Exhibit 10.05
PROGRAMING SERVICES AGREEMENT
This Agreement is effective March 27, 2001 by and between Telemarket
Resources International (TRI), having its principal address at 000 Xxxxx 00xx
Xxxxxx, Xxxxx, XX 00000 and Advanced Business Sciences, Inc., a corporation
organized and existing wider the laws of Delaware, having offices at 0000 Xxxxx
000xx Xxxxxx, Xxxxx, XX 00000.
WHEREAS, TRI is a computer software development and consulting
company, also providing consulting services related to computer software, and,
Whereas, CUSTOMER desires to contract with TRI for software development and/or
consulting services;
NOW THEREFORE, in consideration of the above, the parties agree as
follows:
1.0 DEFINITION OF SERVICES
1.1 TRI shall provide software development and/or consulting services
to CUSTOMER as set out in the Statement of Work Attachment(s) A1, and as
supplemented form time-to-time as required by Attachment(s) A2, A3 and any
subsequent Attachment(s) A hereto, as executed by the parties and attached
hereto, and incorporated herein by this reference. TRI shall have no obligation
to provide services unless a written Statement of Work or other written
authorization has been executed by the parties in agreement with this Agreement.
1.2 The term of this Agreement begins March 27, 2001 and shall remain
in force until terminated by either party with one month written notice.
Completion of any specific services shall not terminate this agreement, it being
the intent of the parties to leave this agreement in effect in the event of
future order for services.
2.0 PAYMENT PROCEDURES
2.1 CUSTOMER shall pay TRI programming services fees according to the
rates specified in the Statement of Work ("SOW") attachments(s) attached hereto,
in accordance with TRI's established rates and minimums in effect when the
services are rendered. Authorization for work exceeding forty (40) hours of work
per calendar week is required from the appropriate CUSTOMER Contact and will be
billed at the rates stated for such work in the applicable SOW. Charges will be
invoiced monthly for services rendered and will be payable within fifteen (15)
days from receipt of invoice. Ten percent of each months invoice shall be held
back pending final acceptance upon completion of the project.
2.2 In addition to the payments contemplated above, CUSTOMER shall pay
for all reasonable and customary reimbursable expenses, including travel,
lodging, and subsistence expenses for TRI personnel performing any services away
from TRI's Omaha facility, as well as communication expenses (including but not
limited to telephone, telefax, courier, express mail and dial-up data
transmissions), which are incurred by TRI in the fulfillment of this Agreement,
as specified herein and according to the additional terms and conditions, if
any, in the applicable SOW. TRI will provide receipts to Customer in support of
the reimbursable expenses.
2.3 All charges such as federal, state, municipal or other government
excise, sales, use, or other taxes are the responsibility of CUSTOMER, except
for taxes imposed on TRI's net income.
2.4 With the exception of services disputed in good faith in writing,
payment of invoices submitted to CUSTOMER for services rendered by TRI, shall be
deemed to be Acceptance of the work product and services invoiced.
2.5 Invoices will be due and payable within ten (10) days of receipt.
Past due invoices shall accrue interest ant the rate of 1.5% per month or any
part thereof. Payment shall be made in good U.S. funds.
3.0 CUSTOMER SUPPLIED RESOURCES
CUSTOMER shall make available to TRI such resources under Customer's
control, which are necessary for the Performance by TRI of the services
contemplated hereunder, as identified in any work order.
4.0 WORK PRODUCT
TRI agrees that all material developed, generated or produced by TRI
or TRI Personnel resulting from the provision of Services, including but not
limited to information, documentation, flow charts, diagrams, reports, writings,
both internal and external data ("Work Product") shall be the stile and
exclusive property of CUSTOMER. TRI and TRI personnel shall have no proprietary
interest in the Work Product. TRI agrees that the Work Product is a work
specially ordered and commissioned for use as contribution to a collective work
and is a work made for hire and any materials produced, directly or indirectly,
by TRI or TRI personnel resulting from the provision of Services, shall be the
property of CUSTOMER with the exception of paragraph 4.1.
4.1 Programmer's right to continue to use his "software snippets" and
standard reusable procedures is not affected by this contract. Any software
procedures used by programmer prior to the signing of this contract can be used
by programmer in the future. Software snippets and or standard reusable
procedures may be provided to CUSTOMER in binary format. Company will net
introduce any part of the source code into the Public Domain.
5.0 CONFIDENTIALITY
5.1 Both parties acknowledge that certain material and information
which has or will come into the possession of each party, pursuant to this
Agreement or the performance thereof, consists of the other party's confidential
and proprietary information (the "Confidential Information"), and that any
unauthorized use or disclosure of such confidential Information may cause
irreparable damage or harm to its owner, Written Confidential information shall
be marked to reflect its confidential nature. Orally or visually disclosed
Confidential Information shall be identified as such at the time of disclosure
and, if reduced to writing, shall be appropriately marked to reflect its
confidential nature. Confidential Information may include, without
limitation, software products (in source of object coder versions),
documentation, technical information related to software products, and the
research, development, trade secrets, or business affairs of the parties to this
Agreement, their employees, customers, subsidiaries, affiliates and agents.
