SUBCONTRACTOR AGREEMENT
THIS AGREEMENT is made this 1st day of July, 1996
(hereinafter referred to as the "Effective Date"), by and between
BRIDGTON, INC., a corporation organized and existing under the
laws of the State of Georgia and having a principal place of
business at 000 Xxx Xxxxxx Xxxxx, Xxxxx X-0, Xxxxxxx, Xxxxxxx
00000 (hereinafter referred to as "Company"), and DELSOFT
CONSULTING, INC., a corporation organized and existing under the
laws of the State of Georgia and having a principal place of
business at 000 Xxx Xxxxxx Xxxxx, Xxxxx X-0, Xxxxxxx, Xxxxxxx
00000 (hereinafter referred to as "Subcontractor").
W I T N E S S E T H:
WHEREAS, the Company is engaged in the business, among other
things, of providing professional consulting services; and
WHEREAS, the Company has contracted, or will contract, with
various third parties (the "Customers") to perform certain
professional consulting services (the "Work"); and
WHEREAS, the Company is desirous of receiving the
Subcontractor's technical assistance, support and/or know-how to
perform the Work for the Company's Customers; and
WHEREAS, the Subcontractor is desirous of providing such
technical assistance, support and/or know-how to the Company's
Customers; and
WHEREAS, the parties hereto deem it to be in their best
interests to set forth in writing the terms and conditions under
which said agreement is to be made;
NOW, THEREFORE, in consideration of the mutual promises and
covenants of the parties contained herein, the parties agree as
follows:
ARTICLE I
DEFINITIONS
As used throughout this Agreement, the following terms shall
have the meanings set forth below unless otherwise indicated:
(a) "Company" shall mean Bridgton, Inc. all business
entities with which it is or has been affiliated, together with
any predecessor, successor, parent, or subsidiary entity as well
as any officers, directors, employees, agents, designees,
assignees, representatives, or any other person acting or
purporting to act on behalf of the Company or any such other
business entity previously described herein.
(b) "Subcontractor" shall mean Delsoft Consulting, Inc.,
all business entities with which it is or has been affiliated,
together with any predecessor, successor, parent, or subsidiary
entity as well as any officers, directors, employees, agents,
designees, assignees, representatives, or any other person acting
or purporting to act on behalf of Subcontractor or any such other
business entity previously described herein.
(c) "Party" or "Parties", in its singular or plural form,
shall mean either the Company or Subcontractor or both, as
dictated by the use.
(d) "Subcontractor Personnel" shall mean any and all
employees, agents, designees, representatives, or any other
person acting or purporting to act on behalf of Subcontractor.
(e) "Agreement" shall mean this Agreement, any Exhibits
attached hereto, and any other documents incorporated herein by
reference, including any written amendments to the foregoing
which have been signed by the authorized representatives of the
Parties.
(f) "Order" shall mean a written request by the Company for
services to be provided by Subcontractor under this Agreement.
(g) "Work" shall mean the services to be provided by
Subcontractor to the Company's Customers.
(h) "Documentation" shall include, without limitation, all
manuals, handbooks, maintenance libraries, and any other printed
materials provided to the Subcontractor or Subcontractor by the
Company.
(i) "Customer" shall mean any customer of the Company,
including, without limitation, all business entities with which
it is or has been affiliated, together with any predecessor,
successor, parent, or subsidiary entity as well as any officers,
directors, employees, agents, designees, assignees,
representatives, or any other person acting or purporting to act
on behalf of the Customer or any such other business entity
previously described herein.
ARTICLE II
TERM OF AGREEMENT
SECTION 2.01. DURATION. Subject to the provisions of
Article V herein, the term of this Agreement shall be for an
initial period of one (1) year from the date hereof or until all
Work on any outstanding Order is completed. After the initial
one (1) year term, this Agreement shall automatically renew and
continue for additional one (1) year term or until all Work on
any outstanding Order is completed, unless, and until, terminated
as hereinafter provided.
SECTION 2.02. SCOPE. Subcontractor agrees to perform all
Work requested in an Order from the Company. Subcontractor
expressly acknowledges and agrees that each Order is considered
to be independent of any other Order. Each Order shall be
appended to this Agreement as an addendum hereto and shall
incorporate all terms and conditions of this Agreement by
reference.
