Exhibit 10.13
STANDALONE AGREEMENT FOR CONSULTANT SERVICES
xxxxx.Xxx. Agreement No: [**]
000 Xxxxxxxxxxxx Xxxx Effective Date: [**]
Xxxxxxx, XX 00000
This Standalone Agreement for Consulting Services ("Agreement") is made and
entered into as of the Effective Date above, between American Express Travel
Related Services Company, Inc., having an office at American Express Tower,
World Financial Center, Xxx Xxxx, XX 00000 ("Amexco"), and the Consultant
specified above. It is not a Standard Master Agreement for Consultant Services
and has very modified terms and conditions for a specific user. If used by
another Amexco Entity (as defined herein) besides American Express Travel
Related Services Company, Inc., group it must be reviewed to insure the business
risks are acceptable.
1. SCOPE OF SERVICES - Consultant shall provide, under the provisions of this
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Agreement, the services that are mutually agreed upon and described on
attachments to this Agreement, substantially in the form of the attached Exhibit
1 - Sample ("Schedule"). Each Schedule shall be effective, incorporated into
and form a part of this Agreement when duly executed by both parties. If there
is a conflict between this Agreement and any Schedule, the terms of the Schedule
will govern the provision of the services involved.
2. SCHEDULES - Both time and materials and fixed price Schedules may be entered
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into hereunder. Schedules should be numbered for identification and must
include a complete description of services to be performed, deliverables or
other materials to be produced (the "Deliverables"), the targeted schedule for
completion of each of the foregoing, the applicable fixed price or estimated
time and materials charges, and any additional terms the parties mutually agree
to include. Only Amexco and the subsidiaries and affiliated companies
identified on Exhibit 2 to the Agreement (each, an "Amexco Entity") may enter
into Schedules with Consultant and for purposes of any such Schedule shall be
considered "Amexco" as that term is used herein. Amexco will cause each Amexco
Entity to be bound by the terms of this Agreement, and in each case. Amexco
will remain primarily liable for all obligations of each Amexco Entity arising
under this agreement.
Either party may request changes to the Schedules by preparing and submitting a
written proposal ("Change Authorization"), which sets forth any modifications to
the applicable Schedule, including changes to the specifications, charges,
completion schedule or other terms. A Change Authorization or other written
agreement signed and dated by an authorized representative of both parties is
the only means of modifying the Schedules. When both parties sign the Change
Authorization, the change will become a part of the Schedule. The Change
Authorization will modify and take precedence over any inconsistent terms of
either the Schedule or any previous Change Authorizations.
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[**] INDICATES MATERIAL THAT HAS BEEN OMITTED AND FOR WHICH CONFIDENTIAL
TREATMENT HAS BEEN REQUESTED. ALL SUCH OMITTED MATERIAL HAS BEEN FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 406 PROMULGATED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED.
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3. WORK POLICY/PERSONNEL - For each Schedule, each party will designate a
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Project Manager to serve as the main contact between them. The scope and
specific conduct of Consultant's services, consistent with the Schedule, must be
coordinated with Amexco's Project Manager at all times. Consultant will use its
best efforts to ensure the continuity of Consultant's employees assigned to
perform services under any Schedule. Consultant will provide a list identifying
the Consultant personnel that will be assigned to perform under a Schedule and
copies of their resumes for review and approval by Amexco, which approval will
not be unreasonably withheld. If such approval or disapproval is not received
by Consultant from Amexco within [**] days of Consultant providing such
information to Amexco, such personnel shall be deemed accepted by Amexco. In
the event that Amexco disapproves any such person, then Consultant shall provide
to Amexco copies of all alternate personnel who are trained to provide
professional services for approval by Amexco in accordance with the foregoing
approval process or provide recommended subcontractors. To the extent that none
of Consultant's personnel or Consultant's recommended subcontractors are
satisfactory to Amexco then Consultant may suggest an alternate person in a
subcontracting role to provide such services (provided they are not a competitor
of Consultant and agree to be bound by a non-disclosure per the terms of the
confidentiality provisions hereof) which alternate person is subject to review
and approval by Amexco in accordance with the foregoing approval process. To
the extent that a subcontractor is hired by Consultant to perform the work, such
subcontractor shall be billed in accordance with the same rate schedule and
terms as Consultant's personnel hereunder. In the event that Consultant cannot
provide Amexco with a satisfactory person to perform the work under a Schedule
then Consultant has the right to cancel the Schedule in accordance with the
terms hereof (or alternatively, if Amexco finds its own alternative person to
perform the work under a Schedule, then Amexco or Consultant may cancel such
Schedule) and in the event of either such cancellation, Amexco shall pay
Consultant all fees and expenses due hereunder with respect to such Schedule to
date and Consultant will have no further liability to Amexco with respect
thereto, all subject to Section 8 regarding termination.
In the event that Consultant deems it necessary to change personnel assigned to
perform under any Schedule, and subject to the foregoing section regarding
selection of such personnel, Consultant shall not charge Amexco for a period of
up to [**] ([**]) days for such new personnel during which time provided, if
Amexco agrees that such replacement has acquired the necessary orientation and
background to make a productive contribution in less than [**] ([**]) days.
Consultant shall be entitled to be paid at the customary rates set forth in this
Agreement and the Schedule for such personnel for such portion of the [**]
([**]) days such personnel has been agreed to be a productive contributor by the
parties.
On a periodic basis, as specified on the Schedule, Consultant will submit
written status reports describing its activities during the preceding period,
including: the current status of activities (with an explanatory narrative when
appropriate); resources used since the last report, with a cumulative total to
date; and identification of any problems and actions taken to resolve them.
Upon request, Consultant will meet with Amexco management to review the status
of Consultant's activities.
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[**] INDICATES MATERIAL THAT HAS BEEN OMITTED AND FOR WHICH CONFIDENTIAL
TREATMENT HAS BEEN REQUESTED. ALL SUCH OMITTED MATERIAL HAS BEEN FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 406 PROMULGATED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED.
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Consultant personnel will observe and comply with Amexco's security procedures,
rules, regulations, policies, working hours and holiday schedules, subject to
any expanded rights under a Schedule. Consultant will use commercially
reasonable efforts to minimize any disruption to Amexco's normal business
operations at all times, subject to any expanded rights under a Schedule.
Amexco will provide access to working space, resources, personnel, materials and
such other items as specified on the Schedule. If any Consultant employee
performing services is found to be unacceptable to Amexco for any bona fide
commercially reasonable reason, Amexco shall notify Consultant and Consultant
shall immediately take appropriate corrective action. If Amexco is not
satisfied with Consultant's corrective actions then Amexco has the right to
request an alternate person all subject to the approval process set forth in
Section 3 above. Unless otherwise agreed to in writing, neither party will hire
or solicit the employment of the other party's personnel involved in performance
under any Schedule during the term of the applicable Schedule and for a period
of [**] ([**]) months thereafter.