Notwithstanding the foregoing, the receiving party shall have no confidentiality
obligation with respect to any information received from the disclosing party
which (i) was known to the receiving party prior to disclosure by the disclosing
party, (II) is lawfully obtained by the receiving party from a third party under
no obligation of confidentiality, (iii) is or becomes generally known or
available other than by me receiving party's unauthorized disclosure, (iv) is
independently developed by the receiving party, or (v) is disclosed to the third
party, without any obligation of confidentiality. Both parties agree to clearly
and completely reproduce all confidential marks and/or legends when copying and
confidential information. The presence of a copyright notice on any Confidential
Information will not constitute publication or otherwise impair the confidential
nature thereof.
5.2 Each party will (i) use the Confidential Information of the other
party exclusively to perform this Agreement, and (ii) take all reasonable
precautions necessary to safeguard the Confidential Information and (b) those
precaution requested from time to time by the other party.
5.3 The party receiving Confidential information pursuant to this
Agreement ("Recipient") will not disclose, in whole or part, any item of the
Confidential Information that the party disclosing Confidential information
pursuant to this Agreement ("Disclosing Party") designates as confidential, to
any individual, entity or other person except to those of Recipient's employees,
consultants, or employees of a third party contracting to provide products or
services to Recipient which involve the use of the Confidential Information who
are contractually obligated or otherwise agree to comply with the use and
non-disclosure restrictions applicable to Recipient under this Agreement.
5.4 The parties acknowledge that any unauthorized use or disclosure of
Confidential Information, received pursuant to this Agreement, by Recipient or
any third party receiving such Confidential Information from Recipient, may
cause irreparable damage to the Disclosing Party or its licensor. If an
unauthorized use or disclosure occurs, the Recipient will immediately notify
Disclosing Party and take, at Recipient's expense, all steps which may be
available to recover the disclosed material and to prevent any subsequent
unauthorized use or dissemination, including availing itself of actions far
seizure and injunctive relief. If Recipient fails to take such steps in a timely
and adequate manner, the Disclosing Party may take such steps in its own name or
Recipient's name, and at Recipient's expense including, but not limited to,
seeking injunctive and equitable relief against Recipient, its employees and
third parties. In any event, Recipient shall be responsible for any disclosure
or breach of confidentiality by any of its employees or by third parties that
gained access to the Confidential Information through Recipient.
5.5 TRI shall indemnify CUSTOMER for any losses directly attributable
to CUSTOMER's Confidential Information being in the possession of any
unauthorized third party as a result of TRI's negligent or intentional acts or
omissions. CUSTOMER shall indemnify TRI for any losses directly attributable to
TRI's Confidential Information being in the possession of any unauthorized third
party as a result of CUSTOMER'S negligent or intentional acts or omissions.
6.0 TERMINATION
6.1 Termination. This Agreement can be terminated by either party on
thirty (30) days written notice to the other party, with the exception that a
breach of section 2.0, section 5.0, or section 9.2 shall be caused for immediate
termination of the Agreement. If this Agreement is terminated for any reason,
each party will promptly return to the other party all Confidential. Information
received from the other party in connection with this Agreement and all copies
or translations thereof. Termination of this Agreement will not terminate
CUSTOMER's obligation to pay TRI for services rendered and reimbursable expenses
incurred under the terms and conditions of this Agreement prior to the effective
date of termination.
6.2 Survival. The obligations of Sections 2.0, 5.0, 6.0, and 9.0 will
survive the termination or expiration of the Agreement
7.0 WARRANTIES
7.1 TRI warrants that the services performed hereunder will be
performed in a workmanlike manner, by personnel reasonably qualified by
experience and expertise to perform their assigned tasks.
8.0 Disclaimers
8.1 THE WARRANTIES CONTEMPLATED BY SECTION 7.0 ABOVE ARE EXCLUSIVE.
TRI MAKES NO OTHER WARRANTIES, EXPRESSED OR IMPLIED, BY OPERATION OF LAW OR
OTHERWISE OF THE SERVICES OR ANY OTHER ITEM FURNISHED UNDER THIS AGREEMENT,
INCLUDING, BUT NOT LIMINTED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND
FITNESS FOR A PARTICULAR PURPOSE.
