EXHIBIT 10.2
THE IMPACT GROUP
CONTRACT AGREEMENT
This Contract Agreement (the "Agreement") is made between The Impact Group and
XxXXxxx.xxx, Inc. ("Client"). The effective date of this Agreement is December ,
1999.
1. DESCRIPTION OF SERVICES
Subject to the terms and conditions set forth herein, The Impact Group
shall provide, either directly or in conjunction with such
subcontractors as it may select, the products and services in the
Statement of Work attached hereto as Exhibit A, including all necessary
labor, materials, and services (hereinafter the "Work").
2. FEES AND BILLING
2.1 FEES. In consideration of the Work performed to this
Agreement, Client shall pay The Impact Group all fees due as
set forth in the Statement of Work.
2.2 BILLING AND PAYMENT TERMS. Client will be billed at the time
of shipment of equipment or software, in advance of any
installation fees, and monthly in advance of the provision of
recurring monthly service fees. Payment of such fees will be
due within thirty (30) days of the date of each IM Group
invoice for all labor and materials, and before the first of
the month for monthly service charges. Late payments hereunder
will accrue interest at a rate of one and one-half percent (1
1/2%) per month, or the highest rate allowed by applicable
law, whichever is lower. The Impact Group may discontinue
performance under this Agreement in the event any payment is
not received within thirty days (30) days of the date on which
it is due.
2.3 TAXES. All payments required by this Agreement are exclusive
of all national, state, municipal or other governmental
excise, sales, value-added, use, personal property, and
occupational taxes, excises, withholding taxes and obligations
and other levies now in force or enacted in the future, all of
which Client will be responsible for and will pay in full.
3. CHANGES TO THE STATEMENT OF WORK
Client shall have the right from time to time by written notice to
propose changes in or additions to the Work under the Agreement
("Change Order"), and The Impact Group shall comply, to the extent
feasible, with such Change Order. If The Impact Group determines that
such changes cause an increase in the cost of or time required for
performance of the Work, The Impact Group shall advise Client thereof
and such adjustments shall be reflected in a written Change Order.
In performing the Work, should The Impact Group encounter any concealed
or unknown condition not expressly set forth in this Agreement, which
condition affects the price or schedule for performance of the Work,
the price and the schedule shall be equitably adjusted by the Change
Order to cover all labor, materials and services necessary to carry out
the change. No Change Order shall become effective as a part of this
Agreement, and no changes in the Work shall be initiated, until the
Change Order for additional work shall refer to this Agreement and be
subject to the terms and conditions of this Agreement, and terms and
conditions on Client's purchase order or documents that are
inconsistent or in addition to this Agreement will be void. The Impact
Group may also propose changes in or additions to the Work, and may
proceed with them upon execution by Client and The Impact Group of a
written Change Order.
4. PRODUCT AND SERVICES ACQUIRED ON CLIENT BEHALF
The Impact Group has the right, without Client's written approval, to
acquire and charge Client for reasonable quantities of supplies and
miscellaneous materials to support or accomplish the Work provided
under this Agreement.
5. CONFIDENTIAL INFORMATION; INTELLECTUAL PROPERTY OWNERSHIP; LICENSE
GRANTS
5.1 CONFIDENTIAL INFORMATION.
(a) NONDISCLOSURE OF CONFIDENTIAL INFORMATION. Each party
acknowledges that it will have access to certain confidential
information of the other party's business, plans, Clients,
technology, and products, and other information held in
confidence by the other party ("CONFIDENTIAL INFORMATION").
