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Exhibit 10.3
CONSULTING SERVICES AGREEMENT
(HEREINAFTER REFERRED TO AS AGREEMENT)
BETWEEN
XXX X. XXXXXX, INC.
(HEREINAFTER REFERRED TO AS WESTON)
XXX XXXXXX XXX
XXXX XXXXXXX, XX 00000
AND
XXXXXXXXX X. XXXXXX
(HEREINAFTER REFERRED TO AS CONSULTANT)
ARTICLE 1 - INTRODUCTION
WHEREAS, WESTON, a Pennsylvania Corporation, requires travel management
consulting services and expertise from CONSULTANT.
WHEREAS, CONSULTANT has represented to WESTON that she is uniquely
qualified, because of her experience as the owner of WESTON's travel management
provider, to perform such services.
NOW, THEREFORE, the parties agree that the terms and conditions set
forth below shall govern the services to be provided by CONSULTANT to WESTON.
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ARTICLE 2 - SCOPE OF WORK
The Consultant under this Agreement shall provide WESTON with expert consulting
services in the area of travel management, including the successful transition
of travel management services from WESTON's current travel management provider
to WESTON Travel. Consultant shall also provide specialized expertise in all
areas related to travel management including: travel policy and program reviews;
travel agency services; on-going travel management; global consolidations;
technology assessments; contracting and negotiations; and development of
strategies and objectives. Further, WESTON and Consultant recognize that travel
costs are a significant expense to WESTON in the conduct of its business. Both
parties agree that travel costs are controllable and have a direct impact on the
profitability of WESTON. Therefore, CONSULTANT's services shall include
assistance to WESTON in controlling its travel costs, thereby improving the
profitability of WESTON.
CONSULTANT agrees to devote its best professional effort to the accomplishment
of its assignments and to perform with diligence and expedition, consistent with
the highest recognized professional standards and in compliance with all
applicable laws and regulations.
ARTICLE 3 - ORDER OF PRECEDENCE
In the event of an inconsistency or ambiguity between the documents comprising
this Agreement, the following order of precedence shall govern:
A. Attachment A.
B. Agreement.
ARTICLE 4 - CONFIDENTIALITY
(a) CONSULTANT shall receive and retain all Proprietary Information in
confidence and shall not disclose such information to any person
without the express written authorization of WESTON. CONSULTANT
shall use Proprietary Information solely for the purpose of
performing her obligations hereunder and for no other purpose. Upon
termination of this Agreement, CONSULTANT shall promptly return all
Proprietary Information to WESTON, and will, if requested by WESTON,
execute a certificate warranting that all Proprietary Information
has been returned to WESTON in accordance with this Agreement.
(b) CONSULTANT may not represent that CONSULTANT is associated with
WESTON for her own promotional purposes without prior written
permission of WESTON.
ARTICLE 5 - AUTHORIZED REPRESENTATIVES
The following individuals are the authorized representatives of the respective
parties to execute this Agreement:
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CONSULTANT: Xxxxxxxxx X. Xxxxxx
WESTON: Xxxxxxx X. Xxxxxxxxx
Any subsequent changes to the authorized representatives cited above must be
mutually agreed to via written modification to this Agreement.
ARTICLE 6 - WORK PRODUCT
(a) All information, including, but not limited to, all designs,
drawings, specifications, standards, processes, manuals, reports,
computer software and related information, first produced by
CONSULTANT for WESTON during the performance of the Services
hereunder, shall be the sole property of WESTON or its assignee. All
such information shall be considered Proprietary Information and
shall be retained and used solely in accordance with the provisions
of Article 4 hereof. To the extent any such information comprises
work susceptible to protection under the Copyright laws, CONSULTANT
agrees that such work shall be deemed "work made for hire"
hereunder. In the event that such work is determined not to be "work
made for hire" under the copyright laws, this Agreement shall
operate as an irrevocable assignment by CONSULTANT to WESTON of the
copyright in the work, including all right, title and interest
therein, in perpetuity.