Amexco is responsible for all back-up of its systems used directly or indirectly
in connection with the services performed hereunder and under the Schedules.
Each party agrees and represents that it is an independent contractor and its
personnel are not agents or employees of the other party for federal tax
purposes or any other purposes whatsoever, and are not entitled to any employee
benefits of the other party. Each party assumes sole and full responsibility
for their acts and each party and its personnel have no authority to make
commitments or enter into contracts on behalf of, bind or otherwise obligate the
other party in any manner whatsoever. Each party is solely responsible for the
compensation of its own personnel assigned to perform services hereunder, and
payment of worker's compensation, disability and other income and other similar
benefits, unemployment and other similar insurance and for withholding income
and other taxes and social security.
4. ACCEPTANCE
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The customized deliverables as identified in Appendix B of the Statement of
Work-E Statement Utility, Interactive Services [**] dated [**] with a revised
date of [**] executed between the parties under this Agreement (the "Initial
Schedule") (the "Customized Deliverable") are subject to acceptance by Amexco
under the following acceptance terms and conditions. In the Initial Schedule,
the parties will mutually agree to the acceptance test criteria for the
Customized Deliverables (the "Acceptance Criteria"). Upon Consultant's
determination that it has completed, implemented and installed a Customized
Deliverable under the Initial Schedule (the "Commencement Date"), Consultant
shall notify Amexco. Amexco shall promptly commence acceptance testing of such
Customized Deliverable with such assistance and support as reasonably necessary
from Consultant personnel (at Consultant's Professional Services Rates and terms
hereunder, which rates are set forth in Section 6 of this Agreement). The
acceptance test shall be conducted for the purpose of demonstrating that the
Customized Deliverable meets the Acceptance Criteria set forth in the Initial
Schedule. Once the Customized Deliverable has successfully passed this
acceptance test, Amexco shall notify Consultant in writing of acceptance of such
Customized Deliverable. If the Customized Deliverable does not meet the
Acceptance
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[**] INDICATES MATERIAL THAT HAS BEEN OMITTED AND FOR WHICH CONFIDENTIAL
TREATMENT HAS BEEN REQUESTED. ALL SUCH OMITTED MATERIAL HAS BEEN FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 406 PROMULGATED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED.
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Criteria, Amexco shall promptly notify Consultant, specifying in
reasonable detail in what respects the Customized Deliverable has failed to meet
such criteria. Consultant shall promptly correct any deficiencies in the
ability of the Customized Deliverable to meet the Acceptance Criteria disclosed
by the acceptance test and Amexco shall promptly repeat the test to determine if
the Customized Deliverable has successfully met the Acceptance Criteria.
Consultant and Amexco shall continue to work together in this manner until the
Acceptance Criteria are met.
Notwithstanding the foregoing, if one or more of the Customized Deliverables
fail to meet the Acceptance Criteria within [**] days (or such longer period as
the parties mutually agree to) of the Commencement Date (the "Target Date").
Amexco shall have the option of (a) receiving an aggregate refund equal to the
lesser of (i) [**]% of the professional services fees under the Initial Schedule
for the Customized Deliverables or (ii) $[**] (such refund right to expire
within [**] days after the end of the aforementioned [**] day period (such date
referred to as the "Refund Period End Date")) plus (b) having no further
obligation to pay Consultant the "[**]% Holdback" (which is an aggregate amount
equal to the lesser of (i) [**]% of the professional services fees under the
Initial Schedule for the Customized Deliverables or (ii) $[**]. With respect to
the Initial Schedule for the Customized Deliverables only, Amexco has the right
to hold back [**]% of each monthly invoice for the Customized Deliverables only
provided however that the total of such [**]% holdbacks for all invoices for the
Customized Product may not exceed the [**]% Holdback. The [**]% Holdback is due
from Amexco to Consultant on the earlier to occur of (i) passage of the
Acceptance Test Criteria and (ii) to the extent that the Acceptance Criteria are
not passed and Amexco foregoes the refund described above, the Refund Period End
Date (as defined above). The foregoing refund and waiver of the [**]% Holdback
shall constitute the sole rights and remedies of Amexco against Consultant for
failure to meet the Acceptance Criteria and Consultant shall have no further
liability to Amexco. Nothing in this paragraph prohibits Amexco from requiring
Consultant to continue to provide professional services under this Agreement and
related Initial Schedule (at and subject to Consultant's professional services
rates and terms hereunder, which rates are set forth in this Agreement) under
which Initial Schedule Licensor will continue to attempt to cause the Customized
Deliverable to meet the Acceptance Criteria (but with Amexco having no rights or
remedies against Consultant should Consultant be unable to do so). Any other
monies due from Amexco to Consultant hereunder shall remain due and payable
whether or not the Acceptance Criteria are met.
Consultant will assist Amexco, at the request of Amexco, in conducting the
foregoing acceptance test at its Professional Services Rates and terms which
rates are set forth in Section 6 of this Agreement. In addition, Consultant has
the right to conduct the foregoing acceptance test at Amexco's site under the
observation of Amexco at its Professional Services Rates and terms which rates
are set forth in Section 6 of this Agreement if Consultant reasonably believes
that the reason that Amexco is unable to pass the acceptance test is due to
operator errors. To the extent that the parties mutually agree as a result
thereof that the acceptance test has been passed, the test shall be deemed
passed and the obligations Amexco related thereto shall apply and Amexco will
have no refund rights under this Section 5. To the extent that the parties
mutually agree as a result thereof that the acceptance test has not been passed,
the test shall be deemed not to have
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[**] INDICATES MATERIAL THAT HAS BEEN OMITTED AND FOR WHICH CONFIDENTIAL
TREATMENT HAS BEEN REQUESTED. ALL SUCH OMITTED MATERIAL HAS BEEN FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 406 PROMULGATED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED.
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been passed and the related results related thereto as set forth in the previous
paragraph shall apply. Nothing in the foregoing sentence prohibits Amexco from
requiring Consultant to continue to provide professional services under this
Agreement and the Initial Schedule (at and subject to Consultant's Professional
Services rates and terms hereunder, which rates are forth in Section 6 of this
Agreement), under which Initial Schedule Licensor will continue to attempt to
cause the Customized Deliverable to meet the Acceptance Criteria (but with
Amexco having no rights or remedies against Consultant should Consultant be
unable to do so). If the parties disagree on the results of the test they have
the right to mutually agree to a neutral third party with industry experience to
review the results of the test and override the decision, if such third party so
determines. To the extent that Consultant determines that Amexco's or any third
party hardware, software or services or other factors are responsible for the
inability of the Customized Deliverable to meet the Acceptance Criteria and
Amexco agrees acting in a commercially reasonable manner in making such
determination) then Consultant shall be deemed to have passed such acceptance
test. Consultant shall have no further obligations with respect thereto to
Amexco, and Amexco shall not have the refund or [**]% Holdback withholding
rights, described above. Nothing in the foregoing sentence prohibits Amexco from
requiring Consultant to continue to provide professional services under this
Agreement and the Initial Schedule (at and subject to Consultant's Professional
Services rates and terms hereunder, which rates are forth in Section 6 of this
Agreement), under which Initial Schedule Licensor will continue to attempt to
cause the Customized Deliverable to meet the Acceptance Criteria (but with
Amexco having no rights or remedies against Consultant should Consultant be
unable to do so).
