EXHIBIT 10.4
THIRD PARTY CONSULTANT AGREEMENT
This Agreement is made as of December 3, 2000 by and between Aspen
Technology, Inc. ("AspenTech"), a Delaware corporation with offices at Xxx Xxxxx
Xxxx, Xxxxxxxxx, Xxxxxxxxxxxxx 00000-0000, and PRO', INC. ("Consultant"), a
Texas corporation, with offices at 0000 Xx. Xxxxx Xxxxx, Xxxxx 0 0 0, Xxxxxxx,
Xxxxx 00000.
This Agreement governs the terms and conditions for the provision of
general consulting services to be provided by Consultant.
1 . Services. During the term of this Agreement, Consultant will furnish
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consulting services and advice as specifically requested by AspenTech. The
services and advice are within area of Consultant's technical competence, and as
specifically described in Exhibit A attached hereto.
2. Term of Agreement. This Agreement shall have an initial term as set
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forth in Exhibit A commencing on the date hereof and may be renewed for
subsequent periods upon the mutual written consent of the parties.
3. Payment. In consideration of the services to be provided by Consultant
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in accordance with this Agreement AspenTech shall pay Consultant a consulting
fee as set forth in Exhibit A for the duration of the services engagement under
this Agreement. Invoices will be paid within thirty (30) days of receipt.
4. Reimbursement Of Travel Expenses. AspenTech will reimburse Consultant
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for all reasonable expense incurred by Consultant for travel required in
connection with the furnishing of services under this Agreement and approved in
advance by AspenTech. Travel between Consultant's home or office and facilities
of AspenTech are not reimbursable. Reimbursement of travel expenses shall be
made on the basis of itemized statements submitted by Consultant, submitted
according to AspenTech travel policies, and including, whenever possible, actual
bills, receipts, or other evidence of expenditures.
5. Confidentiality. Each party shall maintain the confidentiality of all
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Proprietary Information of the other party and third party Proprietary
Information with the same degree of care used to, protect his own proprietary
and confidential information, but IN any event, with not less than a reasonable
degree of care. Proprietary information may include, but is not limited to,
patents applications, trade secrets, processes, formulae, data, specifications,
programs, software packages, test results, technical know-how, methods and
procedures of operation, working
papers, business or marketing plans, customer lists, proposals, and licensed
documentation. This clause shall remain in effect after termination of this
Agreement for the period of three years.
6. Proprietary Rights. All data and working papers, computer programs,
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systems and techniques , in any form, whether patentable or copyrightable or
not, written, invented, or made by Consultant, either solely or jointly, in the
course of the consulting services to be performed under this Agreement
("Developments") will be jointly owned by both parties to this Agreement without
any obligations of accounting between the parties for any data, working papers,
computer programs, systems and techniques, in any form, whether patentable or
copyrightable or not, written, invented, or made by Consultant prior to the
execution of this Agreement ("Pre-existing Materials"), but are delivered to
AspenTech with Deliverables under this Agreement, Consultant hereby grants
AspenTech a nonexclusive, nontransferable, perpetual, royalty-free, worldwide
license to use, copy, modify, make derivative works based on, and distribute the
Pre-Existing Materials internally within AspenTech, its parents and affiliates.
Consultant agrees to notify AspenTech in writing (or email) to Xxxxx Xxxxxxxxxx
before any Pre-existing Materials are incorporated in Deliverables under this
Agreement. This clause shall remain in effect after termination of this
Agreement.
7. Non-Competition. During the term of this Agreement and for a period of
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six
(6) months thereafter, Consultant will not compete with AspenTech without
AspenTech's written permission, which shall not be unreasonably withheld.
"Competing with AspenTech" means (a) soliciting AspenTech's customers with whom
Consultant has dealt with during performance of this Agreement, either (i) to
cease to do business with AspenTech, (b) soliciting any employee of AspenTech to
leave his or her employment with AspenTech or to breach his or her employment
obligations with AspenTech.
8. Warranty.
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8.1. Services. Consultant warrants that all services rendered by Consultant
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under this Agreement shall be performed in a professional, workmanlike manner in
accordance with all applicable industry codes and standards.
