Exhibit 10.17
PROFESSIONAL SERVICES
SUBCONTRACT AGREEMENT
This Professional Services Subcontract Agreement is entered into by and between
GE IT Solutions/Universal Data Consultants "UDC" and Transformation Processing
Inc. (TPI) "Vendor", with reference to the following facts:
1. Vendor represents that it has expertise in providing classroom software
instruction.
2. UDC desires to acquire, and Vendor desires to provide to UDC and/or to
UDC's customers, Vendor's services ("Services").
3. UDC and Vendor contemplate entering into a number of projects wherein
Vendor will provide such Services as UDC's subcontractor.
4. UDC and Vendor wish to establish the terms and conditions governing those
undertakings.
NOW, THEREFORE, in consideration of the mutual promises and covenants contained
herein, the parties agree as follows:
1. Term and Termination.
(a) This Agreement will commence as of the date first set forth above and
will continue in force thereafter unless terminated in accordance with
the provisions hereof. Notwithstanding the expiration or termination
of this Agreement, the provisions of this Agreement will continue in
full force and effect until each party has fulfilled its obligations
pursuant to any Statement of Work hereunder that is in effect at the
time of such expiration or termination.
(b) This Agreement may be terminated by either party at any time upon
thirty (30) days prior written notice to the other party. UDC may
terminate the Services of Vendor with respect to any particular
Statement of Work issued hereunder upon written notice. In the event
of such termination by UDC, Vendor shall be reimbursed in accordance
with the provisions of paragraph 5 for the proportional work which it
has performed satisfactorily prior to the date of termination.
(c) In the event that either party hereto fails in the performance of its
obligation hereunder or under any Statement of Work hereunder, or
breaches the terms or conditions hereof or of any Statement of Work
hereunder, the other party may, at its option, give written notice to
the party which has failed to perform or has breached this Agreement
or any such Statement of Work of its intention to terminate this
Agreement or such Statement of Work unless such breach or failure in
performance is cured within thirty (30) days of such notice. Failure
to cure
such a breach shall make this Agreement or such Statement of Work
terminable, at the option of the aggrieved party, at the end of such
thirty (30) day period unless notification is withdrawn.
(d) Upon termination of this Agreement pursuant to any provision hereof,
or upon the written request of UDC, Vendor shall return to UDC within
seven (7) days all written or media-stored matter of any type relating
to the subject matter set forth in paragraph 8 below and any other
materials which contain confidential proprietary information of UDC or
its customers. Furthermore, at UDC's sole option, Vendor shall render
Services up and until the date of any such termination as required
hereunder.
2. Scope of Work
(a) Vendor agrees to provide its services from time to time, upon UDC's
request. Such Services will include classroom instruction and related
professional services. UDC may require such Services to be performed
at its customer's location. The Services to be rendered in any
particular project will be defined in a Statement of Work mutually
acceptable to both parties. Each Statement of Work will be signed by
both parties and will be subject to the terms and conditions of this
Agreement, which are herewith incorporated and made a part of each
Statement of Work hereunder.
(b) Vendor agrees to abide by the terms and conditions of a prime contract
between UDC and its end-user customer, provided UDC has disclosed said
terms and conditions to Vendor. In general, UDC will include any
unique or unusual terms as part of the Statement of Work.
3. Manner of Performances. Vendor represents and warrants that the Services
performed hereunder will be of professional quality and will conform to
generally-accepted industry practices. Vendor warrants and represents that
it has the requisite expertise, ability and legal right to render the
Services. Vendor will cooperate fully with UDC in accomplishing the purpose
of the Services and satisfying the needs of the end-user customer. Vendor
recognizes that UDC will rely on any representations made by Vender in
relation to the Services to be provided under this Agreement and may
incorporate such representations in its prime contracts with end-user
customers; as a result time is of the essence in Vendor's performance of
this contract.
4. Price and Payment.
(a) In full consideration for the Services provided for hereunder, UDC
agrees to pay Vender the amounts or at the rates specified in a
Statement of Work hereunder.
(b) In no event will UDC be liable to Vendor for any amounts, including
expenses, in excess of the maximum amount stated in the Statement of
Work.
(c) Unless otherwise expressly agreed and provided in a Statement of Work
issued pursuant hereto, payment will be due net 15 after receipt of
invoice, which invoice shall not be issued until completion of the
Work provided for in each Statement of Work, unless otherwise
specified in the Statement of Work.
