Exhibit 10.5
ATA Foundation, Inc.
CONSULTANT AGREEMENT
This Agreement is made by and between the ATA Foundation, Inc., a nonprofit
organization having offices at ▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
(hereinafter called tile "FOUNDATION"), and Accident Prevention Plus, Inc.
(hereinafter called "CORPORATION);"
WHEREAS, the FOUNDATION desires to obtain the CORPORATION's services to
provide electronic recording and data collection interface in a project to pilot
test fatigue management technologies (hereinafter called "PROJECT").
WHEREAS, the CORPORATION desires to agrees to participate in such a PROJECT
pursuant to the terms and conditions stated below, the parties agree as follows:
ARTICLE I - SERVICES
A. The services, scope and specific tasks of this contract are outlined in
Exhibit A, Pilot Test of Fatigue Management Technologies Subcontract Proposal
which is hereby incorporated into and made a part of this Agreement.
B. The schedule for completion of the work shall be as set forth in Exhibit B,
Narrative Statement Pilot Test of Fatigue Management Technologies which is
hereby incorporated into amid made part of this Agreement. Such services and
tasks may be modified by the Project Director, ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇.
ARTICLE II- CONSIDERATION AND PAYMENTS
A. Payment. This Agreement shall be on a cost reimbursement basis. The maximum
total reimbursement to the CORPORATION under this Agreement shall be two hundred
and seventeen thousand eight hundred and seventy five dollars ($217,875), as
provided for in the budget, which is included in Exhibit A. Payment to be made
monthly upon completion of services described in Exhibit A and submission and
the FOUNDATION'S acceptance of all deliverables and reports.
B. Reimbursable Costs. Reimbursable costs shall be those direct and indirect
costs incurred in the performance of completing those services mentioned in
ARTICLE I which are allowable under the provisions of 48 CFR Part 31 of the
Federal Acquisition Regulations, "Contract Cost Principles and Procedures,"
(a/k/a 0MB Circular A-122). In addition, the CORPORATION agrees to abide by the
administrative rules and regulations mentioned in 22 CFR Part 518, "Uniform
Administrative Requirements for Grants and Agreements with Institutions of
Higher Education, Hospitals, and other Non-Profit Organizations," (a/k/a 0MB
Circular A-l 10).
C. Reports and Invoices. The CORPORATION shall submit a Final Report to the
FOUNDATION within 39 days of the end of the project. All invoices, reports and
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other materials or communications should be sent to:
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
ATA Foundation
▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
TEL: ▇▇▇-▇▇▇-▇▇▇▇
FAX: ▇▇▇-▇▇▇-▇▇▇▇
E-MAIL: ▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇.▇▇▇
Interim oral or written reports will be made by the CORPORATION upon request of
the FOUNDATION.
D. Payment. Payment shall be made within 30 (thirty) days of receipt of a proper
invoice and submission and acceptance of all charges and deliverables.
E. Termination. The FOUNDATION may terminate this Agreement at any time. In the
event of termination of this Agreement by the FOUNDATION for any reason, the
CORPORATION shall be compensated for work done through the date of receipt of
written termination notice. In the event of such termination all work completed
or partially completed shall become the property of the FOUNDATION. The
CORPORATION shall promptly submit all such work to the FOUNDATION.
ARTICLE III - OWNERSHIP OF DOCUMENTS
A. In further consideration of the FOUNDATION'S entering into this Agreement,
the CORPORATION agrees that any copyrightable work produced or composed by the
CORPORATION, including his agents or employees, as part of his duties under this
Agreement shall be deemed, and shall be, as between the FOUNDATION and the
CORPORATION, his employees, or agents, "work-for-hire" and the sole property of
die FOUNDATION. The CORPORATION hereby agrees to execute and deliver, or to
require that his employees or agents execute and deliver, any instruments which
may be necessary to effect the rights of the FOUNDATION, or its designees, with
respect to any such work.