With respect to any other deliverables under the Initial Schedule other than the
Customized Deliverables and with respect to any deliverables under any other
Schedules, there are no acceptance tests, hold backs or refund rights.
To the extent that Amexco and Consultant mutually agree in writing to a change
in the Initial Schedule related to the specifications and requirements for the
Customized Deliverables then the parties must also mutually agree to the revised
Acceptance Criteria resulting from such change. To the extent that the parties
cannot mutually agree to the revised Acceptance Criteria resulting from such
change then Amexco must elect one of the following: (a) to not proceed with the
updated mutually agreed to Initial Schedule, in which case Consultant would
continue to develop the Customized Deliverables in accordance with the original
specifications and requirements set forth in the Initial Schedule as it existed
before such amendment and conduct acceptance testing on the Customized
Deliverables with the Acceptance Criteria per the terms of this Agreement or (b)
to waive the acceptance testing on the Customized Deliverables under this
Agreement, deem the test passed hereunder and require Consultant to continue to
provide professional services under this Agreement and related amended Initial
Schedule (at and subject to the professional services rates and terms set forth
under this Agreement) to attempt to cause the Customized Deliverables to meet
the specifications in such amended Initial Schedule (but with Amexco having no
rights or remedies against Consultant should Consultant be unable to do so).
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[**] INDICATES MATERIAL THAT HAS BEEN OMITTED AND FOR WHICH CONFIDENTIAL
TREATMENT HAS BEEN REQUESTED. ALL SUCH OMITTED MATERIAL HAS BEEN FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 406 PROMULGATED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED.
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5. OWNERSHIP
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RIGHTS IN WORK PRODUCT. As between Amexco and Consultant, all right, title, and
interest, including copyright interests and any other intellectual property, in
and to the deliverables under the Schedule, including but not limited to
Software (as defined below), data, templates or materials produced or provided
by Consultant under a Schedule (collectively, the Deliverables") shall be the
property of Consultant. "Software" is defined as software (code and
documentation), including but not limited to programs, systems, data definition
files (DDF Files), the application logic files (ALF Files) and active server
pages scripts. Notwithstanding the foregoing, in no event shall Amexco be
deemed to have assigned to Consultant the copyright or other intellectual
property rights in screen templates developed under any Schedule or in
independently developed xxxx layouts and Amexco logos or Amexco billing data
provided to Consultant under this Agreement or otherwise. Amexco agrees that
any technical ideas, feedback or comments provided by Amexco to Consultant with
respect to Deliverables shall also be the property of Consultant.
MODIFICATIONS TO CONSULTANT SOFTWARE PRODUCTS; CUSTOM DEVELOPMENT OF SOFTWARE.
To the extent any Deliverable is Software that is a derivative work of, or an
enhancement, modification, addition or customization to, a Consultant software
product that is under license to Amexco, such Software shall be deemed to be
subject to the terms of the Standalone License Agreement in place between
Consultant and Amexco dated [**] (the "License Agreement") for the Product (as
such term is defined therein) except that there is no warranty or support on the
Software unless purchased by Amexco from Consultant under the License Agreement
(or if no other software product has been licensed by Consultant to Amexco,
Consultant's standard end user software license at the time the Deliverable is
completed), unless otherwise specified in the applicable Schedule.
To the extent any Deliverable which is Software is determined by Consultant to
be a custom development of software, such Software shall be deemed to be subject
to the terms of the License Agreement in place between Consultant and Amexco for
the Product (as such term is defined therein) except that there is no warranty
or support on the Software unless purchased by Amexco from Consultant under the
License Agreement (or if no other software product has been licensed by
Consultant to Amexco, Consultant's standard end user software license at the
time the Deliverable is completed unless otherwise specified in the applicable
Schedule).
DELIVERABLES OTHER THAN SOFTWARE. For all other Deliverables other than
Software, subject to the terms and conditions of this Agreement, Consultant
grants Amexco a non-exclusive, non-transferable license to use such Deliverable
solely in the operation and support of the Schedule. This license shall include
the right to use, and with respect to documentation, copy and distribute
internally only and not to third parties, such Deliverable. The above licenses
in this paragraph do not expand any license Amexco has for Software, including
any Product. Amexco agrees to include the Consultant copyright notice in all
copies Amexco makes of the Deliverable subject to the license grants contained
herein.
COOPERATION. Each party and its personnel shall give the other party, and/or
any designee of the other party, all reasonable assistance and execute all
documents necessary to assist and/or enable
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[**] INDICATES MATERIAL THAT HAS BEEN OMITTED AND FOR WHICH CONFIDENTIAL
TREATMENT HAS BEEN REQUESTED. ALL SUCH OMITTED MATERIAL HAS BEEN FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 406 PROMULGATED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED.
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the other party to perfect, preserve, register and/or record its intellectual
property rights set forth in this Section 5.
Unless otherwise mutually agreed to in writing in a Schedule, the foregoing
states the ownership rights of the parties with respect to the Deliverables. It
is understood however that to the extent that Amexco and Consultant enter into a
Schedule for customized deliverable in the future, then Amexco and Consultant
may mutually agree in writing in such Schedule to ownership rights in those
customized deliverables which are different than those set forth in this
Section, and to the extent that such alternate ownership rights are mutually
agreed to in writing such Schedule, then such Schedule, then such alternate
ownership rights shall govern that customized deliverable under that Schedule
only.
6. CHARGES AND TERMS OF PAYMENT - The applicable fixed prices and/or time and
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materials charges shall be specified on the Schedule. The daily rates charged
to Amexco during the term of this Agreement for Schedule providing for payment
on a time and materials basis shall be as follows (the "Professional Services
Rates"):
PRINCIPAL CONSULTANT - $[**] per day-responsibilities include project
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management, project planning, Internet architecture, EBPP architecture,
business analysis/requirements analysis
SENIOR CONSULTANT - $[**] per day-responsibilities include project
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management, project planning, requirements analysis, Product implementation
CONSULTANT - $[**] per day-a minimum of two years experience in one of the
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disciplines related to BillDirect deployment and modifications (for
example, web hosting, internet based deployment, understanding of internet
based security structures) and responsibilities including requirements
analysis, product implementation.
