Exhibit 10.25
Agreement Number
MASTER PROFESSIONAL SERVICES AGREEMENT
This Master Professional Services Agreement ("Agreement") is effective
this 14th day of May, 1999 and is entered into by and between BellSouth MNS, A
Delaware corporation with a principal place of business at 0000 Xxxxxxx Xxxxxxx
("XXX"), Xxxxxxx, XX 00000 and Predictive Systems with offices located at 00
Xxxxxxx Xxxxx Xxxxx 000 Xxxxxxx, XX 00000 ("Client").
1. Scope of Agreement
This Agreement is intended to be a master agreement under which MNS can place
orders for professional services to be performed by PREDICTIVE SYSTEMS at either
MNS locations or at locations of customers of MNS ("Customers"), in the United
States. MNS and PREDICTIVE SYSTEMS may execute project orders for professional
services under a Statement of Work, a form of which is attached as Exhibit A
("SOW"). PREDICTIVE SYSTEMS will perform the professional services and deliver
the materials as described in the SOW (collectively "Services"). To the extent
of any inconsistency between this Agreement and the SOW, the SOW shall govern.
2. Term
This Agreement shall commence on the effective date specified above and shall
remain in effect for two (2) years thereafter unless terminated earlier pursuant
to this Agreement. Provided however, if there is a SOW for which the parties
have obligations that extend beyond such termination date, the terms of this
Agreement shall continue to apply to the SOW until all obligations have been
satisfied.
3. Independent Contractor
PREDICTIVE SYSTEMS is an independent contractor and nothing in this Agreement or
related to PREDICTIVE SYSTEMS' performance of any SOW shall be construed to
create an employee relationship between MNS and PREDICTIVE SYSTEMS or any
PREDICTIVE SYSTEMS consultant. PREDICTIVE SYSTEMS shall be solely responsible
for (a) payment of applicable taxes, deductions or other payments and benefits
due to or connection with its employees, including, without limitation, federal
and state withholding, social security and unemployment taxes, and any workers'
compensation, pensions and annuities, and (b) all applicable federal and state
employment laws, rules and regulations with respect to such employees; and
PREDICTIVE SYSTEMS shall indemnify MNS and its Customers and hold them harmless
from the same, and any penalties, fines, interest, costs or other obligations
with respect thereto. MNS may, upon written notice, request that PREDICTIVE
SYSTEMS remove or reassign certain personnel based on the individual's skills,
background, performance or failure to perform as determined by MNS.
4. Pricing and Payment Terms
a. Service. MNS shall pay PREDICTIVE SYSTEMS for the Services in accordance with
the rates established in the attached Exhibit "B" or any SOW. In the event of
inconsistency between the rates shown in the SOW and Exhibit "B", the rates
agreed upon in the mutually executed SOW shall govern. Services will be invoiced
on a monthly basis.
b. Expenses. MNS will reimburse PREDICTIVE SYSTEMS for pre-approved, reasonable
and actual expenses in accordance with the PREDICTIVE SYSTEMS Travel and Expense
policy, a copy of which shall be provided to MNS. Expense invoices will include
a summary of expenses by major category. Expenses will be invoiced on a monthly
basis.
c. Payment Terms. Invoices are due within 30 days after receipt. MNS agrees to
pay a late charge of one and one half percent (1 1/2%) per month or the maximum
lawful rate, whichever is less, for all amounts not paid within thirty (30) days
of receipt of invoice.
d. Taxes. MNS shall be responsible for all applicable taxes except for taxes
imposed on the net income of PREDICTIVE SYSTEMS or taxes related to PREDICTIVE
SYSTEMS consultants as stated in Section 3 "Independent Contractor".
5. Warranty
PREDICTIVE SYSTEMS warrants that the Services will be performed in a
professional and workmanlike manner and that they will be in conformance with
the requirements of the SOW. The Services will be deemed to be accepted unless
MNS notifies PREDICTIVE SYSTEMS in writing within sixty (60) days after
performance that the Services did not conform to this warranty. PREDICTIVE
SYSTEMS will promptly correct any non-conformities and will notify MNS in
writing that the non-conformities have been corrected; and the Services will be
deemed to be accepted after thirty (30) days unless MNS notifies PREDICTIVE
SYSTEMS that the non-conformities have not been corrected.