B. CORPORATION further agrees that all documents prepared or obtained under this
Agreement, including but not limited to basic notes, sketches, charts, diagram,
diskettes, and other data prepared or obtained under this contract shall become
the property of the FOUNDATION. The CORPORATION, however, shall have the right
to retain file or other working copies of such items; provided, however, that
any derivative works shall belong sole to the FOUNDATION. Furthermore, the
Federal awarding agency, die Inspector General, Comptroller General of the
United States, or any of theft duly authorized representatives, have the right
of timely and unrestricted access to any books, documents, papers, or other
records of die CORPORATION that
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are pertinent to the award, and may make audits, examinations, excerpts,
transcripts and copies of such documents. This right also includes timely and
reasonable access to the CORPORATION's personnel for die purpose of interview
and discussion related to such documents.
C. The Foundation understands and agrees that the hardware and related software
being provided by the CORPORATION for the Project, including, without limitation
hereby, the three different onboard recording systems, including thereto (the
CORPORATION's "Equipment") are proprietary to the CORPORATION, and nothing in
this Agreement shall constitute a transfer of any ownership interest therein,
and shall not divulge any confidential matters relating to the operation of the
equipment without the written consent of the CORPORATION.
ARTICLE IV - CLEARANCE FOR PUBLICATION
A. The CORPORATION shall not divulge any information, including, without
limitation, reports or data given, prepared or assembled by the CORPORATION its
agents, employees or others pursuant to this Agreement in any thesis, writing,
public lecture, copyright filing and/or patent application. In addition, all
FOUNDATION information obtained by the CORPORATION in performing this Agreement
shall be held in confidence and shall not be disclosed to third parties.
B. Any invention developed by the CORPORATION as a part of this Agreement shall
provide for the rights of the Federal Government in accordance with 37 CFR Part
401, "Rights to Inventions Made by Nonprofit Organizations and Small Business
Firms Under Government Grants, Contracts and Cooperative Agreements."
C. Nothing in this Agreement, or Article IV hereof, shall in any way create any
ownership interest, or royalty-free license rights, in the equipment in favor of
the Federal Government or any other party.
ARTICLE V - CONFLICT OF INTEREST
A. The CORPORATION represents that it understands the nature of the FOUNDATION'S
interest in the Project described herein and that it is not currently
representing or performing or providing any service to any person or party with
an interest adverse to or otherwise in conflict with that of the FOUNDATION with
reference to this matter. Further, the CORPORATION will not contract or agree in
any manner to represent, to perform or provide any services or take any
remuneration in any form from any private firm or industry group that will or
may create a conflict of interest with that of the FOUNDATION during the term of
this Agreement. Nor will die CORPORATION knowingly undertake to perform or
provide any service to any person or party that will be directly adverse to or
otherwise in conflict with that of the FOUNDATION with reference to this matter.
If any such conflicts exists or should develop, the CORPORATION shall promptly
notify die FOUNDATION thereof. The FOUNDATION shall solely determine if any
conflicts exist fo1 the purposes of this Agreement.
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B. It is understood and agreed that any conflict of interest, as the
FOUNDATION in its opinion may so determine, will be cause for termination
of this Agreement and that any potential conflict of interest, similarly
determined, may be cause for termination hereof -- in either case without
advance notice.
B. Except as expressly provided herein, the CORPORATION shall not be, in
any way, foreclosed from manufacturing, selling, licensing or
otherwise transferring any of its equipment.
ARTICLE VI- INDEMNIFICATION
A. To the full extent permitted by die laws of die State of Virginia, the
Parties agree to indemnify and hold harmless each other, their respective
officers, directors, agents and employees, for any negligent or intentional
acts by one party which result in any loss, damage, or claim against the
other party, and to pay for all legal and other costs the other party might
incur in defending any such action.
B. The CORPORATION shall obtain and maintain all insurance required by law
in accordance with the statutory requirements of the jurisdiction in which
the Agreement will be performed. This insurance shall include, but is not
limited to, Workers' Compensation, Comprehensive General Liability, and/or
Professional Liability in die amount of $1,000,000 and naming the
Foundation as a co-insured. The CONTRACTOR shall provide the Foundation
with a copy of all insurance policies and endorsements.