The Professional Services Rates are subject to a maximum annual increase of
[**]% commencing one year from the Effective Date; provided, in no event shall
any charges at the above rates (or any rate increases per the terms of this
sentence) exceed Consultant's applicable standard published rates.
Notwithstanding anything in this Agreement or a Schedule to the contrary, to the
extent that the site where the services hereunder are being performed is located
outside of the US, then all related pricing shall be increased by [**]% of what
the price would have otherwise been under this Agreement and the relevant
Schedule. All pricing and payments are in US dollars. The Professional
Services daily rates set forth above shall cover the first [**] ([**]) hours of
work on any given day. For services performed on a time and materials basis any
hours worked in excess of [**] ([**]) in any one day or on Saturdays, Sundays or
holidays, shall be billed at an hourly rate equal to the applicable daily rate
hereunder divided by [**]. Amexco also agrees to pay for reasonable out-of-
pocket costs and expenses in accordance with Amexco's travel policy, a copy of
which was provided by Amexco to Consultant, (including, but not limited to,
airfare, ground transportation, lodging and living expenses) required and
actually incurred in performing services, provided that Consultant has: (i)
obtained Amexco's prior written consent: (ii) detailed them on a form acceptable
to Amexco and approved them in
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[**] INDICATES MATERIAL THAT HAS BEEN OMITTED AND FOR WHICH CONFIDENTIAL
TREATMENT HAS BEEN REQUESTED. ALL SUCH OMITTED MATERIAL HAS BEEN FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 406 PROMULGATED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED.
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accordance with Amexco's own expense policies: and (iii) submitted supporting
documentation satisfactory to Amexco: provided, with respect to item (i) of this
sentence, the parties shall specify in each Schedule the destinations to which
travel by Consultant personnel shall be deemed to be consented to in advance.
Amexco will pay all taxes levied against or upon the Deliverables and services
provided hereunder, or arising out of this Agreement, including withholding
taxes (with respect to the Deliverable sonly)), duties and customs charges
imposed on the licensing or use of the Deliverables, and the purchase of
services under this Agreement, exclusive, however, of taxes based on
Consultant's income, which shall be paid by Consultant upon receipt of proof of
payment.
Unless other payment terms are specified on the Schedule, Consultant shall
invoice Amexco: (i) upon Amexco's written acceptance of any Deliverables,
products or work performed on a fixed price basis; or (ii)-as services are
preformed monthly in arrears, for services provided on a time and materials
basis and for out-of-pocket expenses. With respect to the Initial Schedule for
the Customized Deliverables only, item (ii) of the foregoing sentence shall be
subject to the terms and conditions regarding the [**]% Holdback as set forth in
Section 4 hereof. All invoices shall be payable within [**] ([**]) days of
receipt. To the extent that Amexco believes there is an error in any invoice
received from Consultant, Amexco will promptly notify Consultant of such error
and provide Consultant with the requested corrections and back-up, if any.
Provided that Consultant is in agreement with such corrections, Consultant will
promptly reissue the corrected invoice and payment will be due within [**] days
of receipt thereof less the number of days it took Amexco beyond [**] days to
provide Consultant with the requested corrections and back-up. However, Amexco
agrees to pay the completely uncontested amount, if any, of the invoice which
Amexco believes has an error within the original timeframe set forth above.
Consultant will maintain complete and accurate accounting records in connection
with services performed and materials provided hereunder, in accordance with
generally accepted accounting principles, to substantiate its charges.
Consultant will provide Amexco access to such records on [** ([*]) days advance
written notice for audit purposes for [**] ([**]) year from the date of final
payment under each Schedule.
Except for a Firm Fixed Price contract, Amexco understands that any estimates of
professional services fees provided by Consultant to Amexco are estimates only,
that the actual figures may be higher and that Amexco is obligated to make
payments to Consultant for all professional services rendered (plus
reimbursement for expenses) in accordance with the above terms.
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[**] INDICATES MATERIAL THAT HAS BEEN OMITTED AND FOR WHICH CONFIDENTIAL
TREATMENT HAS BEEN REQUESTED. ALL SUCH OMITTED MATERIAL HAS BEEN FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 406 PROMULGATED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED.
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Amexco acknowledges that consultant has provided services with respect to the
Initial Schedule prior to execution of this Agreement. Such services shall be
deemed a part of this Agreement and the Initial Schedule and shall be billed in
accordance with the terms hereof.
7. WARRANTIES: LIMITATION OF LIABILITY -Consultant warrants that: (i) it has
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the authority and the right to enter into this Agreement and each Schedule, to
perform services and provide materials, information and Deliverables hereunder,
and that its obligations hereunder are not in conflict with any other consultant
obligations; (ii) each of its employees has the proper skill, training and
background necessary to accomplish their assigned tasks; (iii) all services will
be performed in a competent and professional manner (iv) neither any
Deliverables, information, or materials, nor the performance of any services by
Consultant infringe upon or violate the rights of any third party.:
To the extent that Consultant licenses to and or develops software for Amexco,
Consultant further warrants that the software has been tested and is fully
capable of providing accurate results using data having date ranges spanning the
twentieth (20th) and twenty first (21st) centuries (e.g. years 1900-2100).
Without limiting the generality of the foregoing, Consultant warrants that all
Deliverables licenses from and or developed by consultant shall (a) manage and
manipulate data involving all dates from the 20th and 21st centuries without
functional or data abnormality related to such dates; (b) manage and manipulate
data involving all dates from the 20th and 21st centuries without inaccurate
results related to such dates; (c) have user interfaces and data fields
formatted to distinguish between dates from the 20th and (c) 21st centuries; and
(d) represent all data related to include indications of the millennium,
century, and decade as well as the actual year (collectively, "Year 2000
Compliant"); provided however that notwithstanding the foregoing, this warranty
is subject to the limitations of remedies set forth in this Section 7 below and
shall not apply to any problems associated with Amexco or third party software,
firmware, products or other technology with which the Product is combined,
exchanges data and/or interoperates. The foregoing warranty is also conditioned
upon Amexco installing the most recently available update, if any, to the
Deliverable which Consultant may provide to Amexco to cause Year 2000
Compliance.
Consultant has not and shall not knowingly insert any code in the Deliverable
which disables or otherwise shuts down all or any portion of any program or
network of Amexco, Consultant shall use commercially reasonable efforts to test
the Deliverables prior to delivery to Amexco for the existence of viruses or
similar items.
EXCEPT AS SPECIFICALLY PROVIDED IN THIS AGREEMENT, THERE ARE NO OTHER
WARRANTIES, EXPRESSED OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED
WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. CONSULTANT
DOES NOT WARRANT THAT THE OPERATION OF ANY PRODUCT, INCLUDING UPDATES, DELIVERED
HEREUNDER OR (CUSTOMIZED PRODUCT TO THE EXTENT COVERED HEREUNDER) WILL BE
UNINTERRUPTED OR ERROR-FREE.
