CONSULTING AGREEMENT
This Consulting Agreement ("Agreement") is entered into as of this
__01__day of April 2000 (the "Effective Date") by Argo, Inc. a Israeli
corporation having its principal place of business at 0 Xxxxxx Xxxxxx, Xxxxxxx,
P. O. Box 1560, Israel tel no 000 0 0000000 ("Argo"or Client") and Altira
Capital & Consulting, LLC, having its principal place of business at 00
Xxxxxxxxx Xxxx, Xxxxxx, Xxx Xxxxxx 00000 ("Altira" or "Consultant").
W I T N E S S E T H :
WHEREAS, Argo, as the Client, desires to engage Altira, as the
Consultant, to provide it with advice in connection with the commercial
evaluation and exploitation of intellectual property; and
WHEREAS, Altira desires to provide such services to Argo.
N O W , T H E R E F O R E ,
In consideration of the mutual promises and considerations set forth in
this document, the Parties agree as follows:
1. Services to be Provided by the Consultant; Duties.
(a) On an on-going basis, and as the Client shall request, the
Consultant
(i) shall provide advice with respect to matters involving
intellectual property, including advice with respect to the feasibility of
inventions and the commercial exploitation thereof; and, in addition,
(ii) the Consultant shall build prototype devices. Or complete
clinical trail.
(b) The Consultant shall provide business and technical development
services to the Client regarding technical, marketing, manufacturing and advice
as specified in a Service Order from time to time submitted by the Firm and
accepted in writing by both Client and Firm. Each Service Order shall be in a
form similar to the one attached as Exhibit A. Any accepted Service Order may be
amended or superseded by any new Service Order only in writing by both Parties
which expressly provides that it amends or supersedes a prior Service Order.
Each and all accepted Service Order shall constitute a part of this Agreement.
(c) Without the prior permission of the Client, the Consultant shall
not communicate with third parties concerning matters as to which the Client has
engaged the Consultant to perform consulting services.
(d) The Consultant will perform the services with reasonable care and
professional skill.
(e) However, the Consultant does not warrant the merchantability or
fitness for use or purpose of the work performed.
Liability of the Parties to Each Other; Indemnification.
(a) Neither Party shall be liable to the other for any acts or
omissions in their performance hereunder except when said acts or omissions are
due to willful misconduct or gross negligence; provided, however, that with
respect to claims by third-parties against either or both of the Client and of
the Consultant,
(i) the Client shall hold the Consultant free and harmless
from any obligations, costs, claims, judgments, attorney's fees and attachments
arising from or growing out of the services rendered by the Client pursuant to
the terms of this Agreement; and
(ii) the Consultant shall hold the Client free and harmless
from any obligations, costs, claims, judgments, attorney's fees and attachments
arising from or growing out of the services rendered by the Consultant pursuant
to the terms of this Agreement.
2. Fees to be Paid to the Consultant by the Client; Retainer; Hourly Expenses;
Objections; Commissions.
(a) The Client shall pay a reasonable fee for services actually
performed for the Client by the Consultant. That fee will be determined by
multiplying the number of hours spent working on the Client's matters by the
billing rate. Time shall be billed in increments of 1/4 of an hour. The
Consultant's hourly billing rate is:
(i) $250.00/hr. for Executive managers/consultants;
(ii) $150.00/hr. for Senior managers/consultants;
(iii) $75.00/hr. for Project managers;
(iv) $50.00/hr. for Senior engineers;
(v) $25.00/hr. General engineers; and
(vi) $15.00/hr/ for technical and engineering support.
(b) Outsource Consultants shall be billed at cost plus 10%. If
performed by the Consultant, Governmental and regulatory work will have a 50%
surcharge. If performed by an Outsource Consultant, the fee shall remain that
Consultant's cost, plus 10%, as set forth above.
(c) The foregoing rates and fees rates may not be increased without at
least thirty (30) days prior written notice and the opportunity for the Client
to terminate this Agreement.
(d) The Consultant's fee shall be calculated by multiplying the number
of hours devoted to the Client's matter(s) (including fractions of hours) by the
then current hourly rate. As used herein, the term "Number of Hours Devoted"
shall mean any time spent by the Firm in dealing with any aspect of the matter
for which the Client has retained the Firm including, but not limited to,
consulting with the Client (in person or by telephone), investigating facts,
conducting research, preparing correspondence, documents, interviewing or
negotiating with others (in person or by telephone), preparing for and
conducting meetings and interviews, and traveling.
