be considered
confidential and/or proprietary to Vendor and/or to any third party.
g. In the event that this Agreement should pertain to any classified government
contracts, Vendor shall not remove from ISSC premises any written matter or
copies thereof pertaining to such classified government contracts without
ISSC's permission and express written authority from the contracting officer
or the agency which has cognizance of said contract. Unless specifically
otherwise agreed to in writing by ISSC, Vendor will do all consulting work
which involves access or use of government classified information at ISSC
facilities or government facilities provided for such work and Vendor shall
abide by all governmental and ISSC security regulations pertaining to
classified government information or contracts.
9.0 RIGHTS IN DATA
a. All of the deliverable items of this Agreement prepared for or submitted to
ISSC by Vendor under this Agreement, shall belong exclusively to ISSC and
shall be deemed to be "Works Made for Hire." To the extent that any of the
deliverable items may not, by operation of law, be Works Made for Hire,
Vendor hereby assigns to ISSC the ownership of copyright in the deliverable
items and ISSC shall have the right to obtain and hold in its own name
copyrights, registrations and similar protection which may be available in
the deliverable items. Vendor agrees to give ISSC or its designees all
assistance reasonably required to perfect such rights.
b. To the extent that any materials preexisting this Agreement are contained in
the deliverables Vendor provides or delivers under this Agreement, Vendor
grants to ISSC an irrevocable, nonexclusive, world-wide, royalty-free
license to:
1. use, execute, reproduce, display, perform, distribute (internally or
externally) copies of, and prepare derivative works based upon, such
preexisting materials and derivative works thereof; and
2. authorize others to do any, some or all of the foregoing.
ISSC0006-1 October 301, 1996
Final Consulting Services Page 2 of 7
c. Vendor may include in the deliverables only preexisting materials that are
owned or licensable by Vendor, and shall identify such preexisting materials
at the time of delivery to ISSC.
d. Vendor warrants that all of the deliverable items prepared for or delivered
to ISSC by Vendor under this Agreement are Vendor's original works, and
that no part of them is protected by any right of any third party, except to
the extent that Vendor is licensed under such right to include such
part in the deliverable items.
10.0 RIGHTS IN INVENTION
a. "Invention" shall mean any idea, design, concept, technique, invention,
discovery or improvement, whether or not patentable, that is conceived
or reduced to practice in Vendor, performance of consulting services. Vendor
shall promptly apprise ISSC in writing of each Invention and why Vendor
believes it is new. Vendor shall own each Invention except:
1. Inventions made solely by ISSC personnel;
2. Inventions Vendor makes with any of ISSC's employees, which shall be
jointly owned by Vendor and ISSC.
b. With respect to Inventions that Vendor owns, Vendor shall promptly apprise
ISSC whether and in what countries Vendor will seek patent protection,
including utility model registrations. ISSC shall own and may through itself
or through, its designee seek patent protection for itself for, or may
publish, Inventions in any country in which Vendor does not seek patent
protection (whether Vendor apprises ISSC or fails to apprise ISSC of such
countries), and Vendor shall provide at its expense all reasonable
assistance to ISSC in seeking patent protection.
c. Vendor and ISSC each hereby grant to the other under all Inventions,
applications filed on such Inventions and patent issuing thereon
(including utility models by excluding those relating to appearance designs)
a worldwide, irrevocable, nonexclusive, non-transferable, and royalty-
free license to make, have made, use, have used, lease, sell and other-
wise transfer any product and to practice and have practiced any method.
The licensee may grant revocable or irrevocable sublicenses to its
Affiliates, and such Affiliates may grant such sublicenses to their
Affiliates.
d. "Affiliate" shall mean a corporation or other entity now or hereafter
controlling, controlled by or under common control with, a party hereto, but
such corporation or other entity shall be deemed to be an Affiliate only so
long as such control exists. The term "control", as used herein, shall
mean the legal, beneficial or equitable ownership, directly or indirectly,
of more than 50% of the aggregate of all voting equity interests in
such corporation or other entity.
e. With respect to jointly-owned Inventions, Vendor and ISSC shall share
equally in the expenses of seeking and maintaining patent protection,
except that either party at its own expense may seek and maintain patent
protection for both parties if the other party declines to share the
expenses. Vendor and ISSC may each license others without accounting under
such Inventions and patents issuing thereon.
f. With respect to Inventions relating to an appearance design and design
layouts for mask works, Vendor shall provide, at ISSC's expense, whatever
assistance ISSC requests in seeking and maintaining patent protection.
g. Nothing in this Agreement provides Vendor or ISSC any rights under any other
Invention. In performing consulting services, Vendor shall not knowingly
design or develop anything that infringes a patent or copyright of another
person, and Vendor shall promptly apprise ISSC in writing of any such
patent or copyright of which Vendor become aware.