THE SOLE AND EXCLUSIVE REMEDY FOR BREACH OF ITEMS (i) and (iv) OF PARAGRAPH 1 OF
SECTION 7 AS IT RELATES TO CLAIMS BROUGHT BY THIRD PARTIES WITH RESPECT TO
INTELLECTUAL PROPERTY RIGHTS SHALL BE THE
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INDEMNIFICATION OBLIGATIONS AS SET FORTH IN ARTICLE 8 OF THIS AGREEMENT. THE
SOLE AND EXCLUSIVE REMEDY OF AMEXCO FOR A BREACH OF THE YEAR 2000 COMPLIANT
WARRANTY SET FORTH IN SECTIONS 7 SHALL BE FOR CONSULTANT TO USE COMMERCIALLY
REASONABLE EFFORTS TO CAUSE THE DELIVERABLES TO BE YEAR 2000 COMPLIANT.
DISCLAIMER OF WARRANTIES. Consultant does not warrant that the operation of any
software delivered hereunder will be uninterrupted or error-free provided
however that this does not eliminate the obligation of Consultant to provide
services hereunder in accordance with the rates and terms of the Agreement and
the applicable Schedule. THE PARTIES AGREE THAT THE WARRANTIES STATED IN THIS
SECTION 7 HEREOF ARE EXCLUSIVE AND IN LIEU OF ALL OTHERS, EXPRESS OR IMPLIED,
RESPECTING THIS AGREEMENT, THE SCHEDULES AND THE DELIVERABLES, INCLUDING BUT
LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A
PARTICULAR PURPOSE.
LIMITATION OF LIABILITY: REGARDLESS OF WHETHER ANY REMEDY SET FORTH HEREIN
-----------------------
FAILS OF ITS ESSENTIAL PURPOSE AND TO THE EXTENT PERMITTED BY APPLICABLE LAW,
AMEXCO SHALL NOT HAVE ANY CLAIM (EXCEPT FOR THE REMEDIES AGAINST CONSULTANT
SPECIFICALLY SET FORTH IN SECTION 7 (WARRANTY) AND THE SUBSECTION ON
INFRINGEMENT INDEMNIFICATION CONTAINED IN SECTION 8 HEREOF) AGAINST CONSULTANT,
ITS AFFILIATES, OFFICERS OR EMPLOYEES OR THE MANUFACTURERS, LICENSORS,
SUBCONTRACTORS OR SUPPLIERS OF THE DELIVERABLES, WHETHER BASED ON CONTRACT,
NEGLIGENCE, PRODUCT LIABILITY, TRADE PRACTICE, OR OTHERWISE. NOTWITHSTANDING
THE FOREGOING AND REGARDLESS OF WHETHER ANY REMEDY SET FORTH HEREIN FAILS OF ITS
ESSENTIAL PURPOSE AND TO THE EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT
SHALL THE LIABILITY, IF ANY, OF CONSULTANT, ITS AFFILIATES, OFFICERS, EMPLOYEES,
LICENSOR, MANUFACTURERS, SUBCONTRACTORS OR SUPPLIERS FOR DAMAGES OF ANY TYPE
RELATING TO THE DELIVERABLES OR OTHERWISE ARISING OUT OF, RELATED TO OR IN ANY
WAY CONNECTED WITH THIS AGREEMENT OR THE LICENSE AGREEMENT EXCEED IN THE
AGGREGATE FOR ALL OCCURRENCES THE PROFESSIONAL SERVICES FEES PAID BY AMEXCO TO
CONSULTANT UNDER THIS AGREEMENT PLUS THE LICENSE FEES PAID BY AMEXCO TO
CONSULTANT UNDER THE LICENSE AGREEMENT. REGARDLESS OF THE FORM OF ACTION,
WHETHER BASED ON CONTRACT, NEGLIGENCE, PRODUCT LIABILITY, TRADE PRACTICES OR
OTHERWISE, NOTWITHSTANDING ANYTHING IN THIS AGREEMENT TO THE CONTRARY,
REGARDLESS OF WHETHER ANY REMEDY SET FORTH HEREIN FAILS OF IT S ESSENTIAL
PURPOSE AND TO THE EXTENT PERMITTED BY APPLICABLE LAW IN NO EVENT SHALL EITHER
PARTY BE LIABLE, ONE TO THE OTHER, FOR ANY INDIRECT, SPECIAL INCIDENTAL,
PUNITIVE OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH THIS
AGREEMENT OTHER THAN THOSE ARISING FROM A MISAPPROPRIATION OF THE OTHER PARTY'S
INTELLECTUAL PROPERTY RIGHTS OR A BREACH OF THE CONFIDENTIALITY PROVISIONS OF
SECTION 8 HEREOF.
11
8. GENERAL
-------
TERM & TERMINATION: this Agreement shall commence as of the Effective Date and
------------------
shall continue in full force and effect thereafter unless and until terminated
as provided hereunder. Notwithstanding anything herein to the contrary, Amexco
may terminate this Agreement and/or any Schedule upon [**] ([**]) days' written
notice. Amexco agrees to pay Consultant for services performed up to the
effective date of termination, at the agreed upon rates plus reimbursement of
expenses in accordance with the terms hereof (including the [**] ([**]) day
period following notice of intent to terminate); provided, however, Amexco shall
not be obligated to pay for Consultant personnel during such [**] ([**]) day
period to the extent that such personnel have been reassigned to other client
work of Consultant. Notice of termination of any Schedule shall not be
considered notice of termination of this Agreement unless specifically stated in
the notice.
MATERIAL BREACH: Subject to the above termination language, in the event of
---------------
any material breach of this Agreement by one party, the other party may
(reserving cumulatively all other remedies and rights under this Agreement)
terminate the Schedule(s) involved, in whole, or in part, by giving [**] ([**])
days' written notice thereof; provided, however, that any such termination shall
not be effective if the party in breach has cured the breach of which it has
been notified prior to the expiration of said [**] ([**]) days.
SURVIVAL: As long as any Schedule remains in effect, the Agreement survives in
--------
effect with respect to those Schedules. In addition, Sections 2, the non-
solicitation and independent contractor provisions of Section 3, 5 (unless
Consultant terminates a license thereunder in accordance with the terms thereof,
6, 7 (other than warranties) and 8 shall survive termination of this Agreement.