(e) In the event that the Client has any objection whatsoever to any of
the fees for services rendered or the costs and disbursements which are billed,
it is the Client's obligation to object in writing thereto within seven (7) days
of receipt of such invoices or statements. Failure of the Client to timely set
forth any such disagreement or objection to any fee for services rendered or
costs incurred shall be considered to be a waiver of any such objections.
(f) The Consultant shall be solely responsible for the payment of all
federal, state, and local taxes or contributions imposed or required under
unemployment insurance, social security and income tax laws that pertain to the
compensation paid to Consultant for its performance of Services under Section 1
of this Agreement.
3. Estimates.
While an estimate or indication of the amount of fees which will likely
be incurred in any particular project may be provided from time to time, such
estimates are not guaranteed amounts, but rather are meant to serve as
guidelines only. Numerous factors on any project may affect those estimates and
require that they be revised. If at any time an estimate for a particular
project has been given to the Client, and it becomes apparent that the actual
hours required for the project will significantly exceed the estimate, the
Client will be informed of that fact and the Client may elect to discontinue
further action. The Client may, at any time, request a written estimate of
projected consulting fees and costs associated with particular requirements or
actions to be undertaken by the Firm
4. Expenses.
(a) The Client agrees to reimburse the Consultant for actual expenses
incurred in the course of activities undertaken by the Consultant pursuant to
Section 1 of this Agreement. These expenses shall include, but not be limited to
travel, shipping, communications, presentation materials and production charges,
as well as such miscellaneous out-of-pocket disbursements, such costs as
photocopying, filing fees, facsimile charges, electronic mail charges, travel
expenses, computer research charges, telephone charges, postage, express mail,
courier, and other expenses.
(b) The Consultant will not commit to nor incur any expense for any one
Service Order in excess of $1,000.00 without the prior approval of the Client.
(c) Within 10 days following the end of each month, the Consultant
shall provide the Client with itemized expense reports describing the nature of
the expense and the project or contact for which the expense was incurred.
(d) Within 20 days following the receipt of the expense report, the
Client shall reimburse the Consultant for it expense, subject to the limitations
set forth above.
5. Duties of Client.
The Client shall cooperate with the Consultant in whatever way is
reasonably necessary for the Consultant to provide the services contemplated
hereunder and shall participate with the Consultant in the handling of the
Clients' matters. Without limiting the foregoing, the Client agrees to respond
with reasonable promptness to telephone calls and other inquiries by the
Consultant, review documents and correspondence, regularly communicate with the
Consultant about the matter in general, including but not limited to any
suggestions, questions or concerns that the Client has. The Client further
covenants to provide all relevant information and documentation available to
Client and requested by the Consultant and necessary for the Consultant to
handle the matter, and the Client acknowledges that failure to do so may result
in an outcome that is less favorable than would otherwise be attainable.
6. Inventions; Works for Hire.
The Client and the Consultant acknowledge that in the course of the
Consultant's employment by the Client, the Consultant may from time to time
create inventions, programs, program modifications, documentation and other
writings or works, including, without limitation, manuals, pamphlets,
instructional materials and other writings or works, including, codes, files,
tapes, or other copyrightable material, or portions thereof, that may be created
within or without the Client's facilities and before, during, or after normal
business hours. All such works authored, written, conceived, originated or
discovered in whole or in part by the Consultant which result from any work
performed for the Client or related to or useful in the business are and shall
be exclusive property of the Client, and the Consultant shall cooperate with the
Client in the protection of all of the Client's intellectual property rights
thereto, and, to the extent deemed desirable by the Client, the filing or
registration of any patents or copyrights. Accordingly, the Consultant hereby
assigns to the Client all of the Consultant's right, title and interest in and
to any and all inventions, processes, systems, and creations, whether or not
patentable or copyrightable, that the Consultant may conceive, develop, create,
or assist in whole or in part, during its engagement by the Client, whether or
not during normal working hours. The Consultant shall sign and deliver all
documents relative to said inventions requested by the Client for the purpose of
confirming the Client's title thereto.
