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Exhibit 10.22
MASTER CONSULTING SERVICES AGREEMENT
This Master Consulting Services Agreement (this "Agreement" which term shall
also include all Work Orders) is made this 14th day of September, 1999 between
INTEGRATED INFORMATION SYSTEMS, INC. ("IIS") located at 0000 X. Xxxxxxxxxxxx
Xxxxxxx, Xxxxx 000, Xxxxx, Xxxxxxx 00000 and XXXXXXX.XXX, CORPORATION, a
Delaware corporation ("Client") located at 000 Xxxxx Xxxxxxxx Xxxxx, Xxxxx,
Xxxxxxx 00000. This Agreement sets forth the terms and conditions under which
IIS will provide services and/or materials to Client.
ARTICLE I DEFINITIONS.
The following terms shall have the following meanings in this Agreement and all
attached Work Orders:
1. "Project" shall mean the totality of services and materials IIS provides to
Client pursuant to a Work Order.
2. "Scope of Work" shall mean the specific services to be rendered by IIS to
Client in furtherance of a Project as defined in a Work Order.
3. "Work Order(s)" shall mean the document(s) that: (i) is numbered for
identification; (ii) details the Scope of Work to be performed by IIS
including all applicable deliverables or other materials to be provided;
and (iii) specifies the applicable hourly rate or fixed price for
performing the Scope of Work. A new Work Order will be required for each
new Project. Each Work Order shall be effective, incorporated into, and
form a part of this Agreement when executed by IIS and Client.
ARTICLE II STAFFING.
1. IIS agrees to furnish consultants qualified to render services in
accordance with the Scope of Work set forth in a Work Order. IIS will use
reasonable efforts to ensure the continuity of its consultants assigned to
a Project but shall have discretion to replace or change members of its
staff working on a Project provided that replacement personnel do not
result in added cost to Client or delay in a Project.
ARTICLE III FEES.
1. IIS will xxxx Client at the rate(s) or in the amount specified in the
applicable Work Order for services and materials rendered by IIS.
2. Client shall be invoiced for expenses incurred by IIS in rendering services
to Client including travel, meals, hotels, car rentals, special insurance
required by Client, mileage, and other applicable expenses. Any individual
expense in excess of $300.00 shall require the prior approval of Client.
IIS's fees do not include any taxes, duties, tariffs or other governmental
charges or expenses imposed in connection with this Agreement and such
taxes shall be billed to Client.
3. IIS's standard hours of operation are Monday through Friday (excluding all
holidays) 8:30 a.m. to 5:30 p.m. For Work Orders performed on an hourly
basis, services rendered by IIS on holidays or during non-standard hours of
operation shall be billed at one and one-half the rates set forth in the
applicable Work Order. Work during non-standard hours is subject to the
prior approval of Client.
ARTICLE IV BILLING AND PAYMENT FOR SERVICES.
1. IIS shall send a written invoice to Client for services rendered and
materials provided every two weeks. Invoices are due upon receipt. Invoices
not paid in full within thirty (30) days of the invoice date shall accrue
interest at the rate of one and one-half percent (1.5%) per month until
paid in full except as to those invoices (or portions of invoices) under
dispute as set forth in subparagraph 2 below. Any amount outstanding for
more than forty-five (45) days after the date of invoice shall constitute a
material breach of this Agreement by Client.
2. If Client has objection to a charge set forth in an invoice, Client shall
send written notice of its objection to IIS, and the reasons therefor,
within twenty (20) days of the date of the invoice being objected to. Upon
receipt of an objection, IIS shall undertake to provide Client with back-up
documentation to support its charge for the services and/or materials in
dispute. If Client does not object to an invoice in writing within twenty
(20) days of the invoice date, Client shall have accepted the charges set
forth therein. Any disputed amounts shall not affect payment of
non-disputed charges and expenses.
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ARTICLE V TERMINATION.