INTELLECTUAL PROPERTY INFRINGEMENT RELATED TO DELIVERABLES
----------------------------------------------------------
Consultant agrees to defend and/or handle at its own expense, any claim or
action against Amexco by a third party for actual or alleged infringement of
such third party's intellectual or industrial property rights, including,
without limitation, trademarks, service marks, patents, copyrights,
misappropriation of trade secrets or any similar proprietary rights, based upon
the Deliverables furnished hereunder by Consultant or based on Amexco's use
thereof. Consultant further agrees to indemnify and old Amexco harmless from
and against any and all judgments (or settlements agreed to by Consultant)
awarded against Amexco in favor of such third party as a result of such claim or
action and related court costs and litigation expenses (including reasonable
attorney's fees). Consultant shall have the sole right to conduct the defense
of any such claim or action and all negotiations for its settlement or
compromise, unless otherwise mutually agreed to in writing.
Such indemnification obligation shall not apply to any claim based on (i)
Deliverables not owned or developed by or on behalf of Consultant, (ii) the
combination of the Deliverable with other
__________________
[**] INDICATES MATERIAL THAT HAS BEEN OMITTED AND FOR WHICH CONFIDENTIAL
TREATMENT HAS BEEN REQUESTED. ALL SUCH OMITTED MATERIAL HAS BEEN FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 406 PROMULGATED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED.
12
products not owned or developed by or on behalf of Consultant provided the
infringement arises in connection with the combination, (iii) Deliverables
supplied by Consultant in accordance with Amexco's designs, specifications, or
instructions where Amexco has required Licensor to ignore Licensor's suggestions
for designs, specifications or instructions which Licensor recommends as non-
infringing and to use Amexco's instead, (iv) arising from the failure of Amexco
to use an updated or corrected Deliverable or other product provided by
Consultant to the extent it is designed to eliminate the alleged infringement
(and provided Consultant provides installation thereof at no charge), or (v)
arising from the failure of Amexco to use the Deliverable for its intended
purposes.
If any Deliverable becomes, or in Consultant's opinion is likely to become, the
subject to any such claim or action, then, Consultant, at is expense may either:
(i) procure for Amexco the right to continue using same as contemplated
hereunder: (ii) modify same to render same non-infringing (provided such
modification does not adversely affect Amexco's use as contemplated hereunder):
or (iii) replace same with equally suitable, functionally equivalent,
compatible, non-infringing products, materials and/or services. If none of the
foregoing are commercially practicable despite Consultant's commercially
reasonable efforts, then Consultant shall have the right to terminate the
Schedule(s) involved and receive back the allegedly infringing Deliverable and
Licensor shall pay Amexco an amount equal to all Professional Services fees (but
not out-of-pocket expenses) paid in respect of such Deliverable (less an amount
equal to [**]% per annum commencing on the date on which the Deliverable was
installed unless a shorter license term applies).
INTELLECTUAL PROPERTY INFRINGEMENT RELATED TO SOFTWARE AND MATERIALS SUPPLIED
-----------------------------------------------------------------------------
BY AMEXCO
---------
Amexco agrees to defend and/or handle at its own expense, any claim or action
against consultant by a third party for actual or alleged infringement of such
third party's intellectual or industrial property rights, including, without
limitation, trademarks, service marks, patents, copyrights, misappropriation of
trade secrets or any similar proprietary rights, based upon Consultant's use of
any software provided by Amexco to Consultant (the "Amexco Software") or based
on Consultant's use thereof in connection with work under this Agreement.
Amexco further agrees to indemnify and hold Consultant harmless from and against
any and all judgments (or settlements agreed to by Amexco) awarded against
Consultant in favor of such third party as a result of such claim or action and
related court costs and litigation expenses (including reasonable attorney's
fees). Amexco shall have the sole right to conduct the defense of any such
claim or action and all negotiations for it settlement or compromise, unless
otherwise mutually agreed to in writing.
Such indemnification obligation shall not apply to any claim based on (i) Amexco
Software not owned or developed by or on behalf of Amexco, (ii) the combination
of the Amexco Software with other products not owned or developed by or on
behalf of Amexco provided the infringement arises in connection with the
combination, (iii) arising from the failure of
__________________
[**] INDICATES MATERIAL THAT HAS BEEN OMITTED AND FOR WHICH CONFIDENTIAL
TREATMENT HAS BEEN REQUESTED. ALL SUCH OMITTED MATERIAL HAS BEEN FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 406 PROMULGATED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED.
13
consultant to use an updated or corrected Amexco Software provided by Amexco, or
(iv) arising from the failure of Consultant to use the Amexco Software for its
intended purposes.
If any Amexco Software becomes, or in Amexco's opinion is likely to become, the
subject to any such claim or action, then, Amexco, at is expense may either: (i)
procure for Consultant the right to continue using same as contemplated
hereunder: (ii) modify same to render same non-infringing (provided such
modification does not adversely affect Consultant's use as contemplated
hereunder); or (iii) replace same with equally suitable, functionally
equivalent, compatible, non-infringing products, materials and/or services. If
none of the foregoing are commercially practicable despite Amexco's use of
commercially reasonable efforts to secure (i), (ii) or (iii) above, then Amexco
shall have the right to receive back the allegedly infringing Amexco Software
and Consultant shall be entitled to a refund of all amounts paid to Amexco for
the returned Amexco Software.
CONFIDENTIAL INFORMATION: Each party agrees to regard and preserve as
------------------------
confidential all information related to the business and activities of the other
party (and in the case of Amexco, the Amexco Entities), including information a
party provides the other regarding their customers, clients, suppliers and other
entities with whom the party does business and regarding current and future
product and technology, that may be obtained by a party from the other party
(the "Confidential Information"). Upon request of the disclosing party, the
receiving party agrees to return within [**] days all copies in all forms of any
Confidential Information which was previously obtained by it, or if approved by
the party owning Confidential Information, provide certification of destruction
thereof within [**] days.
Each party agrees to hold the confidential Information in trust and confidence
for the other party and not to disclose such information to any person, firm or
enterprise, or use (directly or indirectly) any such information for its own
benefit or the benefit of any other party, unless authorized by the party whose
Confidential Information it is in writing, and event then, to limit access to
and disclosure of such confidential information to the receiving party's
employees and consultant's on a "need to know" basis only for purposes of
performing the receiving party's duties under this Agreement and provided any
such employee or consultant is bound by a confidentiality agreement with the
receiving party containing terms comparable to the terms of this section.
The provision of confidential Information by one party to another will not be
construed as creating, conveying, transferring, granting or conferring upon the
other, any rights, license or authority in or to the information exchanged or
otherwise. Each party agrees that any and all Confidential Information
disclosed to it by the other party is and shall remain the proprietary and
confidential information and property of the disclosing party. Each party
agrees to insure, by agreement, instruction or otherwise, compliance with these
confidentiality obligations by its employees, agents, consultants and others who
have permitted access or use of the confidential Information of the other party.