5. Non-Solicitation. The parties agree that during the term of this Agreement,
and for a period of twelve (12) months after termination of this Agreement,
neither party shall directly or indirectly solicit for employment, employ
or engage as a consultant any person employed then or within the preceding
one (1) year by the other party and who came in contact with the person
directly or indirectly in the performance of this Agreement. In the event
of any actual or threatened breach of any of the terms of this paragraph 6,
the party who is thereby aggrieved shall have the right to specific
performance and injunction in addition to any and all other rights and
remedies at law or in equity for damages and otherwise, and all such rights
and remedies shall be cumulative.
6. Conflicts of Interest; Authority. Vendor represents and warrants that
neither Vendor nor any officer, partner or principal of Vendor has any
interest or relationships with third parties, including competitors of UDC,
which in any way would present a conflict of interest with the Services or
which in any way would prevent it from carrying out the terms of this
Agreement. Vendor represents and warrants that it has the authority to
enter into this Agreement and to perform the Services hereunder and to
grant UDC the rights set forth herein.
7. Independent Contractor.
(a) Vendor will be an independent contractor and will not be treated as an
employee of UDC for any purpose, including, without limitation, for
the payment of federal, state and local employment and social security
taxes.
(b) UDC shall not be responsible for Vendor's acts while performing
Services hereunder, whether on UDC's premises, or elsewhere, and
Vendor will have no authority to speak for, represent, or obligate UDC
in any way without express written authority.
8. Ownership of Work Product.
(a) For purposes of this Agreement, the term "Work Product" shall mean all
materials and information in tangible form which are developed in
whole or in part pursuant to any Statement of Work under this
Agreement.
(b) All Work Product and any copies thereof, including training material,
reports, designs, programs, tapes, listings, and other programming
originated for and prepared by or for UDC, shall belong exclusively to
UDC. The Work Product will be deemed to be work made for hire under
the United States copyright laws for the sole and exclusive benefit of
UDC. Vendor assigns to UDC any right or
interest it may have or acquire in the Work Product.
(c) Not withstanding the foregoing, any software application product and
associated documentation already owned by Vendor at the time of
execution of any Statement of Work hereunder including any
modifications, extensions or enhancements thereof made by Vendor
("Vendor Proprietary Product") outside of the scope of this Agreement
shall be set forth in the Statement of Work and shall belong
exclusively to Vendor.
(d) Vendor shall not, during the term of this Agreement or thereafter,
assert any rights with respect to any matters set forth in
subparagraphs (a) and (b), above. Vendor will assist UDC to and will
execute all documents reasonably necessary to perfect UDC's rights and
interest in Work Product.
9. Confidentiality.
(a) During the term of this Agreement, each party will consider as
"Confidential Information" any information it obtains in tangible form
from the other party that is designated as, or known to the receiving
party to be, confidential or proprietary.
(b) Each party agrees to receive and maintain all Confidential Information
in strictest confidence, using at least reasonable care, and except as
provided herein, shall not use Confidential Information for its own
benefit or disclose it to third parties without the written consent of
the other party.
(c) The obligations of the parties under this paragraph shall survive the
expiration or termination of this Agreement and shall be binding on
the parties, their successors and assigns.
(d) Neither party shall have any obligations under this Agreement with
respect to information which: (i) is already known to the receiving
party or is publicly available at the time of disclosure: (ii) is
disclosed to the receiving party by a third party who is not in breach
of an obligation of confidentiality; (iii) becomes publicly available
after disclosure through no act of the receiving party; or (iv) is
developed by the receiving party without breach of this Agreement.
10. Hold Harmless; Insurance.
(a) In consideration of this Agreement, Vendor hereby agrees to indemnify
and hold UDC harmless from any and all suits, claims, actions, damages
or losses whatsoever (including attorney's fees) arising from injury
to persons or damage to property which results from any act or
omission of Vendor in its performance hereunder or presence at a UDC
or customer of UDC facility.
(b) During the terms of this Agreement and any Statement of Work
hereunder,
Vendor shall maintain its own (i) Worker's Compensation insurance, as
prescribed by the law of the state in which the Services are
performed, (ii) comprehensive automobile liability insurance, for
bodily injury and property damage, and (iii) comprehensive general
liability insurance.