1. Client shall have the right to terminate this Agreement and/or any Work
Order upon fifteen (15) days' prior written notice to IIS. Client agrees to
pay IIS for services performed up to the effective date of termination.
Notice of termination of any Work Order shall not be considered notice of
termination of this Agreement unless specifically stated in the notice.
2. IIS shall have the right to terminate this Agreement and/or any Work Order
upon fifteen (15) days' prior written notice to Client provided that IIS
shall provide all services and materials to Client that Client has paid for
prior to IIS's notice of termination.
3. IIS shall have the right to terminate this Agreement and/or suspend its
services upon three (3) days' prior written notice to Client if any IIS
invoices remain unpaid thirty (30) days after the invoice date.
4. Either party shall have the right to terminate this Agreement upon a
material breach by the other party.
ARTICLE VI NON-SOLICITATION.
1. IIS has invested significant resources in the hiring, education,
development, and training of its employees. Accordingly, Client agrees that
during the term of this Agreement, and for a period of twelve (12) months
following the termination of this Agreement, Client will not directly or
indirectly: (i) hire or employ any of IIS's employees, consultants, or
staff; (ii) hire or employ any former employee of IIS unless such former
employee has not been employed by IIS for at least six (6) months; (iii)
make an offer to or solicit any of IIS's employees to terminate their
employment with IIS; (iv) solicit or receive any services from any of IIS's
employees excluding the services such employees are rendering to Client in
connection with this Agreement; or (v) use, solicit, or receive the
services of any former IIS employee if such employee leaves the employment
of IIS and thereafter becomes employed by any third party that is rendering
services to Client.
2. The parties agree that a breach of this provision will result in damages to
IIS that are difficult to ascertain with certainty. Accordingly, in the
event of a breach of this provision, IIS shall have the right to:
(a) Apply for a temporary restraining order, temporary injunction,
permanent injunction, or other provisional remedy (collectively
"Provisional Remedy") in any court or forum of its choosing. If IIS
does choose to commence an action in court, the parties waive their
right to a trial by jury;
(b) Receive fixed monetary damages for violation of this non-solicitation
provision in the amount of three (3) times the annual salary IIS was
paying to such employee(s) before a violation of this provision was
discovered by IIS;
(c) Collect all costs and damages associated with a violation of this
provision within two (2) weeks of a court's or arbitrator's
finding/order that Client violated this non-solicitation provision
(the "Finding"). The damages will be due even if there exists in such
suit (or other action) issues that were not resolved by the Finding.
Such damages shall be provable by affidavit of an IIS officer or
employee with pertinent knowledge. A Finding can be made following:
(i) any evidentiary hearing; (ii) any motion to dismiss; (iii) any
hearing in connection with IIS's application for a Provisional Remedy;
(iv) any motion for summary judgment; (v) a trial, arbitration, or
other similar dispositive hearing; or (vi) at any other time after
suit is initiated by IIS.
ARTICLE VII CONFIDENTIALITY.
1. The parties agree to retain in confidence all information transmitted to it
by the other party pursuant to this Agreement that the disclosing party
identifies as being proprietary and/or confidential or that, by the nature
of the circumstances surrounding the disclosure, ought in good faith to be
treated as proprietary and/or confidential ("Confidential Information").
Confidential Information includes, but is not limited to: business plans
and designs; customer, vendor, and partner lists; this Agreement and all
Work Orders (including IIS rates); technical, financial and business
information and models; proposed business deals, reports, plans, and market
projections; and software programs, data, source code, and other technical
information. The parties will not make use of such Confidential Information
except under the terms and during the existence of this Agreement. Neither
party will disclose to any third person any Confidential Information
without the express consent of the other party.
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2. Confidential Information does not include information that is: (a) already
in the possession of the receiving party or is known by the receiving party
at the time of receiving the same without breach of any duty owed to the
disclosing party; (b) publicly known through no wrongful act of the
receiving party; (c) rightfully received from a third party, provided the
receiving party complies with any restrictions imposed by any such third
party; or (d) disclosed by the receiving party pursuant to a requirement of
a court order, governmental agency or other applicable law or regulation or
disclosed in connection with any dispute resolution under this Agreement.