8.2. Application Code. As specified in Exhibit A, certain proprietary
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portions of a system, custom software code, application software, and/or
interfaces ("Application Code") may be developed or delivered by Consultant
hereunder. Consultant warrants that the Application Code will operate in
accordance with any agreed written specifications relating specifically
thereto, and will be developed and reviewed in accordance with the following
Year 2000 criteria.
a) The Application Code will not contain hardcoded "l 9" dates;
b) The Application Code will contain 4-character year fields or an
equivalent necessary to operate as a 4-character year field;
c) "00" in a year field will be recognized as the year 2000;
d) Date manipulation, password handling, and date expiration algorithms will
be coded to correctly handle the years 1980 to 2025.
9. Insurance and Indemnification. Consultant shall indemnify and hold
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AspenTech, its employees, agents, and contractors harmless from and against any
and all losses, expenses and claims (including those of third parties) for
death, personal injury, or property damage caused by the negligence or willful
misconduct of Consultant arising out of the performance of the work. Consultant
shall maintain in effect the following policies of insurance during the term of
this Agreement:
9.1. Public liability insurance, properly safeguarding Consultant against
liabilities for death, personal injury, and property damage;
9.2. Employer's liability and xxxxxxx'x compensation insurance as required
under applicable law, provided that the parties agree that AspenTech shall to
the fullest extent permitted under applicable xxxxxxx'x compensation laws be
deemed a statutory employer of Consultant's employees performing work hereunder;
and
9.3. Automobile liability insurance properly safeguarding Consultant against
liabilities for death, personal injury, and property damage arising out of the
use of hired, non-owned.
10. Termination. AspenTech may terminate this Agreement immediately without
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notice in the event Consultant breaches his obligations under Sections 5 or 6.
AspenTech may terminate this Agreement upon ten (1 0) days notice by registered
or certified mail, return receipt requested, addressed to the other party and
AspenTech's sole liability will be to pay for work done by Consultant to date of
termination.
ii. independent Contractor. Consultant will furnish Consultant's services
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as an independent contractor and not as an employee of AspenTech or of any
company affiliated with AspenTech. Consultant will not represent itself as a
partner, joint-venturer, employee or general representative or agent of
AspenTech. Consultant has no power or authority to act for, represent, or bind
AspenTech or any company affiliated with AspenTech in any
manner. Consultant is not entitled to any medical coverage, life insurance,
participation in AspenTech's savings plan, nor any other benefits afforded to
AspenTech's regular employees or those of AspenTech's affiliates. If AspenTech
or any of AspenTech's affiliates is required to pay or withhold any taxes or
make any other payment with respect to fees payable to Consultant, AspenTech
will promptly notify Consultant of this determination and Consultant will
reimburse AspenTech or AspenTech's affiliate in full for taxes paid on amounts
previously paid to Consultant, and permit AspenTech to make deductions for taxes
to be withheld from any sum thereafter due Consultant.
12. Complete Agreement. This Agreement supersedes all prior agreements and
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understandings between the parties with respect to the subject matter hereof and
may not be changed unless mutually agreed upon in writing by both parties.
13. Assignment. Neither party may assign this Agreement, or any interest
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therein, without prior written consent of the other party which will not be
unreasonably withheld.
14. Governing Law. This Agreement shall be governed by and construed in
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accordance with the laws of the State of Texas. The federal and state courts in
the State of Texas shall have exclusive jurisdiction over all claims brought in
connection with this Agreement.
15. Severability. In the event any provision of this Agreement is found to
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be legally unenforceable, such enforceability shall not prevent enforcement of
any other provision of the Agreement.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement effective
the day and year first above written.
ASPEN TECHNOLOGY, INC. PRO2, Inc.
________________________ _______________________
XX Xxxxxxxxxx Xxxxx Xxxxxxxx
Director, Program Management
EXHIBIT A
THIRD PARTY CONSULTANT AGREEMENT
BETWEEN ASPENTECH AND
PRO2, Inc.
(Consultant)
SERVICES TO BE PERFORMED:
Consultant will provide hourly MSP2000 and Project Management consulting
services as outlined below to the Aspentech services organization as MSP2000 is
integrated into the services delivery model.