11.0 WARRANTIES, REPRESENTATIONS AND CERTIFICATIONS
a. Vendor represents and warrants that Vendor is under no obligation or
restriction nor will Vendor assume any such obligation or restriction which
would in any way interfere or be inconsistent with, or present a conflict of
interest concerning, the services to be furnished by Vendor under this
Agreement.
b. Vendor warrants that Vendor and its employees will not use the ISSC
Transformation 2000 Methodology in any non-ISSC Year 2000 engagements.
Vendor warrants that it will use the ISSC Transformation 2000 Methodology
and tools in all ISSC Year 2000 engagements unless otherwise agreed to, in
writing, with ISSC.
c. Vendor warrants that it will not form any similar subcontracting
relationship with any other Year 2000 compliance or conversion services
provider while performing services under this Agreement or SOWs. Vendor
warrants that it will not further engage with an ISSC Transformation 2000
client for any services for a period of 12 months following its completion
of any ISSC Transformation 2000 engagement without the written approval of
ISSC.
12.0 GENERAL PROVISIONS
a. Any terms of this Agreement which by their nature extend beyond its
expiration or termination remain in effect until fulfilled. Vendor agrees to
comply, and do all things necessary for ISSC to comply, with all applicable
federal, state and local laws, regulations and ordinances, including, but
not limited to, the Foreign Corrupt Practices Act, the regula tions of the
United States Department of Commerce relating to the Export of Technical
Data and Federal Government security requirements for safeguarding
classified information, in so far as they relate to the services to be
performed under this Agreement. Vendor agrees to obtain the required
government approvals and related documents prior to export of any technical
data disclosed to Vendor or the direct product related thereto.
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Final Consulting Services Page 3 of 7
b. Vendor agrees that neither Vendor nor any of your agents or employees will
export or re-export any Confidential In information of ISSC or its clients,
nor any process, product or service that is produced as a result of the use
of such Confidential Information, to any country specified in such
regulations as a prohibited destination, without first obtaining U.S.
Government approval, by application through ISSC. Upon request, ISSC will
advise Vendor of the countries then specified as prohibited destinations.
c. Vendor shall not subcontract services under this Agreement unless
specifically identified and approved by ISSC in an SOW.
d. Vendor shall not place former IBM or ISSC employees on IBM or ISSC premises
without the written concurrence of ISSC.
e. Vendor shall comply with ISSC's practice prohibiting the receipt of payments
or gifts, for any purpose, by an employee or others associated with ISSC.
f. The relationship between Vendor and ISSC shall be that of an independent
contractor, and neither Vendor nor any person employed by Vendor shall be
deemed to be an employee of ISSC for any purpose whatsoever.
g. This Agreement does not obligate ISSC to issue any SOWs or Purchase Order(s)
to Vendor.
13.0 VENDOR EMPLOYEES
Vendor confirms the existence of agreements (for example, nondisclosure
agreements) with each of Vendor's employees or others whose services Vendor
require to enable compliance with all the terms of this Agreement, and Vendor:
a. shall provide ISSC with information identifying all employees or others whom
Vendor will utilize to perform services under this Agreement; and
b. upon ISSC's request, shall provide ISSC a copy of any such agreements.
c. If through actions of Vendor, any Vendor employee is removed from an
engagement for any reason within the first 30 days of placement on a
particular engagement, ISSC will have no obligation to pay Vendor for work
performed by that Vendor employee.