7. Confidential Information.
(a) In connection with the Consultant's performance under this
Agreement, it may be necessary for the Parties to disclose "Confidential
Information" (as the term is defined below) or trade secrets (as the term is
commonly understood to mean) to each other. The Party disclosing such
information (the "Disclosing Party") to the Party receiving such information
(the "Receiving Party") agrees to identify,in writing, such information to the
Receiving Party as confidential upon delivery of such Confidential Information
or trade secrets. Without the prior written consent of the other Party,
Confidential Information or trade secrets shall not be disclosed by either Party
to anyone else or used in any way except in fulfillment of the objectives of
this Agreement; provided, however, that
(i) the obligations of both Parties as specified in this
Section _________ shall not apply to either Party, and neither Party shall have
further obligation to the other, with respect to any Confidential Information or
trade secret which the Receiving Party can demonstrate:
(A) was in the Receiving Party's possession prior to
the time of disclosure by the Disclosing Party; or
(B) was in the public domain at the time of
disclosure, or subsequently became part of the public domain through no fault to
the Receiving Party; or
(C) was legally received from a third party who was
not subject to a confidentiality obligation to the Disclosing Party regarding
the Confidential Information and who was otherwise legally in possession of the
information; or
(D) was independently developed by the Receiving
Party without the use of the Confidential Information disclosed by the
Disclosing Party; or
(E) is sought to disclosed pursuant to the
requirement of a governmental agency or any law requiring disclosure thereof,
provided that the Disclosing Party is given prior written notice of any such
required or demanded disclosure and the opportunity to object to such
disclosure; or
(F) is generally disclosed to third parties by the
Disclosing Party without similar restriction to such third parties; or
(G) is approved for general release by written
authorization of theDisclosing Party.
(b) This Section shall be effective during the term hereof and for two
(2) years after termination of this Agreement for whatever reason and under any
circumstances.
(c) As used in this Section, or elsewhere in this Agreement, the term
"Confidential Information" shall mean and include: All information or material
regarding the Client's business that has or could have commercial value or other
utility to another person or entity, or information which, if disclosed without
authorization, could be detrimental to the business of the Client, including,
but not limited to, the Client's business plans, marketing plans, methods of
operations, products, software programs, documentations of programs, programming
procedures, algorithms, formulas, equipment and techniques, existing and
contemplated services, inventions, systems, devices (where or not patented),
financial information's and practices, plans, pricing, and marketing techniques,
proposals or bids for actual or potential customer, names, addresses and phone
numbers of the Client's Customers, credit information and financial data of the
Client's and the Client's Customers, particular business requirements of the
Client's Customers, and special methods and processes involved in designing,
producing, and selling the Client's products and services, all shall be deemed
Confidential Information and trade secrets and the Client's exclusive property;
provided, however, that Confidential Information shall not include information
that has entered the public domain other than through the actions of the
Consultant.
8. Consultant's Ownership of its own Background Technology.
The Client acknowledges that the Consultant owns or holds a license to
use and sublicense various preexisting technologies, development tools,
routines, subroutines and other programs, data and materials that the Consultant
is not intending to include in the product developed under this Agreement. This
material shall be referred to hereafter as "Background Technology". The
Consultant's Background Technology includes those items identified in Exhibit A
attached hereto, and made a part of this Agreement. The Consultant retains any
and all rights in the Background Technology. Should the Background Technology be
included into Clients products, a separate agreement will be negotiated.
9. Duration of this Agreement; Termination; Payment for Fees and Costs incurred
prior to Termination.
(a) This Agreement shall expire on the third anniversary of the
Effective Date; subject, however, to the Client's right to terminate as set
forth in this contract.
(b) Either Party shall have the right to terminate this Agreement upon
thirty (30) days written notice.
(d) The Client's obligation to pay and reimburse the Consultant for
services already performed and expenses already incurred prior to the
termination or expiration of this Agreement and the obligation upon the relevant
parties to pay royalties under Sections 2(f) of this Agreement and the
performances related thereto under section 4.5, shall survive termination or
expiration of this Agreement
10. Default; Cure.
If, during the term of this Agreement, either Party fails to perform
any of its obligations under this Agreement, the non-defaulting Party may give
written notice of the default to the defaulting Party. If the defaulting party
fails to cure its default within thirty (30) days following receipt of notice of
default, the non-defaulting party may terminate this Agreement.