Each party agrees that if there is a breach or threatened breach of the
provisions of this Agreement, the other party will have no adequate remedy in
money or damages and accordingly shall be entitled to injunctive relief;
provided, however, no
__________________
[**] INDICATES MATERIAL THAT HAS BEEN OMITTED AND FOR WHICH CONFIDENTIAL
TREATMENT HAS BEEN REQUESTED. ALL SUCH OMITTED MATERIAL HAS BEEN FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 406 PROMULGATED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED.
14
specification in this Agreement of any particular remedy shall be construed as a
waiver or prohibition of any other remedies permitted under this Agreement in
the event of a breach or threatened breach of this section of this Agreement.
Information shall not be considered confidential to the extent, but only to the
extent, that such information is: (i) already known to the receiving party free
of any restriction at the time it is obtained form the other party; (ii)
subsequently learned from an independent third party free of any restriction and
without breach of this Agreement; (iii) is or becomes publicly available through
no wrongful act of the receiving party; (iv) is independently developed by one
party without reference to any Confidential Information of the other; or (v)
required to be disclosed pursuant to a requirement of a governmental agency or
law so long as the parties provide each other with timely written prior notice
of such requirements.
Consultant shall, in advance, require each employee assigned to perform services
under any Schedule and each employee who obtains or is in a position to obtain
any Amexco information or materials required by the terms of this Agreement to
be kept confidential, to execute Consultant's standard Non-Disclosure Agreement,
the current form of which has been provided by consultant to Amexco. Consultant
will provide Amexco with a true copy of each such Agreement upon request.
Consultant further agrees to take any other steps reasonably required and/or
appropriate to ensure compliance with the obligations set forth herein.
Consultant acknowledges and agrees that, in the event of a breach or threatened
breach of any of the foregoing provisions, Amexco will have no adequate remedy
in damages and, accordingly, shall be entitled to injunctive relief against such
breach or threatened breach; provided, however, that no specification of a
particular legal or equitable remedy shall be construed as a waiver, prohibition
or limitation of any legal or equitable remedies in the event of a breach
hereof.
EXCUSABLE DELAY: Except for payment obligations of Amexco hereunder, neither
---------------
party shall be liable or deemed to be in default for any delay or failure in
performance under this Agreement or interruption of services resulting directly
or indirectly from acts of God, civil or military authority, war, riots, civil
disturbances, accidents, fire, earthquakes, flood, strikes, lockouts, labor
disturbances, court or governmental order, or any other cause beyond the
reasonable control of such party. Each party agrees to provide the other with
notice upon becoming aware of an event of force majeure, such notice to contain
details of the circumstances giving rise to the event of force majeure.
ADVERTISING: Other than as set forth below, neither party will use the other
-----------
party's name or marks, refer to or identify the other party in any advertising
or publicity releases or promotional or marketing correspondence to others
without such other party's written approval. Notwithstanding anything herein to
the contrary, Consultant may use Amexco's name to identify Amexco as a customer
of consultant in materials to be provided to investors and potential investors
in Consultant, and may disclose this Agreement, related Schedules, and the terms
herein in the event the Consultant undertakes to file a registration statement
under the Securities Act of 1933, as amended, or as may otherwise be required
under securities laws; provided, however, that Consultant shall use its best
efforts to preclude disclosure of the terms of this Agreement in accordance with
the rules and regulations of the Securities and Exchange Commission by means of
an application for confidential treatment and Consultant shall consult
15
with Amexco prior to any such submission and take into account Amexco's view
with regard thereto. In addition, Consultant will consult with Amexco prior to
disclosure of its relationship with Amexco in a form S-1 or any successor SEC
filing thereto with respect to the portion of the S-1 or successor SEC filing
related to the relationship between Amexco and Consultant.
GOVERNING LAW & INTERPRETATION: This Agreement shall be construed and enforced
------------------------------
under the substantive laws of the State of New York. Headlines are for
reference only and shall not affect the meaning of any terms. If any provision
of this Agreement is held invalid, illegal or unenforceable, the remaining
provisions will continue unimpaired.
EXPORT RESTRICTIONS: Amexco will not knowingly export or re-export, directly or
-------------------
indirectly, any technical data (as defined in the U.S. Export Administration
Regulations) produced or provided under this Agreement, including, without
limitation, the Deliverables, or export or re-export, directly or indirectly,
any direct product of such technical data, including software, to a destination
to which such export or re-export is restricted or prohibited by U.S. or non-
U.S. law, without obtaining prior authorization from U.S. Department of Commerce
and other competent government authorities to the extent required by those laws.
INSURANCE: Throughout the term of this Agreement and Schedules thereto,
---------
Consultant must maintain adequate workers compensation, liability, disability,
unemployment and, automobile insurance as required under law for the consultant
and each of its employees performing Services under this Agreement and any
Schedules.
Consultant must also maintain throughout the term of this Agreement and any
Schedules thereto, the following types of insurance coverage at, or above the
minimum policy amounts set out below. All insurance companies must have and
maintain an AM Best rating of A- or better.
The Consultant shall provide verification of its insurance coverage by providing
a valid certificate of insurance to Amexco upon request. All certificates of
insurance must provide that Amexco will be notified [**] ([**]) days before
cancellation.
__________________
[**] INDICATES MATERIAL THAT HAS BEEN OMITTED AND FOR WHICH CONFIDENTIAL
TREATMENT HAS BEEN REQUESTED. ALL SUCH OMITTED MATERIAL HAS BEEN FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 406 PROMULGATED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED.
16
TYPE OF COVERAGE COVERAGE AS BROAD AS POLICY MINIMUMS
---------------------------------------------------------------------------------------------
Workers Compensation Statutory Requirements Statutory Requirements
---------------------------------------------------------------------------------------------
Employers' Liability Combined with workers Each accident, $[**]
compensation policy Disease policy limit, $[**]
Disease each employee, $[**]
---------------------------------------------------------------------------------------------
Commercial General ISO Form CG0001 General aggregate, $[**]
Liability and Personal Completed ops products, $[**]
Injury Each occurrence, $[**]
Personal injury, $[**]
---------------------------------------------------------------------------------------------
Commercial Auto, ISO Form CA0001 Combined single limit, $[**]
Including Employer's
Non-Owned auto
---------------------------------------------------------------------------------------------
Commercial Umbrella Underlying EL, GL May, if necessary, be used in any
Liability and Auto combination with the primary policy
limit to fulfill the above limit
Requirements
---------------------------------------------------------------------------------------------
Professional Liability NA Minimum policy limits of $[**].