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ARTICLE III
RELATIONSHIP OF PARTIES
SECTION 3.01. NON-EXCLUSIVE BASIS. Subcontractor expressly
acknowledges that its contractual relationship with the Company
is non-exclusive. Subcontractor expressly acknowledges and
understands that the Company shall have the right to contract
with other persons, business entities, or otherwise to provide
the same or similar services to the Company's Customers.
SECTION 3.02. RELATIONSHIP. Company and Subcontractor
hereby expressly acknowledge and agree that Subcontractor is an
independent contractor for all purposes.
ARTICLE IV
COMPENSATION
SECTION 4.01. COMPENSATION. Company and Subcontractor
shall negotiate in good faith the fee to be paid to Subcontractor
for the Work to be provided with regard to each Order. If the
Company and Subcontractor mutually agree to the fee to be paid to
Subcontractor for the Work to be provided with regard to each
Order, said fee shall be paid on the fifteenth (15th) day of the
month following the month in which the Work is completed, or upon
receipt of payment for the Work from the Customer, whichever is
later.
SECTION 4.02. INVOICES. Subcontractor shall submit
invoices to the Company for all Work performed by the
Subcontractor and/or Subcontractor Personnel on the last business
calendar day of each month.
ARTICLE V
TERMINATION
SECTION 5.01. TERMINATION BY WRITTEN NOTICE. This
Agreement may be terminated in whole or in part by either Party
upon the giving of written notice to the non-terminating Party at
least thirty (30) days prior to the proposed date of termination.
In the event the Company terminates this Agreement or any Order,
or portion thereof, the Company's liability to Subcontractor
shall be limited to that Work completed by Subcontractor prior to
and including the date of termination.
SECTION 5.02. TERMINATION FOR CAUSE. Notwithstanding the
provisions of Section 5.01 of this Agreement, the Company may
terminate this Agreement at any time for cause, including, but
not limited to, willful violation of any of the terms of this
Agreement; failure of the Subcontractor to complete the Work
within a reasonable time; failure of the Subcontractor to
adequately and/or properly complete the Work; and/or failure to
cure any defect in the Work within twenty (20) days after receipt
of written notice from the Company of such defect. The Company
may terminate Subcontractor under this section by giving written
notice to the Subcontractor whereupon all duties and obligations
of the Company hereunder shall immediately cease.
SECTION 5.03. EFFECT OF TERMINATION. Upon a termination of
this Agreement, however effectuated, the exclusive remedy of the
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Subcontractor shall be limited to payment of that portion of any
fee earned pursuant to any Order hereunder through the last date
any Work was provided by the Subcontractor, it being the
understanding and agreement of the Parties that such payment
shall afford the Subcontractor adequate and full relief on
termination. Subcontractor and/or Subcontractor Personnel shall
return all Documentation and any copies thereof to the Company.
SECTION 5.04. LIQUIDATED DAMAGES. In the event
Subcontractor is terminated pursuant to Section 5.02 herein, the
Parties agree the Company shall, in addition to any other rights
provided for in this Agreement, by law, in equity, or otherwise,
have the right to recover from Subcontractor the costs incurred
by the Company for a replacement Subcontractor to complete the
Work.
It is further agreed by Subcontractor that said amount is a
reasonable estimation by the Parties of the damages the Company
will have suffered by reason of Subcontractor's conduct, actions
and/or inactions, or otherwise, that resulted in the
Subcontractor's termination pursuant to Section 5.02 herein.
ARTICLE VI
INTELLECTUAL PROPERTY INDEMNIFICATION AND DEFENSE
Subcontractor shall defend, at its expense, any claim
(including any suit) brought against the Company alleging that
any Work or other products provided by Subcontractor and/or
Subcontractor Personnel hereunder infringes or misappropriates a
United States patent, copyright, trade secret or other Third
Party proprietary right and shall pay all liabilities, costs and
damages awarded or settled, provided that the Company gives
Subcontractor prompt written notice of such claim, and such
information, reasonable assistance and authority as necessary to
defend or settle the claim. In the defense or settlement of the
claim, or in the event of a final injunction, Subcontractor shall
either obtain for the Company the right to continue using the
Work or other products provided by Subcontractor and/or
Subcontractor Personnel, or replace or modify the Work or other
products provided by Subcontractor and/or Subcontractor Personnel
so it becomes non-infringing while still meeting the requirements
of the Order.