11. Indemnification. Vendor warrants that the Work Product shall be delivered
to UDC and/or the customer of UDC free and clear of all liens and
encumbrances of any third party. Vendor hereby agrees to indemnify UDC
against and hold harmless of and from any and all claims, actions, damages,
losses, causes of action and liabilities asserted again UDC by third
parties and all costs and expenses (including but not limited to reasonable
attorney's fees) incurred by UDC in connection therewith, arising out of or
in connection with (i) any claim that the use of the Work Product infringes
any patent or copyright or otherwise violates the rights of any third
party, or (ii) Vendor's breach of any of the terms and provisions of this
Agreement, whether related to the Services to be provided by Vendor or any
rights granted to UDC hereunder. This Section shall survive any expiration
or termination of this Agreement.
12. Books and records. Consultant shall maintain accurate books and records of
the hours spent and expenses incurred to be invoiced to UDC hereunder, and
will attach such supporting documentation and receipt to Consultant's
invoices to UDC hereunder.
13. Severability; Headings. If any provision of this Agreement is determined to
be invalid or unenforceable, the remaining provisions of this Agreement
shall not be affected thereby and shall be binding upon the parties hereto,
and shall be enforceable, as though said invalid or unenforceable
provisions were not contained herein. Furthermore, the parties hereto agree
that in the event any provisions shall be determined to be invalid or
unenforceable, such provision shall be limited or curtailed only to the
extent necessary for it to be valid and enforceable. Section headings are
for the convenience of reference only and shall be construed as part of
this Agreement.
14. Notices. Except as otherwise provided in this Agreement, notice required to
be given pursuant to this Agreement shall be effective when received and
shall be sufficient if given in writing, hand delivered, sent by telegraph
or certified mail, postage prepaid, to the parties at the addresses set
forth below or such other address as the parties may designate in
accordance with this paragraph.
15. Entire Agreement. This Agreement is the entire agreement of the parties and
shall supersede all prior agreements and understanding between the parties
respecting the subject matter hereof. This Agreement may not be modified
except in writing signed by duly authorized officers of the parties.
16. Limitation of Liability. EXCEPT WITH RESPECT TO VENDOR'S OBLIGATIONS SET
FORTH IN PARAGRAPHS 10 AND 11 OF THIS AGREEMENT, IN NO EVENT SHALL EITHER
PARTY BE LIABLE, ONE TO THE OTHER, FOR ANY SPECIAL, INCIDENTAL, INDIRECT OR
CONSEQUENTIAL DAMAGES OR FOR THE LOSS
OF PROFIT OR DATA, EVEN IF THE PARTY SHALL HAVE BEEN ADVISED OF THE
POSSIBILITY OF SUCH POTENTIAL LOSS OR DAMAGE.
17. Governing Law. This Agreement is deemed to be made under and shall be
construed according to the laws of the State of Georgia.
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed by
their duly authorized representatives:
GE IT Solutions/Universal Data Transformation Processing Inc.
Consultants
/s/ Xxxxxx Foest
By: /s/ XX Xxxxxx ------------------------------
------------------------------- Xxxxxx Foest
XX Xxxxxx, Groupware Practice Manager, Groupware Consulting
Date: 5/15/97 Date: 5/15/97
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Transformation Processing Inc.
/s/ Xxxx XxXxxx
-------------------------------
Xxxx XxXxxx
VP, Operations and Secretary
Date: 5/15/97
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Addendum to the Value Added Reseller Agreement
This Addendum (the "Addendum") is made to the Standard Software License (the
"Agreement"), dated April 23,1997, to provide certain additional or revised
terms to the Agreement between IntellAgent Control Corporation ("ICC") and
Transformation Processing, Inc. ("TPI"). In the event of any conflict between
the terms of this Addendum and the terms or the Agreement, the terms of this
Addendum shall govern.
In consideration of Business Partner's commitment to staff it's
organization with two dedicated sales associates who's priority it is
to advocate the use of the IntellAgent Control System with clients in
Canada, ICC agrees to increase Business Partner's discount to 45%. This
discount shall be extended to Business Partner for a term of one year,
beginning on November 24, 1997. At the end of each term, this offer
will automatically renew unless notified in writing by ICC thirty (30)
days prior to the end of the term.
IN WITNESS WHEREOF, each of the parties has caused this Addendum to be executed
in duplicate originals by its duly authorized representatives.
IntellAgent Control Corporation TPI
(ICC): (Business Partner)
BY: /s/ Xxxxxx Xxxxxx BY: /s/Xxxx X. XxXxxx
------------------------- -----------------------------
NAME: Xxxxxx Xxxxxx NAME: Xxxx X. XxXxxx
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(Print) (Print)
TITLE: President/CEO TITLE: Executive Vice President
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DATE: 12/15/97 DATE: /s/ November 26, 1997
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