Confidential Information will include all information in
tangible or intangible form that is marked or designated as
confidential or that, under the circumstances of its
disclosure, should be considered confidential. Confidential
Information will also include, but not be limited to, The
Impact Group Technology ("The Impact Group Technology" means
The Impact Group proprietary, technology. Including The Impact
Group software tools, hardware designs, algorithms, software
(in source and object forms), user interface designs,
architecture, class libraries, objects and documentation (both
printed and electronic), network designs, know-how, trade
secrets and any related intellectual property rights
throughout the world (whether owned by The Impact Group or
licensed to The Impact Group from a third party) and also
including any derivatives, improvements, enhancements or
extensions of The Impact Group Technology conceived, reduced
to practice or developed during the term of this Agreement by
either party that are not uniquely applicable to Client or
that have general applicability in the art.), Client
Technology ("Client Technology" means Client's proprietary
technology, including Client's Internet Operations design,
content, software tools, hardware designs algorithms, software
(in source and object forms), user interface designs,
architecture, class libraries, objects and documentation (both
printed and electronic), know-how, trade secrets and any
related intellectual property rights throughout the world
(whether owned by Client or licensed to Client from a third
party) and also including any derivatives, improvements,
enhancements or extensions of Client Technology conceived,
reduced to practice, or developed during the term of this
Agreement by Client, and the terms and conditions of this
Agreement. Each party agrees that it will not use in any way,
for its own account or the account of any third party, except
as expressly permitted by, or required to achieve the purposes
of, this Agreement, nor disclose to any third party (except as
required by law or to that party's attorneys, accountants and
other advisors as reasonably necessary), any of the other
party's Confidential Information and will take reasonable
precautions to protect the confidentiality of such
information, at least as stringent as it takes to protect its
own Confidential Information.
(b) EXCEPTIONS. Information will not be deemed Confidential
Information hereunder if such information: (i) is known to the
receiving party prior to receipt from the disclosing party
directly or indirectly from a source other than one having an
obligation of confidentiality to the disclosing party; (ii)
becomes known (independently of disclosure by the disclosing
party) to the receiving party directly or indirectly from a
source other than one having an obligation of confidentiality
to the disclosing party; (iii) becomes publicly known or
otherwise ceases to be secret or confidential, except through
a breach of this Agreement by the receiving party; or (iv) is
independently developed by the receiving party. The receiving
party may disclose Confidential Information pursuant to the
requirements of a governmental agency or by operation of law,
provided that it gives the disclosing party reasonable prior
written notice sufficient to permit the disclosing party to
contest such disclosure.
5.2 INTELLECTUAL PROPERTY.
(a) OWNERSHIP. Except for the rights expressly granted herein and
the assignment expressly made in paragraph 5.3(a), this
Agreement does not transfer from The Impact Group to Client
any IM Group Technology, and all right, title and interest in
and to The Impact Group Technology will remain solely with The
Impact Group. Except for the rights expressly granted herein,
this Agreement does not transfer from Client to The Impact
Group any Client Technology, and all right, title and interest
in and to Client Technology will remain solely with Client.
The Impact Group and Client each agrees that it will not,
directly or indirectly, reverse engineer, decompile,
disassemble or otherwise attempt to derive source code or
other trade secrets from the other party.
(b) GENERAL SKILLS AND KNOWLEDGE. Notwithstanding anything to the
contrary in this Agreement, The Impact Group will not be
prohibited or enjoined at any time by Client from utilizing
any skills or knowledge of a general nature acquired during
the course of providing the Services, including, without
limitation, information publicly known or available or that
could reasonably be acquired in similar work performed for
another Client of The Impact Group.
6. WARRANTY AND DISCLAIMER
6.1 PERFORMANCE. The Impact Group warrants that it will perform
the Work in a manner consistent with industry standards
reasonably applicable to the performance thereof. Client will
be deemed to have accepted Work on delivery unless rejected,
in writing, within ten (10) days of delivery.
6.2 NO OTHER WARRANTY. EXCEPT FOR THE EXPRESS WARRANTY SET OUT IN
SECTION 6.1 ABOVE, THE WORK IS PROVIDED ON AN "AS IS" BASIS,
AND CLIENT'S USE OF THE WORK IS AT ITS OWN RISK. THE IMPACT
GROUP DOES NOT MAKE, AND HEREBY DISCLAIMS, ANY AND ALL OTHER
EXPRESS AND/OR IMPLIED WARRANTIES, INCLUDING, BUT NOT LIMITED
TO, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR
PURPOSE, NONINFRINGEMENT AND TITLE, AND ANY WARRANTIES ARISING
FROM A COURSE OF DEALING, USAGE, OR TRADE PRACTICE.