Notwithstanding the above, Subcontractor shall not have any
liability for a claim alleging that the Subcontractor's
and/or Subcontractor Personnels' products or Services
infringes or misappropriates a U.S. patent, copyright trade
secret, or other third proprietary right:
(i) if the allegation results solely from the
Subcontractor's and/or Subcontractor Personnels'
compliance with design specifications furnished
by, or oral or written direction given by, the
Company and not from an exercise of discretion on
the part of the Subcontractor and/or Subcontractor
Personnel in providing such compliance; or
(ii) if the Subcontractor's and/or Subcontractor
Personnels' products or Services alleged to be
infringing is the result of a modification made by
the Company or any third party without
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Subcontractor's prior written consent; or
(iii) if the alleged infringement results from the
incorporation of any third party product into the
Work or other products provided by Subcontractor
and/or Subcontractor personnel by anyone other
than Subcontractor and/or Subcontractor Personnel
where such incorporation was not specified in the
Order; or
(iv) if the alleged infringement relates to the
combination of Subcontractor and third party
products by anyone other than Subcontractor and/or
Subcontractor Personnel, except that where there
would be infringement even in the absence of a
combination, Subcontractor shall be liable for the
infringement that is not based on the combination;
or
(v) if the alleged infringement results from the
Company's use of any third party product not in a
manner provided under the Order; or
(vi) if the trade secret alleged to be misappropriated
consists, in whole or in part, of information
furnished by the Company.
SUBCONTRACTOR AND THE COMPANY DISCLAIM ALL OTHER LIABILITY FOR
MISAPPROPRIATION OR INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS,
TRADE SECRET RIGHTS, OR PROPRIETARY RIGHTS AND FURTHER DISCLAIM
ANY LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES.
ARTICLE VII
INDEMNIFICATION
Subcontractor, at its own expense, shall indemnify and hold
the Company, its directors, officers, employees, agents,
subsidiaries, affiliates, customers, designees, and assignees
harmless from any loss, damage, liability or expense, on account
of damage to property and injuries, including death, to all
persons, arising from any occurrence caused by any act or
omission of Subcontractor or Subcontractor Personnel related to
the performance of this Agreement; provided that Company gives
Subcontractor prompt notice of any and all claims for which
Company expects indemnification and provided that Subcontractor
shall retain authority to control the defense of any and all
claims for which Company may seek indemnification, Subcontractor,
at its expense, shall defend any suit or dispose of any claim or
other proceedings brought against the Company on account of such
damage or injury, and shall pay all expenses, including
attorney's fees, and satisfy' all judgments which may be incurred
by or rendered against the Company.
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ARTICLE VIII
CONFIDENTIAL AND PROPRIETARY INFORMATION
Each Party acknowledges and agrees that any and all
information concerning the other's business is "Confidential and
Proprietary Information," and each Party agrees that it will not
permit the duplication, use or disclosure of any such
Confidential and Proprietary Information to any person (other
than its own employee, agent or representative who must have such
information for the performance of its obligations hereunder),
unless such duplication, use or disclosure is specifically
authorized by the other Party. "Confidential and Proprietary
Information" is not meant to include any information which, at
the time of disclosure, is generally known by the public and any
competitors of the Customer.
ARTICLE IX
MISCELLANEOUS PROVISIONS
SECTION 9.01. GOVERNING LAW. The validity of this
Agreement and any of its terms or provisions, as well as the
rights and duties of the parties to this Agreement, shall be
governed and construed by the laws of the State of Georgia.
SECTION 9.02. ATTORNEYS OR ARBITRATORS FEES. Should either
Party institute any action or proceeding in any court to enforce
any of the provisions hereof, for damages by reason of any
alleged breach of any provision of this Agreement or for the
enforcing of any covenant herein contained, the prevailing Party
shall be entitled to receive from the losing Party such amounts
that the court shall adjudge to be reasonable attorney's fees for
the services rendered the prevailing Party in such action
(including any appeal thereof).