14.0 TERMINATION
a. ISSC may terminate for convenience this Agreement with 30 days prior written
notice. ISSC may terminate any Statement(s) of Work and/or Purchase Order(s),
or any portions thereof, by written notice. Upon receipt of such notice,
Vendor must immediately stop all activities associated with the terminated
Agreement and/or Statement(s) of Work and/or Purchase Order(s). Vendor will
be paid for the work performed through the date of termination when ISSC
receives the Services and Materials specified in the notice. Such payment
shall constitute ISSC's entire liability.
b. In the event of a default by Vendor, ISSC will provide Vendor written notice
thereof. If the default is not remedied within ten days or within the time
stated in the notice, which ISSC may revise in writing pursuant to discussion
with Vendor, ISSC may terminate this Agreement, the applicable Statement(s)
of Work, the Purchase Order(s), or any portion thereof. In such event ISSC
may require payment from Vendor for any replacement of services fees incurred
c. In the event of any termination of this Agreement, a Statement of Work or
Purchase Order, Vendor agrees to promptly provide ISSC with all Materials,
Inventions, Program Products and other items associated with the Statement of
Work and/or Purchase Order and otherwise comply with the terms and conditions
of this Agreement and the Statement of Work and/or Purchase Order with
respect to intellectual property rights.
d. Vendor may terminate this Agreement without cause with 120 days prior written
notice.
e. Vendor may terminate this Agreement with cause upon 30 days prior written
notice. ISSC shall have 30 days to cure the default.
f. If the Agreement is terminated by Vendor for cause, any SOWs not the cause of
the termination shall survive the termination of the Agreement, until they
are completed or otherwise terminated as set forth in this Agreement.
g. If the Agreement is terminated by Vendor not for cause, all SOWs shall
survive the termination of the Agreement until they are completed or
otherwise terminated as set forth in this Agreement.
h. If Vendor provides notice of termination of the Agreement as described
herein, ISSC may still add additional SOWs to the Agreement during the
notice period.
i. Vendor can terminate an SOW for cause upon 30 days prior written notice. ISSC
shall have 30 days to cure the default.
j. Vendor cannot otherwise terminate an SOW.
15.0 DEFAULT
In the event of default, either party shall have all remedies which may
be available to it in law or equity.
ISSC0006-1 October 301, 1996
Final Consulting Services Page 4 of 7
16.0 CONFLICT OF INTEREST
a. In performing the required services under this Agreement, it is your
responsibility to avoid:
1. any actual or apparent conflict between your duties or obligations to
other parties, including the Federal Government, and such duties and
obligations assumed under this Agreement; and
2. disclosure of information which would, or would appear to, violate such
duties and obligations to third parties.
b. In the performance of this Agreement, Vendor shall not make or participate in
any marketing calls or contacts with the Federal Government or others which
might create the possibility or appearance of a conflict of interest.
c. It is understood that Vendor are not now consulting with matters which
conflict or appear to conflict with the subject matter of this Agreement. It
is agreed that, if subsequent to the execution of this Agreement, Vendor find
that a conflict, or what may appear to be a conflict, develops because of a
relationship created or intended to be created between Vendor and any third
party, Vendor shall immediately notify ISSC who shall have the right, at its
sole discretion, to terminate this Agreement on twenty-four hours notice.
Upon exercise of such right of termination, ISSC's only obligation to Vendor
shall be to reimburse Vendor for services rendered to the date of
termination.
17.0 SOLE AGREEMENT
This Agreement shall supersede all prior agreements and understandings between
the parties respecting the subject matter hereof. This Agreement may not be
changed or terminated orally by or on behalf of either party. In the event of
conflict between the body of this Agreement and the Statement of Work, the
Statement of Work shall prevail.
18.0 TRADEMARK
Notwithstanding any other provisions of this Agreement, Vendor shall have no
right to use the trademark of ISSC or IBM, or trade name, or to refer to this
Agreement or the services performed hereunder directly or indirectly, in
connection with any product, promotion or publication without the prior written
approval of ISSC or IBM, as applicable.
19.0 APPLICABLE LAWS
Each party shall, at its own expense, comply with all laws and regulations of
federal, state, and local government authorities relating to its obligations
under this Agreement.
The laws of New York govern this Agreement and any disputes hereunder shall be
heard by the Federal District Court for the Southern District of NY.
20.0 NOTICES
Any notice required or permitted under this Agreement will be sent to the
Contract Coordinators named below, and shall be effective upon receipt as
demonstrated by reliable written confirmation (for example, certified mail
receipt, courier receipt or facsimile receipt confirmation sheet).
Contract Coordinators:
ISSC0006-1 October 301,1996
Final Consulting Services Page 5 of 7
For ISSC:
Integrated Systems Solutions Corporation
Route 100
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City, State, Zip code
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇
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Facsimile: - ▇▇▇-▇▇▇-▇▇▇▇
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For Vendor:
Computer Generated Solutions, Inc.