(b) All inventions, improvements and discoveries, whether patentable or
not, first conceived, developed or reduced to practice by
CONSULTANT, either alone or with others, in the course of the
performance of CONSULTANT's Services hereunder, or as a consequence
of CONSULTANT's receipt of information hereunder, shall be the sole
property of WESTON. All such inventions, improvements and
discoveries shall be promptly disclosed to WESTON in writing. At
WESTON's request and expense, CONSULTANT agrees to (i) assist WESTON
in making application for patents on such inventions, improvement
and discoveries in the United States and any foreign countries (ii)
assign all such applications to WESTON or its designee without
further charges, (iii) assist WESTON in the prosecution of any
patent applications and the enforcement of any resulting patents and
(iv) execute any and all documents necessary for the accomplishment
of the foregoing.
ARTICLE 7 - CONFLICTS OF INTEREST
(a) CONSULTANT warrants that, to the best of her knowledge and belief,
there are no relevant facts or circumstances which could give rise
to a conflict of interest under this Agreement, or that CONSULTANT
has disclosed all such relevant information.
(b) The CONSULTANT agrees that if an actual or potential conflict of
interest is discovered after award, the CONSULTANT will make a full
disclosure in writing to WESTON. This disclosure shall include a
description of actions which the
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CONSULTANT has taken or proposes to take, after consultation with
WESTON to avoid, mitigate or neutralize the actual or potential
conflict.
(c) If CONSULTANT is a former United States government employee,
CONSULTANT agrees to furnish WESTON all necessary information
regarding any potential conflict of interest.
ARTICLE 8 - TERM OF AGREEMENT
The effective date of this Agreement shall be the date of termination of the
Travel Management Services Agreement, dated 15 March 1996 between International
Corporate Travel Services, Inc., the CONSULTANT and WESTON, or 1 July 1998,
which ever shall occur later. The Agreement shall continue in full force and
effect for a period of three years thereafter unless earlier terminated as
provided herein.
ARTICLE 9 - COMPENSATION
(a) Compensation, shall be in accordance with the terms contained in
Attachment A.
ARTICLE 10 - TERMINATION
This Agreement may be terminated at any time for the convenience of the parties
upon the mutual consent of both WESTON and CONSULTANT. Either party may
terminate this Agreement, in writing, if the other party fails to fulfill its
obligations under this Agreement and such failure to perform remains uncured for
a period of ten (10) days following written notice from the non-breaching party
in which the performance deficiencies complained of are specified. Termination
of this Agreement will not affect the provisions of Articles 4 and 6 which shall
remain in effect for a period of five (5) years from the date of termination or
expiration of this Agreement.
ARTICLE 11 - RECORDS RETENTION
CONSULTANT shall retain all records related to this Agreement in legible form
for a period of three (3) years from date of final payment hereunder. CONSULTANT
authorizes WESTON to inspect and audit these records during business hours with
prior notice to CONSULTANT.
ARTICLE 12 - TAXES
CONSULTANT shall have sole responsibility for payment of all Federal, state,
local and other income taxes and for all employment and other taxes applicable
to the consideration paid to CONSULTANT hereunder. CONSULTANT further agrees to
indemnify and hold WESTON harmless from and against any and all claims related
to such taxes.
ARTICLE 13 - INDEPENDENT CONTRACTOR
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In performance of all Services, CONSULTANT shall be deemed to be an "independent
contractor" and as such, shall not be entitled to any benefits applicable to the
employees of WESTON. The CONSULTANT declares that she is engaged in an
independent business. CONSULTANT shall in no way be deemed to be an agent or
representative of WESTON. CONSULTANT shall have no authority to bind or speak
for WESTON except as may be specifically given to CONSULTANT in writing from
time to time.
ARTICLE 14 - INSURANCE
CONSULTANT shall maintain insurance at her own expense for services performed
hereunder. Such insurance shall include, Private Health (Major Medical or
comparable), and Automobile Liability (Bodily Injury and Property
Damage/$250,000 Minimum each). Certificates of insurance shall be provided to
WESTON immediately upon request.