Increased amounts subject to Amexco's
discretion
---------------------------------------------------------------------------------------------
ASSIGNMENT: Neither party may assign, transfer or subcontract the performance
----------
of its services, or any of its rights and/or obligations, without the other
party's prior written consent, and any attempt to do so shall be void; provided
that (a) Consultant may utilize Technology Providers, Inc. or such other
subcontractors as are set forth on Exhibit 3 hereto, as updated by mutual
agreement of the parties from time to time, as a subcontractor to perform its
technical duties and obligations under this Agreement (subject to the terms of
Section 3 hereof) provided that Consultant remains primarily liable for any
failure of such subcontractor to perform in accordance with the terms of this
Agreement: (b) either party may make an assignment of this Agreement pursuant to
(x) a merger, (y) a sale of greater than [**] percent ([**]%) of its assets; or
(z) a sale of greater than [**]% of its outstanding stock and (c) either party
(in the case of Amexco to an Amexco Entity only) may make an assignment to an
affiliate or subsidiary, provided that the assigning party remains primarily
liable for any failure of such affiliate or subsidiary to perform in accordance
with the terms of this Agreement. Each party shall cause its permitted assigns
to be bound by the terms of this Agreement and the relevant Schedules. Any
attempted non-permitted assignment, transfer or delegation in contravention of
this section of the Agreement shall be null and void. This Agreement shall
inure to the benefit of the parties hereto and their permitted successors and
assigns. Consultant shall require its subcontractors performing services for
Amexco hereunder to execute a non-disclosure with Consultant
__________________
[**] INDICATES MATERIAL THAT HAS BEEN OMITTED AND FOR WHICH CONFIDENTIAL
TREATMENT HAS BEEN REQUESTED. ALL SUCH OMITTED MATERIAL HAS BEEN FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 406 PROMULGATED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED.
17
comparable to the one entered into by Consultant with its employees regarding
confidentiality requirements.
POSSIBLE FUTURE SCHEDULE: Amexco and consultant agree to discuss a customized
------------------------
development effort for "double byte access" for Asian languages. To the extent
that the specifications and other details of this customization effort can be
mutually agreed then the parties will enter into a mutually agreeable Schedule
hereunder to reflect such effort.
NOTICES: All notices shall be in writing and delivered personally or properly
-------
mailed, first class mail, to the addresses of the parties set forth at the
beginning of this Agreement, to the attention of the undersigned, and, as to any
Schedule, with a copy to the signatories of the Schedule involved, at the same
address, or to such other address or addressee as either party may designate by
written notice. Any such notice shall be deemed given on the date delivered or
when placed in the mails as specified.
ENTIRETY: This Agreement, together with the Exhibits, Schedules and attachments
--------
hereto, contains the entire agreement between the parties and supersedes any
prior or inconsistent agreements, negotiations, representations and promises,
written or oral. No modification to this Agreement nor any failure or delay in
enforcing any term, exercising any option or requiring performance shall be
binding or construed as a waiver unless agreed to in writing by the parties
hereto.
MODIFICATION, AMENDMENT, SUPPLEMENT AND WAIVER: No modification, course of
----------------------------------------------
conduct, amendment, supplement to or waiver of this Agreement, any Schedule, or
any provisions hereof shall be binding upon the parties unless made in writing
and duly signed by both parties. At no time shall any failure or delay by
either party in enforcing any provisions, exercising any option, or requiring
performance of any provisions, be construed to be a waiver of same.
AMERICAN EXPRESS TRAVEL EDOCS, INC.
RELATED SERVICE COMPANY, INC.
By: [**] By: [**]
------------------------ ------------------------
Name: [**] Name: [**]
---------------------- ----------------------
(Type or Print) (Type or Print)
Title: [**] Title: [**]
--------------------- ---------------------
Date: [**] Date: [**]
---------------------- ----------------------
__________________
[**] INDICATES MATERIAL THAT HAS BEEN OMITTED AND FOR WHICH CONFIDENTIAL
TREATMENT HAS BEEN REQUESTED. ALL SUCH OMITTED MATERIAL HAS BEEN FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 406 PROMULGATED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED.
18
EXHIBIT 1 - FORM OF SCHEDULE
Consultant (Name and Address) Schedule No.: [**]
Agreement No.: [**]
Date:
This schedule is issued pursuant to the above-referenced Standalone Agreement
for consulting Services between American Express Travel Related Services
Company, Inc. and the above-named Consultant. Any term not otherwise defined
herein, shall have the meaning specified in the Agreement.
Amexco Project Manager Consultant Location
_______________
Consultant Project Manager Status Reports are required:
_______________
[**]
See Attachment A for a complete description of the services, deliverables and/or
------------
other tasks to be accomplished, the estimated milestone or implementation
schedule, the estimated charges and/or rates applicable to this Schedule and any
other mutually agreeable information.
AMERICAN EXPRESS TRAVEL [**]
RELATED SERVICE COMPANY, INC.
By:___________________________ By:___________________________
Name:_________________________ Name:_________________________
(Type or Print) (Type or Print)
Title:________________________ Title:________________________
Date:_________________________ Date:_________________________
__________________
[**] INDICATES MATERIAL THAT HAS BEEN OMITTED AND FOR WHICH CONFIDENTIAL
TREATMENT HAS BEEN REQUESTED. ALL SUCH OMITTED MATERIAL HAS BEEN FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 406 PROMULGATED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED.
19
Attachment A
PROVIDE A COMPLETE DESCRIPTION OF THE FOLLOWING:
DETAILED DESCRIPTION OF SERVICES
DETAILED DESCRIPTION OF DELIVERABLES
COSTS/FEES/CHARGES - NOT TO EXCEED OR ESTIMATED AMOUNTS-TOTAL AMOUNTS FOR
PROFESSIONAL SERVICES AND SEPARATE AMOUNT FOR TRAVEL AND EXPENSES [FOR PURPOSES
OF INITIAL SCHEDULE ONLY-NEED ALLOCATION OF PROFESSIONAL SERVICES TO CUSTOMIZE
DELIVERABLES]
WRITTEN STATUS REPORTS
TIMEFRAME OF PROJECT
PERSONNEL LISTING (IF POSSIBLE TO PROVIDE)
SUBCONTRACTORS TO BE APPROVED BY AMEXCO
ANY OTHER TERMS AND CONDITIONS MUTUALLY AGREED UPON BY THE PARTIES
20
Exhibit 2 - List of Amexco Entities
Only Amexco and the subsidiaries and affiliated companies listed on this
Exhibit 3 shall deemed to be permitted Amexco Entities under the Standalone
Agreement for Consultant Services. Additional Amexco subsidiaries and
affiliated companies may be added to this list with the written consent of both
parties the Standalone Agreement for Consultant Services.
[**]
[**]
__________________
[**] INDICATES MATERIAL THAT HAS BEEN OMITTED AND FOR WHICH CONFIDENTIAL
TREATMENT HAS BEEN REQUESTED. ALL SUCH OMITTED MATERIAL HAS BEEN FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 406 PROMULGATED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED.
21
Exhibit 3
Authorized Subcontractors of Consultant
Technology Providers, Inc.