ARTICLE VIII LIMITATIONS.
1. IIS makes no warranties with respect to products provided or services
rendered pursuant to this Agreement and disclaims all warranties, express
or implied, including, without limitation, warranties of merchantability,
fitness for a particular purpose, title, and non-infringement.
2. IIS shall not be liable for any incidental, special, punitive, indirect, or
consequential damages, lost or inaccurate data, business interruption, or
lost profits under any contract, tort (including negligence), strict
liability, breach of warranty, or other legal or equitable theory, even if
the remedies provided for in this Agreement fail of their essential purpose
and even if IIS has been advised of the possibility or probability of such
damages. IIS's liability to Client shall not exceed the amount actually
paid by Client to IIS pursuant to the applicable Work Order giving rise to
the dispute.
ARTICLE IX NOTICE.
1. Any notice or other communication required under this Agreement shall be
deemed sufficiently made on the date of delivery if delivered in person or
by overnight commercial courier service with tracking capabilities with
costs prepaid, or five (5) days after the date of mailing if sent by
certified first class U.S. mail, return receipt requested and postage
prepaid, at the address of the parties set forth below or such other
address as may be given from time to time under the terms of this notice
provision:
IIS: Integrated Information Systems, Inc.
Attention: Xxxxx Xxxxxx
0000 Xxxx Xxxxxxxxxxxx Xxxxxxx, Xxxxx 000
Xxxxx, Xxxxxxx 00000-0000
Client: Xxxxxxx.xxx Corp.
Attention: Xxxx Xxxxxxx
000 Xxxxx Xxxxxxxx Xxxxx
Xxxxx, Xxxxxxx 00000
ARTICLE X INDEMNIFICATION.
1. IIS agrees to defend Client against, and pay the amount of any adverse
final judgment (or settlement to which IIS consents) resulting from third
party claim(s) that the computer code or materials (other than a
commercial/off-the-shelf product or pre-existing work of Client) developed
by IIS and provided to Client pursuant to the terms of this Agreement
("Developments") infringe any United States copyright; provided that IIS is
notified promptly in writing of the claim, has the opportunity to assume
sole control over its defense or settlement, and Client provides reasonable
assistance in the defense of the same.
2. In the event IIS or Client receives information concerning a copyright
infringement claim related to the Developments, IIS may, at its expense,
either: (i) procure for Client the right to continue to use the alleged
infringing Developments; or (ii) replace or modify the Developments to make
them non-infringing, in which case Client shall thereupon cease use or
distribution of the alleged infringing Developments.
3. IIS shall have no liability for any infringement claim based on Client's:
(i) specifications, directions, or requirements provided to IIS for such
Developments; (ii) manufacture, marketing, distribution, or use of any
Developments after written notice that Client should cease such activity
due to such a claim; (iii) combination of any Developments with a software
or hardware product, program, or data not supplied by IIS; or (iv)
adaptation, enhancement, or modification of any Developments not performed
by IIS.
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4. Client agrees to defend IIS against, and pay the amount of any adverse
final judgment (or settlement to which Client consents) in connection with
any claims arising under Section 3 above, or claims arising out of the
distribution, marketing, or use of the Developments; provided that Client
is notified promptly in writing of any such claim, and has the opportunity
to assume sole control over its defense or settlement, and IIS provides
reasonable assistance in the defense of the same.
5. Client shall indemnify and hold IIS harmless from and against any and all
claims or causes of action against IIS to the extent such claim or action
is based on a claim that an IIS employee or consultant performing services
at the offices or premises of Client was subject to any physical injury,
mental injury, discriminatory conduct, harassment, or any other actionable
activity by Client, an employee or consultant of Client, or any third party
on Client's premises. Client shall pay the costs and damages, including
attorneys' fees, in respect of such claim provided the Client is given
notice in writing of such claim. Client shall control the defense of such
action.