6. Insurance
Throughout the term of this Agreement, PREDICTIVE SYSTEMS will maintain the
following minimum amounts of insurance: (i) workers' compensation, statutory
minimums, (ii) commercial general liability with a minimum of $1,000,000 per
occurrence and $2,000,000 general aggregate; and (iii) automobile liability for
all owned, hired, and non-owned automobiles with $1,000,000 combined single
limit. A certificate of insurance evidencing the above will be presented to MNS
upon request. Each policy shall provide that it will not be canceled or reduced
except upon not less than 30 days notice to MNS.
7. Termination
Either party may immediately terminate this Agreement or any SOW if: (i) the
other party fails to perform its material obligations under this Agreement and
such failure is not corrected within thirty (30) days after receipt of written
notice of the breach from the non-breaching party, or (ii) either party is
appointed a trustee for the benefit of creditors, becomes insolvent, bankrupt or
initiates a voluntary dissolution. In addition either party may terminate any
SOW or any services for a customer upon not less than thirty (30) days advance
written notice.
--------------------------------------------------------------------------------
CONFIDENTIAL Form 0297-001
sjn\forms\mpsa0297 Page 1 of 3
8. Intellectual Property Indemnity
PREDICTIVE SYSTEMS agrees to defend and to indemnify and hold harmless MNS and
its Customers for all costs and expenses associated with the defense or
settlement of any claim that the Service(s) (including, without limitation, any
materials delivered by PREDICTIVE SYSTEMS in connection with the Services)
infringe a patent, copyright, trademark, trade secret or other intellectual
property right and shall pay any judgments or settlements based thereon.,
it being understood that this Section 8 shall not apply to any software or
other work product not furnished by PREDICTIVE SYSTEMS, including without
limitation any commercial software products utilized by TAC (irrespective of
whether Subcontractor performs services relating thereto). Provided, MNS shall
obtain PREDICTIVE SYSTEMS' prior written approval before incurring any expenses
in connection with any such claim and shall give PREDICTIVE SYSTEMS prompt
written notice of the claim, sole control of the proceedings or settlement,
provided that PREDICTIVE SYSTEMS shall keep MNS apprised of the progress of the
claim and will not compromise or settle a claim in a manner which imposes an
obligation or financial liability on MNS or prejudice its legal rights without
MNS's prior written consent and all PREDICTIVE SYSTEMS expense reasonable
cooperation in the defense or settlement negotiations. THIS PARAGRAPH STATES THE
SOLE REMEDY AND LIABILITY OF THE PARTIES FOR ANY CLAIM RELATING TO INTELLECTUAL
PROPERTY RIGHTS INFRINGEMENT OF THE SERVICES.
9. Personnel Indemnity
Each party shall be solely responsible for and shall indemnify and hold the
other party harmless from loss or bodily injury to persons or property (real or
tangible) to the extent the loss or injury is caused by the negligent acts or
omissions or intentional wrongdoing of its employees, subcontractors or agents
(except to the extent caused by the negligent acts, omissions, or intentional
wrongdoing of the other party and its employees, subcontractors or agents) and
arises out of performance of this Agreement; provided the indemnified party
gives the other party prompt written notice of the claim, sole control of the
proceedings or settlement, provided that Indemnifying party shall keep the
indemnified party apprised of the process of the claim and will not compromise
or settle a claim in a manner which imposes an obligation or financial liability
on the indemnified party or prejudice its legal rights without the indemnified
party's prior written consent, and at the cost of the indemnifying party,
reasonable cooperation in the defense or settlement negotiations.