7. LIMITATION OF LIABILITY/EXCLUSIVE REMEDY
7.1 IN NO EVENT WILL THE IMPACT GROUP BE LIABLE FOR ANY SPECIAL,
INDIRECT, INCIDENTAL, OR CONSEQUENTIAL DAMAGES, INCLUDING BUT
NOT LIMITED TO DAMAGES CAUSED BY CLIENT'S FAILURE TO PERFORM
ANY OF ITS RESPONSIBILITIES, OR FOR ANY LOSS OF BUSINESS OR
PROSPECTIVE BUSINESS OPPORTUNITIES, PROFITS, SAVINGS,
INFORMATION, USE OR OTHER COMMERCIAL OR ECONOMIC LOSS, EVEN IF
THE IMPACT GROUP HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH
DAMAGES.
8. INDEMNIFICATION
8.1 CLIENT'S INDEMNIFICATION OF THE IMPACT GROUP. Client will
indemnify, defend and hold The Impact Group, its affiliates
and Clients harmless from and against any and all Losses
resulting from or arising out of any Action brought by or
against The Impact Group alleging, with respect to the Work or
Client's use thereof, infringement or misappropriation of any
intellectual property
rights of any third parties relating to Client Pre-existing
Technology or Client Confidential Information.
9. TERM AND TERMINATION
9.1 TERM. This Agreement and the rights granted hereunder shall
continue until terminated as set forth below.
9.2 TERMINATION. Either party may terminate this Agreement, in
whole or in part, at any time without cause upon thirty (30)
days written notice. If the Agreement is terminated by Client
pursuant to this Section 10.2, The Impact Group shall have no
further responsibility under this Agreement, and Client shall
promptly pay The Impact Group for (I) all Work performed, and
incidental expenses incurred, up to the date of termination,
(ii) any remaining minimum payment commitments through the end
of the Term specified in the Scope of Work, and (iii) any
additional direct costs which The Impact Group incurs as a
result of such termination, including but not limited to the
costs of terminating purchase orders and other contractual
obligations made by The Impact Group to meet its obligations
under this Agreement.
9.3 SURVIVAL. The following provisions will survive any expiration
or termination of this Agreement: Sections 2, 5, 6.2, 7.1, 8,
9.3 and 10.
9.4 MATERIAL BREACH OR DEFAULT. In the event either party shall be
in breach or default of any of the material terms or
conditions of this Agreement (including but not limited to
such party becoming bankrupt or insolvent, suffering a
receiver to be appointed, or making an assignment for the
benefit of creditors) and the defaulting party has not taken
steps to cure such breach or default within ten (10) days
after the receipt of written notice from the non-defaulting
party, then in addition to all other rights and remedies at
law, in equity or otherwise, the non-defaulting party, then in
addition to all other rights and remedies at law, in equity or
otherwise, the non-defaulting party shall have the right to
terminate this Agreement without further charge, obligation or
liability whatsoever to the non-defaulting party; provided,
however, that if Client terminates the Agreement pursuant to
this Section 10.3, Client shall promptly pay The Impact Group
for all Work performed, and incidental expenses incurred, up
to the date of termination, plus any third party services that
Client continues to receive.
10. MISCELLANEOUS PROVISIONS
10.1 FORCE MAJEURE. Except for the obligation to pay money, neither
party will be liable for any failure or delay in its
performance under this Agreement due to any cause beyond its
reasonable control, including act of war, acts of God,
earthquake, flood, embargo, riot, sabotage, labor shortage or
dispute, governmental act, failure of equipment, or failure of
the Internet, provided that
the delayed party: (a) gives the other party prompt notice of
such cause, and (b) uses its reasonable commercial efforts to
correct promptly such failure or delay in performance.