8.2 UNDER NO CIRCUMSTANCES WILL TRI OR ITS EMPLOYEES, OFFICERS,
DIRECTORS, SHAREHOLDERS OR SUBSIDIARY CORPORATION(S) BE LIABLE FOR ANY
CONSEQUENTIAL, INDIRECT, INCIDENTAL. SPECIAL. OR PUNATIVE DAMAGES, WHETHER
FORESEEABLE OR UNFORESEEABLE, BASED ON CLAIMS OF CUSTOMER OR ITS CUSTOMERS
(INCLUDING, BUT NOT LIMITED TO, CLAIMS FOR LOSS OF DATA, GOODWILL, PROFITS, USE
OF MONEY OR THE USE OF PRODUCTS, INTERRUPTION IN USE OR AVAILABILITY OF DATA,
LIMITATION, STOPPAGE OR OTHER WORK OR IMPARIMENT OF OTHER ASSETS), ARISING OUT
OF BREACH OF FAILURE OF EXPRESS OR IMPLIED WARRANTY, BREACH OF CONTRACT,
MISREPRESENTATION, NEGLIGENCE, STRICT LIABILITY IN TORT OR OTHERWISE. IN NO
EVENT WILL THE AGGREGATE LIABILITY WHICH PLANET AND ITS RELATED PERSONS AND
COMPANIES MAY INCUR IN ANY ACTION OR PROCEEDING EXCEED THE TOTAL AMOUNT THAT
CUSTOMER HAS ACTUALLY PAID TO PLANET.
9.0 MISCELLANEOUS
9.1 CUSTOMER and TRI agree that during the term of any work order and
for a period of six (6) months after completion of any work order under this
Agreement, Customer and TRI agree not to hire as an employee or a consultant any
employee of the other party, unless modified by the parties under a SOW.
9.2 In the event that either party shall cease conducting business,
becomes insolvent, make a general assignment for the benefit of creditors,
suffer or permit the appointment of a receiver for its business assets, or shall
avail itself of or become subject to. any proceeding under applicable bankruptcy
laws or any statue relating to the insolvency or the protection of rights of
creditors, then at the option of the other party this Agreement shall terminate
and any property or rights of such other party, tangible or intangible, shall
forthwith be returned to it.
9.3 Neither party shall be responsible for delays resulting from acts
beyond its control. Such acts shall include, but not be limited to, acts of God,
strikes, blackouts, riots, acts of war, epidemics, governmental regulation,
fire, communication line failure, earthquakes or other disasters.
9.4 No party may commence action under this Agreement more than one
(1) year after the occurrence of an event of default, or in the event such
default is not discoverable by the injured party when it has occurred, more than
one (1) year after such default could, and in the exercise of due diligence
would have been discovered.
9.5 This Agreement is not assignable or transferable in any manner,
without the prior written consent of the other party. Any disapproved assignment
or transfer shall be void.
9.6 No amendment to this Agreement shall be effective unless it is in
writing and signed by a duly authorized representative of each party.
9.7 In the event an inconsistency exists between this Agreement and
any SOW, the terms of the SOW shall control, In the case of an SOW with a
termination date which falls after the expiration of this Agreement, the parties
may agree that the SOW (i) will be completed according to the terms and
conditions set forth therein, and (ii) will extend the term of this Agreement
necessary for its completion.
9.8 If any provision of this Agreement is prohibited by or declared
invalid, illegal or unenforceable by any court of competent jurisdiction this
Agreement shall be considered divisible as to such provision and all other
provisions of this Agreement shall remain in full force and effect.
9.9 This Agreement shall be governed by and interpreted according to
the laws of the State of Nebraska, U.S.A., except its conflict of law principles
which are hereby excluded.
9.10 CUSTOMER agrees that any consulting services or other "work
product" including, but not limited to, business plans, reports, designs and
software, disputed in good faith in writing,
shall be deemed to be unacceptable for use and unfit for CUSTOMER's intended
use. In the event CUSTOMER fails to pay an invoice submitted to CUSTOMER by TRI,
because of a good faith dispute regarding the acceptability of TRI's work
product, CUSTOMER agrees that it shall be precluded from using the disputed work
product until such invoice has been paid in full, Furthermore, CUSTOMIER
acknowledges that TRI shall be entitled to injunctive relief, preventing
CUSTOMER from using, or in an way profiting or allowing a third party to profit
from the disputed work product delivered hereunder.
9.11 This Agreement shall not be construed to constitute either party
as an employee, attorney-in-fact, franchisee, agent, business partner or legal
representative of the other party.
9.12 Tri or CUSTOMER may publicize the execution of this Agreement
without disclosing its content.
9.13 Any dispute relating to the interpretation or performance of
this contract shall be resolved at the request of either party
through binding arbitration. Arbitration shall be conducted in
Omaha, Nebraska, in accordance with the then-existing rules of
the American Arbitration Association. Judgment upon any award
by the arbitrators may be entered by the state or federal
court having jurisdiction. The parties intend that this
agreement to arbitrate be irrevocable.
IN WITNESS WHEREOF, CUSTOMER and TRI have caused this Agreement to be executed
by the duly authorized representative:
ATTACHMENT(S):
STATEMENT(S) OF WORK, A1 (AND SUBSEQUENT A#'S)