6. This Article X shall survive any termination of a Work Order or this
Agreement.
ARTICLE XI OWNERSHIP AND LICENSE.
A. General Provisions.
1. Any commercial off-the-shelf product of IIS or a third party
("Commercial Product") which is provided pursuant to this Agreement
shall be licensed to Client according to the terms of the end user
license agreement accompanying such product.
2. All rights in any Code, Documentation, Deliverables, software,
modules, or other specifications developed by or for IIS or Client
independently of this Agreement that are provided pursuant to this
Agreement (hereinafter "Pre-Existing Work") shall remain the sole
property of the party providing the Pre-Existing Work. IIS hereby
grants Client a non-exclusive, perpetual, fully paid-up license to
use, reproduce and modify the Source Code of the IIS Pre-Existing Work
solely for Client's internal use in connection with the Custom
Application. Client hereby grants IIS a non-exclusive license to use,
reproduce and modify any Pre-Existing Work of Client in connection
with the Project.
3. All rights in any Code, Documentation, or the Custom Application
(other than a Commercial Product or Pre-Existing Work) developed by
IIS and provided to Client in the course of performance of this
Agreement (collectively "Developments") shall be owned by Client and
IIS. Client's ownership rights, however, shall not vest until Client
makes all payments to IIS as required by this Agreement. Each party
shall be free to use, enhance, and modify the Developments without any
obligation of accounting or payment of royalties. Client shall use
Developments for its internal purposes only and shall not sell,
market, distribute, or license the Developments to any third party.
Each party shall be the sole owner of any modifications that it makes
based upon Developments.
4. After all IIS Deliverable Invoices and Project Invoices have been paid
and the Warranty period has expired, IIS shall provide Client with the
Source Code for the Custom Application which Client may modify or
enhance for its internal purposes.
5. IIS may sublicense the rights granted hereunder. All rights not
expressly granted are reserved to the parties.
ARTICLE XII MISCELLANEOUS PROVISIONS.
1. Entire Agreement. This Agreement is a complete and exclusive statement of
all the terms and conditions of the agreement among the parties with
respect to the subject matter hereof. This Agreement supersedes and
terminates any previously existing negotiations, understandings, and
agreements that may exist between the parties. This Agreement shall not be
varied, supplemented, qualified or interpreted by any prior course of
dealing between the parties hereto or by any usage of trade.
2. Headings. Headings and captions in this Agreement are for convenience only
and are not to be used to interpret this Agreement.
3. Severability. If any provision of this Agreement is found to be illegal or
unenforceable, then, notwithstanding such finding, this Agreement shall
remain in full force and effect and such provision shall be deemed stricken
or modified to the minimum extent necessary to make it enforceable;
provided, however, that the intent of the parties when entering into this
Agreement is maintained.
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4. Assignment. This Agreement and any rights or obligations hereunder shall
not be assigned by contract or operation of law without the prior written
agreement of both parties except in such case where all or substantially
all of the assets or stock of a party to this Agreement is sold to a third
party and such third party agrees in writing to be bound by the terms and
conditions of this Agreement. Upon prior consent of Client, IIS may use
subcontractors to perform services for Client in connection with a Project.
5. Amendment and Waiver. Except as otherwise expressly provided herein, this
Agreement may only be amended or modified in a writing signed by both
parties. The failure of either party to enforce its rights under this
Agreement at any time for any period shall not be construed as a waiver of
such rights and shall not be deemed a waiver of any right of either party
to insist upon the strict performance of this Agreement.
6. Independent Contractor. IIS shall act as an independent contractor and
shall be responsible for all social security, unemployment, workers'
compensation, and other withholding taxes for all of its employees.