10. Limitation of Liability
IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL
OR CONSEQUENTIAL DAMAGES OF ANY KIND OR NATURE WHATSOEVER ARISING OUT OF OR
RELATED TO THIS AGREEMENT, HOWEVER CAUSED OR ON ANY THEORY OF LIABILITY; EXCEPT
FOR THE INDEMNIGICATION OBLIGATIONS CONTAINED IN THIS AGREEMENT (INCLUDING,
WITHOUT LIMITATION, THE OBLIGATIONS IN SECTIONS 3.8 AND 9 ABOVE), AND EXCEPT FOR
THE OBLIGATIONS UNDER SECTIONS 11 AND 13 BELOW NEITHER PARTY'S LIABILITY EXCEED
TWO TIMES THE VALUE OF THE SERVICES GIVING RISE TO SUCH LIABILITY. THESE
LIMITATIONS SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY
LIMITED REMEDY.
11. Confidential Information
Each party agrees that it shall (i) maintain any proprietary information or
trade secrets ("Confidential Information") received from the other party in
confidence, (ii) exercise at least the same degree of care to safeguard the
Confidential Information of the other party that it uses to safeguard its own
Confidential Information (but no less than reasonable care), (iii) not disclose
the Confidential Information of the other party to any third party, and (iv) use
the Confidential Information of the other party only to exercise its rights and
fulfill its obligations under this Agreement. For purposes of this section the
Confidential Information of MNS shall be deemed to include Confidential
Information of the Customers. All Confidential Information shall be so marked as
confidential or proprietary. Provided that neither party shall have any
obligation with respect to information that (i) is public or becomes known to
the public through no breach of the receiving party, (ii) is independently
developed by the receiving party, (iii) is known to the receiving party prior to
its receipt from the other party, (iv) is rightfully received from a third party
(excluding Customers), or (v) is required to be disclosed by law. (providing
that the disclosing party first gives the other party prior notice of the
required disclosure in order to permit such party (including, without
limitation, Customers) an opportunity to protect its interest).
12. Proprietary Rights
[***]
13. Non-Solicitation
(a). PREDICTIVE SYSTEMS agrees that it will not directly or indirectly,
solicit or recruit the services of any employee of MNS performing services
hereunder, or any employee of its Customers, while such employee is employed by
MNS or its Customers, respectively, and for a period of six months after such
employee has left such employment. MNS agrees that it will not, directly or
indirectly, solicit or recruit the services of any employee of PREDICTIVE
SYSTEMS performing services hereunder, while such employee is employed by
PREDICTIVE SYSTEMS and for a period of six months after such employee has left
the employment of PREDICTIVE SYSTEMS. Provided that a general advertisement or a
request for employment which is initiated exclusively by an employee or
contractor of the other shall not be considered a solicitation pursuant to this
section.
--------
*** Represents material that has been redacted pursuant to a request for
confidential treatment pursuant to Rule 406 under the Securities Act of
1933, as amended. Omitted material for which confidential treatment has been
requested has been filed separately with the Securities and Exchange
Commission.
--------------------------------------------------------------------------------
CONFIDENTIAL Form 0297-001
sjn\forms\mpsa0297 Page 2 of 3
Agreement Number ________________
14. General
a. Entire Agreement. This Agreement and any SOW which is signed by an authorized
representative of both parties constitutes the entire agreement between the
parties and may not be amended except in a writing signed by both parties with
reference to this Agreement. The terms on MNS standard forms including any
purchase order shall not apply to this Agreement.
b. Governing Law. This Agreement shall be governed by the laws of the state of
California, without regard to any conflict of laws provisions.
c. Assignment. Neither this Agreement nor any of the obligations hereunder may
be assigned without the prior written consent of the other. Provided that no
consent shall be required for assignment in conjunction with the sale or merger
of all, or substantially all, of the assets of the party.
d. Notice. Any notice provided hereunder shall be in writing via hand delivery
or mail delivery with confirmation of receipt to the addresses as set forth
above, which may be changed by either party upon written notice.
e. Severability. If any provision of this Agreement is held invalid or
unenforceable, this Agreement shall be modified to the extent required to make
the provision valid and enforceable.
PREDICTIVE SYSTEMS BELLSOUTH MNS, INC.
____________________________________ ____________________________________
Signature Signature
____________________________________ ____________________________________
Print Name Print Name
____________________________________ ____________________________________
Title Title
____________________________________ ____________________________________
Date Date
--------------------------------------------------------------------------------
CONFIDENTIAL Form 0297-001
sjn\forms\mpsa0297 Page 3 of 3