10.2 NON-SOLICITATION. During the term of this Agreement and for
the period ending one (1) year following termination or
expiration of this Agreement in accordance with its terms,
Client agrees that it will not, and will ensure that its
affiliates do not, directly or indirectly, solicit or attempt
to solicit for employment any persons employed by or
contracting with The Impact Group during such period. Client
acknowledges that breach of this provision will adversely
affect The Impact Group and its business and that as a
consequence of such breach Client will pay liquidated damages
to The Impact Group in a sum equal to one hundred percent
(100) of the solicited employees' annual compensation as
offered by Client to such employee.
10.3 GOVERNING LAW; DISPUTE RESOLUTION, SEVERABILITY. This
Agreement is made under and will be governed by and construed
in accordance with the laws of the State of Massachusetts
(except that body of law controlling conflicts of law). Any
dispute relating to the terms, interpretation or performance
of this Agreement (other than claims for preliminary
injunctive relief or other pre-judgment remedies) will be
resolved at the request of either party through binding
arbitration.
10.4 ASSIGNMENT; NOTICES. Client may not assign its rights or
delegate its duties under this Agreement either in whole or in
part without the prior written consent of The Impact Group,
except that Client may assign this Agreement in whole as part
of a corporate reorganization, consolidation, merger, or sale
of substantially all of its assets. Any attempted assignment
or delegation without such consent will be void. The Impact
Group may assign this Agreement in whole or part. This
Agreement will bind and inure to the benefit of each party's
successors and permitted assigns. Any notice or communication
required or permitted to be given hereunder may be delivered
by hand, deposited with an overnight courier, sent by
confirmed facsimile, or mailed by registered or certified
mail, return receipt requested, postage prepaid, in each case
to the address of the receiving party indicated in this
subsection, or at such other address as may hereafter be
furnished in writing by either party hereto to the other. Such
notice will be deemed to have been given as of the date it is
delivered, mailed or sent, whichever is earlier.
Attn: Paulo Mylla Attn: Xxxxxxx X. X'Xxxxx
XxXXxxx.xxx The Impact Group
0000 Xxxxx Xxxxxx Xxx X.X. Xxx 000
Xxxxxx, XX 00000 Xxxxxxxxxx, XX 00000
10.5 RELATIONSHIP OF PARTIES. The Impact Group and the Client are
independent companies and this Agreement will not establish
any relationship of partnership, joint venture, employment,
franchise or agency between The Impact Group and Client.
Neither The Impact Group nor Client will have the power to
bind the other or incur obligations on the other's behalf
without the other's prior written consent, except as otherwise
expressly provided herein.
10.6 MODIFICATIONS; WAIVER. All modifications to this Agreement or
exhibits shall be in writing and signed by a duly authorized
representative of each party. If either party hereto waives or
modifies any term or condition of this Agreement, such action
will not void, waive or change any other term or condition,
nor will the waiver by one party of any default hereunder by
the other constitute the present or future waiver of any other
default hereunder. If any part of this Agreement, for any
reason, is declared to be invalid, it shall be deemed omitted,
and the remainder of this Agreement shall continue in effect
as if the Agreement had been entered into without the invalid
provision.
10.7 ENTIRE AGREEMENT; COUNTERPARTS. This Agreement, including all
documents incorporated herein by reference, constitutes the
complete and exclusive agreement between the parties with
respect to the subject matter hereof, and supersedes and
replaces any and all prior or contemporaneous discussions,
negotiations, understandings and agreements, written and oral,
regarding such subject matter. This Agreement may be executed
in two or more counterparts, each of which will be deemed an
original, but all of which together shall constitute one and
the same instrument. The parties further agree that a signed
facsimile of this Agreement will be deemed an original.
IN WITNESS WHEREOF, the parties have signed this Agreement as of the Effective
Date first set out above.
The Impact Group CLIENT:___________________
By:_________________________ By:________________________
Name:______________________ Name:______________________
Title:_______________________ Title:_____________________