11. Return of the Client's Records and Property.
Whether termination of this Agreement shall occur by the expiration of
the agreed upon period of time, or otherwise, within 15 days following
termination, the Client shall notify the Consultant that it (the Client) wishes
the Consultant to return any records or property of the Client in the
possession, custody, or control of the Consultant. Such notice shall identify
which of the Client's property is to be returned and shall specify the location
to which it is to be returned. Within 10 days after receiving such a request,
the Consultant shall return the Client's property, in the same condition it was
when it was delivered to the Consultant, normal wear and tear excepted. If the
Client does not send the aforesaid notice of demand of return of property within
said 15 day period, the Consultant shall be entitled to destroy such records and
property, and the Client shall waive any and all claims relating to such
destruction.
12. Law Governing.
This Agreement shall be deemed to have been entered into under the Laws
of the State of New York, and the rights and obligations of the parties
hereunder shall be governed and determined according to the Laws of New York
without regard to applicable conflicts of laws.
13. Resolution of Disputes; Arbitration.
All disputes concerning this Agreement or any claim or issue of any
nature (whether brought by the Parties hereto or by any other person whatsoever)
arising from or relating to this Agreement (including, without limitation,
claims for alleged fraud, breach of fiduciary duty, breach of contract, tort,
etc.) which cannot be resolved within reasonable time through discussions
between the opposing entities, shall be resolved solely and exclusively by means
of arbitration to be conducted in Kings County, New York, which arbitration will
proceed in accordance with the rules of the American Arbitration Association (or
any successor organization thereto) then in force for resolution of commercial
disputes.
The Arbitrators themselves shall have the right to determine and to
arbitrate the threshold issue of arbitrability itself, the decision of the
Arbitrators shall be final, conclusive, and binding upon the opposing entities,
and a judgment upon the award may be obtained and entered in any federal or
state court of competent jurisdiction.
Each entity or Party involved in litigation or arbitration shall be
responsible for its own costs and expenses of any litigation or arbitration
proceeding, including its own attorney's fees (for any litigation, arbitration,
and any appeals).
THE PARTIES EACH UNDERSTAND THAT BY AGREEING TO
BINDING ARBITRATION, BOTH PARTIES ELECT TO WAIVE THE JUDICIAL
PROCESS, INCLUDING BUT NOT LIMITED TO THE RIGHT TO A TRIAL BY
JURY, THE RIGHT TO DISCOVERY, THE RIGHT TO AN APPEAL, AND THE
OTHER JUDICIAL RULES OF PROCEDURE AND EVIDENCE. INSTEAD THE
PARTIES WILL BE BOUND BY THE DECISION OF THE ARBITRATOR WHOSE
DECISION, AFTER AN INFORMAL HEARING INVOLVING NO DISCOVERY AND
MUCH LESS FORMAL RULES OF PROCEDURE AND EVIDENCE, IS FINAL AND
BINDING. BECAUSE ARBITRATION IS SIGNIFICANTLY DIFFERENT FROM
THE JUDICIAL PROCESS AND BECAUSE THE PARTIES GIVE UP A NUMBER
OF RIGHTS IN AGREEING TO UTILIZE ARBITRATION INSTEAD OF THE
JUDICIAL PROCESS, EACH PARTY SHOULD SEEK THE ADVICE OF AN
INDEPENDENT ATTORNEY INCLUDING BUT NOT LIMITED TO, ADVANTAGES,
DISADVANTAGES AND DIFFERENCES BETWEEN ARBITRATION AND THE
JUDICIAL PROCESS BEFORE SIGNING.
14. Notice.
(a) Any notice, request, instruction or other document required by the
terms of this Agreement to be given to any other Party hereto shall be in
writing and shall be given either:
(i) by facsimile transmission to the facsimile number given
below, provided that confirmation of successful receipt thereof by the receiving
Party is recorded on the sending Party's transmission confirmation receipt
simultaneously with the completion of transmission, in which case notice shall
be presumptively deemed to have been given at the date and time displayed on the
sending Party's transmission confirmation receipt showing the successful receipt
thereof by the receiving Party;
(ii) by a nationally recognized overnight courier service in
which the date of delivery is recorded by the courier service, in which case
notice shall be presumptively deemed to have been given at the time that records
of the courier service indicate the writing was delivered to the receiving
Party; or
(iii) by prepaid telegram, in which case notice shall be
presumptively deemed to have been given at the time that the records of the
telegraphic agency indicate that the telegram was telephoned or delivered to the
receiving Party, as the case may be; or
(b) Notice shall be sent
(i) If to the Client, to:
XXX XXXXXX
_________________________, President
Argo, Inc
0 Xxxxxx Xxxxxx,
X. X. Xxx 0000
Xxxxxx
Telephone Number: 000 0 0000000
Facsimile Telephone Number, 000-0-0000000
(ii) If to the Consultant, to:
XXX XXXXX
_________________________, President
Altira Capital & Consulting, LLC,
00 Xxxxxxxxx Xxxx
Xxxxxx, Xxx Xxxxxx 00000
Telephone Number: (000) 0000000
Facsimile Telephone Number (000)0000000
(iii) or to such other address as a Party may have specified
in writing to the other Parties using the procedures specified above in this
Section.