The MSP2000 consultant will report to the Director of Program Management for
Aspentech and will provide the following functions:
1. Standards Development- with the support of the Director of Program
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Management and the Vertical Business Directors, lead in the development of
Aspentech standards for MSP2000 building from standards and guidelines that
PRO'has developed. The will be done by scheduling and conducting standards
meetings and reviewing Aspentech work processes. Consultant will support
modifying the MSP2000 templates to incorporate standards and guidelines where
possible. The standards and guidelines will be documented and used in the
MSP2000 training programs (see below). The standards should address items such
as:MSP Configuration Standards, Options, Calendars, Task Types, etc.; macro that
delete local tables to insure global standards are consistently used, etc.
Provide support for the development of the MSP2000 standards management.
2. Developing and Conducting Aspen-oriented MSP 2000 Training.- Lead the
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development of MSP2000 training modules that include AspenTech continent
(standards and guidelines). Conduct developed training modules at various
Aspentech locations (Houston, Seattle, Cleveland). It is envisioned that this
will range from 1 or 2 classes per week from mid January to the end of February.
The classes need to be condensed to be done in a 1 to 2 day course. Additional
expert level classes will be conducted for the Project Control Leads (4-6) and
other selected individuals who will support the development of MSP2000
schedules.
3. MENTORINQ & SUPPORT- Provide on-going MSP2000 consulting to help users
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make best use of MSP for specific purposes. Extend the MSP2000 Training by
helping on a one-on-one basis. This will be managed by the Director of Program
Management and will in general, be of secondary priority.
4. PROJECTSTARTUP & SUPPORT- Working with the Project Control Leads,
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help in
the creation of MSP2000 for particular projects/programs.
5. MANAGE & DIRECT CREATIONOF AN INITIAL LIBRARY OF MSP PROJECT TEMPLATES
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Working with various best practice leaders(BPL) and Xxxxxxxx Xxxxxxx, lead in
the development of MSP2000 templates for key technology areas. Assist in the
development of a template storage and management process using the Aspentech
intranet as a distribution and management system.
6. ACT AS A CONTACT DOINT INTO PR02TO LEVERAGE PR02 RESOURCES FOR VISUAL
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BASIS DEVELOPMENT AND SUPPORT.
1) Understand the Aspen Oracle Project Connect (MSP20PA)
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upload interface, 2) Support the OPA2MSP download interface, and 3) support
user-oriented standard MSP macros (Views, grouping, filters). Provide feedback
from standards development, training, and actual use to help streamline MSP2000
by coordinating the development and documenting of macros and other tools. 4)The
on-site PRO2 consultant would be supported from time to time as necessary by
members of the PRO2, Inc. headquarters staff including at least, Xxxx
Xxxxxxxxxx, Xxx XxXxxxxx, Xxxx Xxxxx, and Xxxxx Xxxxxxxx. If there were testing
of various concepts required, the PRO2 servers support several different test
environments that would be provided within the quoted hourly fee for courtesy
testing. If the requirements became significant in terms of resources
supporting the PRO2 Senior Consultant, Aspentech would be contacted to discuss
some additional consideration, but only by mutual consent would there be any
additional charge. Significant resource demand is defined as something more
than an additional man day a week.
The on-site PRO2 Consultant would be able to call the PRO2 Senior Team to
participate in brain-storming sessions, system design sessions, etc. allowing
AspenTech to enjoy the full benefits of the intellectual abilities available at
PRO2 in the area of Project Management systems.
7. DATABASE IMPLEMENTATION ARCHITECTUREL / STRATEGY FOR USE OF SQL SERVER 7
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AS A COMMON REPOSITORY FOR MSP PLANS WITHIN A GROUP / PRACTICE /
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ENTERPRISE working with other PRO2 personnel on separate contract, provide
support in the design and implementation of a SQL Server 7 based MSP2000
repository for Aspentech.
All of the above to be performed on a Time & Expense basis.
COMPENSATION:
- Time and Expense at the rate of US$150 per hour up to a maximum of 480
hours. Additional hours may be authorized by mutual written consent of the
parties to this Agreement.
- Weekly timesheets will be submitted for review and approval. Invoicing
will be on a monthly basis.
TERM:
Three (3) months.