ARTICLE VII- RELATION OF THE PARTIES
It is understood that the CORPORATION is undertaking to perform the
services described herein as an independent contractor and not as a partner,
joint venturer, employee or agent of the FOUNDATION. The CORPORATION shall
provide a completed IRS Form W-9 (Exhibit B) to FOUNDATION in recognition that
this income shall be reported to the government and an IRS Form 1099 will be
issued. The CORPORATION shall be solely responsible for management and payment
of subcontractors or consultants employed by it to complete die PROJECT. The
CORPORATION agrees not to use subcontractors or consultants listed on the
General Services Administration's "List of Parties Excluded from Federal
Procurement or Nonprocurement Programs."
ARTICLE VII- WAIVER OR BREACH
It is agreed that a waiver or any breach of this Agreement or any terms or
conditions
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thereof shall not be deemed a waiver of any repetition of such breach or in any
way affect any other term or condition hereof. No waiver shall be valid or
binding on a party unless said waiver is in writing and signed by the waiving
party.
ARTICLE IX - NOTICES TO PARTIES
Any notice, request or demand permitted or required by the terms of this
Agreement shall be in writing and shall be given, and shall be deemed to have
been served and received, when a party shall have personally delivered such
notice or deposited such notice, by certified or registered mail, and postage
prepaid, in the United States Government Post Office, addressed to:
As to the FOUNDATION:
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The ATA Foundation, Inc.
▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
TEL: ▇▇▇-▇▇▇-▇▇▇▇
FAX: ▇▇▇-▇▇▇-▇▇▇▇
E-MAIL: ▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇.▇▇▇
As to the CORPORATION:
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Chief Executive Officer
Accident Prevention Plus, Inc.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
TEL: ▇▇▇-▇▇▇-▇▇▇▇
FAX: ▇▇▇-▇▇▇-▇▇▇▇
E-MAIL: ▇▇▇@▇▇.▇▇▇
Any party may, by notice as stated above, designate a different name or
address for any notice, request or demand, required or called for under this
Agreement.
ARTICLE X - MISCELLANEOUS
A. The Period of Performance of this Agreement shall be from August 1, 1999
through December 31, 2001.
B. This Agreement, and the attachments hereto, constitute the entire Agreement
between the
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parties and supersedes any and all prior Agreements, whether written or oral,
with respect to its subject matter.
C. The principal staff for the CORPORATION in this project shall be ▇▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇▇. He shall actively work on the PROJECT throughout the duration of this
Agreement. Any change in personnel by the CORPORATION must have the prior
written approval of the FOUNDATION. In the event of any unauthorized personnel
change, the FOUNDATION may terminate die project upon written notice, effective
immediately upon receipt by the CORPORATION. In the event of termination, the
FOUNDATION shall have no liability to the CORPORATION as of the date of the
unauthorized personnel change.
D. The CORPORATION shall not assign, subcontract, or otherwise transfer any or
all of its responsibilities under this Agreement, except as may be stated in the
proposal, without the prior written consent of the FOUNDATION.
E. All amendments, revisions, changes or modifications to this Agreement must be
in writing and signed by both parties.
F. In the event of a conflict between this Agreement and the Technical Proposal,
this Agreement shall be controlling.
G. In the case of a dispute between the parties arising under this Agreement,
the laws of the Commonwealth of Virginia shall apply, notwithstanding its
conflicts of law principles.
H. The CORPORATION shall comply with Executive Order 11246, "Equal Employment
Opportunity," as amended by Executive Order 11375, "Amending Executive Order
11246 Relating to Equal Employment Opportunity," and as supplemented by
regulations at 41 CFR Part 60, "Office of Federal Contract Compliance Programs,
Equal Employment Opportunity, Department of Labor."
IN WITNESS WHEREOF, the FOUNDATION has caused these presents executed and
the CORPORATION has hereunto set his hand on the dates below.
The ATA Foundation, Inc. Accident Prevention Plus, Inc.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ By: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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Title: Director and COO Title: Chief Executive Officer
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Date: 8-5-99 Date: 8/9/99
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