SECTION 9.03. ENTIRE AGREEMENT. This Agreement supersedes
any and all other agreements, either oral or in writing, between
the Parties to this Agreement with respect to its subject matter,
and no other agreement, statement, or promise relating to the
subject matter of this Agreement that is not contained in it
shall be valid or binding.
SECTION 9.04. BINDING EFFECT. This Agreement shall be
binding on the heirs, executors, administrators, legal
representatives, successors, and assigns of the respective
Parties.
SECTION 9.05. WAIVERS AND AMENDMENTS. Any term or
provision of this Agreement may be waived at any time by the
Party that is entitled to the benefits thereof, and any term or
provision of this Agreement may be amended or supplemented at any
time by the mutual consent of the Parties hereto, except that any
waiver of any term or condition, or any amendment or
supplementation of this Agreement must be in writing. A waiver
of any breach or failure to enforce any of the terms or
conditions of this Agreement shall not in any way effect, limit
or waive a Party's rights hereunder at any time to enforce strict
compliance thereafter with every term or condition of this
Agreement.
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SECTION 9.06. SEVERABILITY. The Parties intend and agree
that each covenant and agreement contained herein shall be a
separate and distinct covenant and agreement. If any provision or
condition of this Agreement and/or the application thereof to any
person or entity shall to any extent be declared unenforceable,
the remainder of this Agreement and the application of the entire
Agreement to such persons or entities other than those as to
which such provisions may be unenforceable, shall not be affected
thereby. Each covenant and condition herein shall separately be
valid and enforceable to the fullest extent permitted by law.
SECTION 9.07. NOTICES. Any notice by either Party to the
other shall be valid only if in writing and shall be deemed to be
duly given only when delivered personally or deposited in the
United States Postal Service by registered or certified mail,
return receipt requested, to the following addresses or at such
other addresses as the Parties hereto may designate from time to
time:
If to the Bridgton, Inc.
Company: 000 Xxx Xxxxxx Xxxxx
Xxxxx X-0
Xxxxxxx, Xxxxxxx 00000
If to Delsoft Consulting,
Subcontractor: Inc.
000 Xxx Xxxxxx Xxxxx
Xxxxx 0-0
Xxxxxxx, Xxxxxxx 00000
All notices shall be deemed to be given when deposited in
the United States mail as aforesaid or when personally delivered.
Any Party may from time to time change the address to which to
send notices by notifying the other Party of such change of
address in writing in accordance with the provisions of this
Section 9.07 provided notice of such change of address shall be
effective only upon actual receipt.
SECTION 9.08. BANKRUPTCY. In the event Subcontractor shall
(i) apply for or consent to the appointment of or taking of
possession by a receiver, custodian, trustee, or liquidator of
itself or of all or a substantial part of its property, (ii) make
a general assignment for the benefit of creditors, (iii) commence
a voluntary case under the Federal Bankruptcy Code (as now or
hereinafter in effect), or (iv) fail to contest in a timely or
appropriate manner or acquiesce in writing to any petition filed
against it in an involuntary case under such Bankruptcy Code or
any application for the appointment of a receiver, custodian,
trustee, or liquidation of itself or of all or a substantial part
of its property, or its liquidation, reorganization, or
dissolution, the other Party may terminate this Agreement as
provided in Article V herein.
SECTION 9.09. HEADINGS. The Headings used in this
Agreement are for reference only and shall not be deemed a part
of this Agreement.
SECTION 9.10. LIMITATION OF LIABILITY. Notwithstanding any
other provisions herein to the contrary, under no circumstances
shall either Party be liable to the other for any special,
incidental, indirect or consequential damages under this
Agreement.
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IN WITNESS WHEREOF, the parties have caused this Agreement
to be executed and do each hereby warrant and represent that
their respective signatory whose signature appears below has been
and is on the date of this Agreement duly authorized by all
necessary and appropriate corporate action to execute this
Agreement.
COMPANY: SUBCONTRACTOR:
BRIDGTON, INC. DELSOFT CONSULTING, INC.
By: /s/ Xxxxx Xxxxxxxxx By: /s/ Xxxxxxxx Xxxxxxxxx
Title: President Title: CEO
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