7. Force Majeure. Except for Client's obligation to pay for services/materials
rendered by IIS, if either party is prevented from complying, either
totally or in part, with any of the terms or provisions of this Agreement
by reason of fire, flood, storm, strike, lockout, or other labor trouble,
riot, war, rebellion, accident or other acts of God, then upon written
notice to the other party, the requirements of this Agreement, or the
affected provisions hereof to the extent affected, shall be suspended
during the period of such disability. During such period, the party not
prevented from complying may seek to have its needs (which would otherwise
be met hereunder) met by others without liability hereunder. The party
prevented from complying shall make all reasonable efforts to remove such
disability within thirty (30) days of giving such notice.
8. Compliance with Laws. IIS and Client shall comply with all applicable laws
and regulations with respect to this Agreement. Client acknowledges that
the services provided by IIS and the related software and other materials
are subject to United States export control laws and regulations and Client
confirms that it will not export or re-export them, directly or indirectly,
either to: (i) any countries that are subject to U.S. export restrictions
(currently including, but not necessarily limited to, Cuba, Iran, Iraq,
Libya, North Korea, Syria, and Sudan), or to any national of any such
country; or (ii) any end-user whom Client knows or has reason to know will
utilize them in the design, development, or production of nuclear,
chemical, or biological weapons; or (iii) any end-user who has been
prohibited from participating in U.S. export transactions by any federal
agency of the U.S. government.
9. Governing Law. This Agreement shall be construed pursuant to the laws of
the State of Arizona. Unless waived by IIS, the exclusive jurisdiction and
venue of any action related to this Agreement, including the enforcement of
any arbitration award, shall be the Maricopa County Superior Court, Arizona
and the parties submit to the jurisdiction and venue of such court for the
purpose of any such action.
10. Arbitration. Any dispute, claimed breach, or controversy arising out of or
in relation to this Agreement shall be settled by binding arbitration in
Phoenix, Arizona in accordance with the then-prevailing Commercial
Arbitration Rules of the American Arbitration Association by a single
arbitrator mutually agreed upon by both parties, and applying Arizona state
law without regard to the conflicts of law provisions thereof, or if
applicable, U.S. federal law. The arbitration award shall be final and
binding upon the parties. Notwithstanding the foregoing, either party shall
have the right to seek and obtain appropriate equitable and Provisional
Remedies exclusively in Maricopa County Superior Court, Arizona.
11. Remedies. The rights and remedies of a party set forth herein with respect
to the failure of the other to comply with the terms of this Agreement
(including, without limitation, rights of termination of this Agreement)
are not exclusive, the exercise thereof shall not constitute an election of
remedies, and the aggrieved party shall in all events be entitled to seek
whatever additional remedies may be available in law or in equity.
12. Attorneys' Fees. The prevailing party in any action that arises out of this
Agreement shall be entitled to recover costs and expenses including,
without limitation, reasonable attorneys' fees.
13. U.S. Government Restricted Rights. Any Developments that Client licenses or
acquires under this Agreement for or on behalf of the United States of
America, its agencies and/or instrumentalities, are provided to Client with
Restricted Rights. Use, duplication, or disclosure by the Government is
subject to restrictions as set forth in subparagraph (c)(1)(ii) of The
Rights in Technical Data and Computer Software clause at DFARS 252.227-7013
or subparagraphs
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(c)(1) and (2) of the Commercial Computer clause at 48 CFR 52.227-19, as
applicable. Contractor/manufacturer is IIS, Inc. 0000 X. Xxxxxxxxxxxx
Xxxxxxx, Xxxxx, XX 00000-0000.
14. Counterparts. This Agreement may be executed in two (2) or more
counterparts, each of which shall be deemed an original and all of which
together shall constitute one instrument.
15. Successors and Assigns. Upon mutual consent, the provisions of this
Agreement shall inure to the benefit of, and be binding upon, the parties
and their respective successors and assigns and transferees by operation of
law, whether or not any such person or entity shall have become a party to
this Agreement.
IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement:
INTEGRATED INFORMATION SYSTEMS, Inc. Xxxxxxx.xxx Corp.
By: By:
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Signature Signature
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Name (Print) Name (Print)
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Title Title
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Effective Date Date
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