ARTICLE 15 - WARRANTY
CONSULTANT warrants and represents that she possesses the expertise and
capability to properly and professionally perform her services hereunder, that
she is properly and legally licensed (if applicable) to perform such services,
and that she shall at all times in the performance of such services comply with
all applicable laws, ordinances and regulations and shall perform all services
in a good, workmanlike, professional, efficient and non-negligent manner; and
she does not and during the period of performance of this Agreement will not
represent any competitor of WESTON.
ARTICLE 16 - INDEMNIFICATION
The CONSULTANT agrees to indemnify and hold harmless WESTON, its officers,
directors, agents and employees for any loss, including reasonable and actual
attorney's fees, costs or damages that WESTON may incur as a result of the
negligent acts or omissions of the CONSULTANT or the CONSULTANT's employees or
agents.
Neither party shall be liable to the other for incidental, indirect or
consequential damages, except where same arises out of the gross negligence or
willful misconduct of the other party.
ARTICLE 17 - ASSIGNMENT
This Agreement may not be assigned by CONSULTANT, either in whole or in part,
without the prior written consent of WESTON and any attempted assignment shall
be null and void and without force and effect.
ARTICLE 18 - DISPUTES
Any dispute arising under this Agreement, including disputes under termination,
not settled by agreement of the parties, shall be decided by litigation in a
court of competent jurisdiction. Pending any decision, appeal, suit, or claim
pursuant to this Article, CONSULTANT shall proceed diligently with the
performance of the work authorized under this Agreement.
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ARTICLE 19 - SEVERABILITY
Any provision or part thereof of this Agreement held to be void or unenforceable
under any law or by any court shall be deemed stricken, and all remaining
provisions shall continue to be valid and binding upon the parties. The parties
may reform or replace such stricken provision or part thereof with a valid and
enforceable provision which expresses the intent of the stricken provision.
ARTICLE 20 - GOVERNING LAW
This Agreement shall be governed by and interpreted in accordance with the laws
of the Commonwealth of Pennsylvania.
ARTICLE 21 - ENTIRE AGREEMENT
This Agreement constitutes the sole and only agreement of the parties hereto and
supersedes any prior understandings or written or oral agreements between the
parties. This Agreement may be amended only by a writing signed by the duly
authorized representative of each party.
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed by
their duly authorized representatives.
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(CONSULTANT): XXX X. XXXXXX, INC. (WESTON):
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BY: /s/ BY: /s/
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NAME: Xxxxxxxxx X. Xxxxxx NAME: Xxxxxxx X. Xxxxxxxxx
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(Print/Type) (Print/Type)
SS #: ###-##-####
----------------------------
TITLE: President TITLE: Chairman and
---------------------------- ----------------------------
Chief Executive Officer
----------------------------
DATE: 5-28-98 DATE: 5-28-98
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ATTACHMENT A
COMPENSATION
(1) The Consultant shall receive, for services provided under this Agreement,
an annual retainer of $125,000 paid in twelve (12) equal monthly
installments.
(2) The Consultant is incentivised to assist WESTON reduce its travel
management cost, which for the twelve (12) month period ending April 1998
was $310,000. To the extent WESTON is successful in reducing this cost,
Consultant shall share in WESTON's savings. For each $30,000 increment of
annual savings, or part thereof, Consultant shall earn $10,000 up to an
annual limit, of $25,000. For example, if WESTON's total travel management
cost during the initial twelve (12) months of this Agreement is $250,000,
WESTON will have reduced its cost $60,000 below $310,000. This would
result in Consultant earning $20,000 ($310,000 - $250,000 = $60,000 /
$30,000 = 2 x $10,000 = $20,000). The amount of $310,000 is based upon 8%
commissions on domestic air fares, should the percentage of commission
change the $310,000 will be adjusted accordingly for calculation of the
Consultant's earnings. WESTON will make quarterly provisional payments
under this Article (2) as mutually agreed between the parties. For the
purpose of calculating the Consultant's incentive fee, travel management
costs shall include the cost to operate the WESTON travel department less
all commissions, rebates, overrides, or any other travel management
revenue generated by WESTON travel.