_______. Potential Conflicts of Interest.
The Client acknowledges and agrees that the Consultant presently does,
and may in the future, work for or consult for other persons with whom the
Client does business, contracts or competes. Nothing herein shall be construed
as prohibiting or preventing the Consultant from continuing or commencing such
work for such persons, provided that the Consultant takes adequate steps to
ensure that confidential information of the Client is not divulged or revealed
to such other persons.
15. Force Majeure.
(a) Neither Party hereto shall be liable for any breach of its
obligation hereunder resulting from causes beyond its reasonable control
including but not limited to fire, strikes (excluding their own employees)
insurrection or riots, embargoes, wrecks or delays in transportation, inability
to obtain supplies and raw materials, or regulation of any civil or military
authority.
(b) Each of the Parties hereto agrees to give notice forthwith to the
other upon becoming aware of an event of Force Majeure such notice to contain
details of the circumstances giving rise to the Force Majeure.
_______. Relationship of the Parties.
(a) This Agreement does not constitute either Party as the legal agent
or representative of the other and does not create any joint venture or
partnership relationship; both parties are now acting and will continue to act
as individual parties with respect to this Agreement.
(b) Neither Party is granted the right or responsibility to make any
representation, guarantee or warranty, or to create any obligation, contract or
undertaking on behalf of the other, except as specifically set forth in this
Agreement or an other Agreement entered into between the Parties or as
subsequently authorized in writing by either Party.
_______. Assignment.
The Parties are prohibited by this Agreement from assigning under any
circumstances, in whole or in part, to any person, partnership, firm,
corporation or government agency or entity, their rights under this Agreement
without first obtaining written permission from the other Party.
_______. Government Regulation.
In performing their obligations under this Agreement, the Parties agree
to comply with the provisions of applicable federal, state, local or other
statues, rules, regulations, ordinances and orders. The Parties further agree to
assist each other to comply with such applicable laws with regard to matters
within the scope of this Agreement.
_______. Waiver.
The failure of either Party to enforce at any time any of the
provisions of this Agreement shall in no way be construed to be a present or
future waiver of such provisions, nor in any way affect the right of either
Party to enforce each and every provision thereafter.
_______. Validity of Provisions.
If any provision(s) of this Agreement are or become invalid, are ruled
illegal by any tribunal of competent jurisdiction or are deemed unenforceable
under then current applicable law from time to time in effect during the term
hereof, it is the intention of the Parties that the remainder of this Agreement
shall not be affected thereby. It is further the intention of the Parties that
in lieu of each such invalid, illegal, or unenforceable provision, there shall
be substituted or added as part of this Agreement a provision as was originally
intended by the Parties, but which shall be valid, legal and enforceable.
_______. Integration.
This Agreement, and the Exhibits and Schedules hereto, constitute the
entire Agreement between the Parties related to its subject matter and can only
be subsequently altered or modified by a written instrument which is executed by
both of the parties. This Agreement cancels and supersedes any and all prior
agreements, written or oral, between the Parties relating to the subject matter
of this Agreement.
_______. Headings.
Headings and captions are provided for convenient reference only and
shall not affect the meaning or interpretation of any provision of this
Agreement.
IN WITNESS WHEREOF, the parties have executed this Agreement by their
duly authorized representatives.
The Client:
ARGO, INC.
By:_________________________________
_________________, President
The Consultant
ALTIRA CAPITAL & CONSULTING, LLC.
By:_________________________________
_________________, President
Attest:_____________________________
_________________, Secretary