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Address
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Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
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Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
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With copy to:
Integrated Systems Solutions Corporation
Rte 100
Address
▇▇▇▇▇▇, NY 10589
City, State, Zip code
Attention: ISSC General Counsel
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
21.0 INSURANCE AND INDEMNITY
a. Vendor shall secure and maintain adequate Workmen's Compensation Insurance in
accordance with the law of the state wherein the services are to be
performed. Vendor further agree to maintain comprehensive general and
vehicular liability insurance for claims for damages because of bodily injury
(including death) and property damage, caused by or arising out of acts or
omissions of your employees. The minimum limits of such insurance shall be
$1,000,000 for each person, $1,000,000 for each accident because of
bodily injury and $1,000,000 because of property damage for each accident.
b. The insurance required by this provision shall be effected prior to
commencement of effort and/or services by Vendor on ISSC premises and
notification of its placement furnished to ISSC by Vendor no later than five
days prior to such commencement. Should ISSC request, Vendor shall furnish or
cause to be furnished to ISSC, certificates of such insurance prior to the
commencement of effort and/or services on ISSC premises. In no event, shall
any such Insurance be canceled prior to completion of effort without prior
written notice to ISSC by your insurance carrier.
c. Vendor assumes full and complete responsibility for any and all risks in
connection with the services furnished by Vendor under this Agreement. Vendor
shall indemnify, defend and hold harmless ISSC, its officers, agents and em-
ployees, from and against any and all claims, actions, suits, expenses,
losses, liabilities, and damages (including attorneys' fees and expenses)
arising out of or in connection with services provided under this Agreement,
including, without limitation, any of the foregoing arising out of or in
connection with the obligations and representations by Vendor pursuant to
Rights in Data and Rights in Invention Sections and all such damages arising
from or related to its breach or threatened breach of the provisions of
Warranties, Representations and Certifications Section b-e. Ven dor agrees
that for the purpose of compliance with the requirements of the Occupational
Safety and Health Act of 1970, services performed for ISSC shall be deemed
entirely within your responsibility. Vendor will notify ISSC promptly, in
writing, if a charge of noncompliance with such act has been filed against
Vendor in connection with services being performed by Vendor in ISSC owned
or leased premises. Under no circumstances is either party liable for
economic consequential damages, (including lost savings or profits) or
incidental damages even if advised of their possibility.
22.0 ASSIGNMENT
ISSC may assign this Agreement to its parent, IBM, without the consent of
Vendor.
ISSC0006-1 October 301,1996
Final Consulting Services Page 6 of 7
THE PARTIES ACKNOWLEDGE THAT THEY HAVE READ THIS AGREEMENT, UNDERSTAND IT, AND
AGREE TO BE BOUND BY ITS TERMS AND CONDITIONS. FURTHER, THE PARTIES AGREE THAT
THE COMPLETE AND EXCLUSIVE STATEMENT OF THE AGREEMENT BETWEEN THE PARTIES
RELATING TO THE SERVICES DESCRIBED HEREIN CONSISTS OF 1) THS AGREEMENT, 2) ANY
STATEMENT(S) OF WORK, 3) ANY CHANGE AUTHORIATION(S), AND 4) ANY OTHER AGREEMENTS
REFERENCED HEREIN. THIS STATEMENT OF THE AGREEMENT SUPERSEDES ALL PROPOSALS OR
OTHER PRIOR AGREEMENTS, ORAL OR WRITTEN, AND ALL OTHER COMMUNICATIONS BETWEEN
THE PARTIES RELATING TO THIS SUBJECT.
Accepted by:
Integrated Systems Solutions Corporation
{d/b/a ISSC, Inc,}
By: /s/ ▇.▇. ▇▇▇▇▇▇▇▇▇
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Authorized Signature
▇.▇. ▇▇▇▇▇▇▇▇▇ 11/7/96
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Name DAte
Director, External Relations
Address:
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Accepted by:
Vendor
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
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Authorized Signature
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Name (Type or Print) Date
Computer Generated Solutions, Inc.
Address: ▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇.
▇▇▇ ▇▇▇▇, ▇.▇. ▇▇▇▇▇
ISSC0006-1 October 31, 1996
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