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EXHIBIT 10.22
FORM OF STANDARD CONSULTING AGREEMENT
CONSULTING SERVICES AGREEMENT
This Consulting Services Agreement (the "Services Agreement") is made
between SalesLogix Corporation, a Delaware corporation ("SalesLogix") and
______________________________________________________, a _____________________
corporation ("Customer"). SalesLogix and Customer agree as follows:
1. DEFINITIONS; TERMS AND CONDITIONS
Invention - the term "Invention" shall mean any idea, design, concept,
technique, invention, discovery, enhancement or improvement, whether or not
patentable, that is conceived or reduced to practice by one or more persons
during or in connection with the performance of consulting services under this
Services Agreement.
Programs - the term "Programs" means any computer software program or
programs, or any portion of such program or programs, together with all related
materials, documentation and information, or any portion thereof and any
modifications, corrections, improvements, enhancements and updates thereto, in
any form, tangible or intangible, used by SalesLogix in connection with
providing consulting services under this Services Agreement.
Terms and Conditions - The "Terms & Conditions" attached are part of this
Services Agreement and are incorporated herein by this reference, with the same
force and effect as if fully set forth herein.
Tools - The term "Tools" means any method, process or technique used by
SalesLogix in connection with providing consulting services under this Services
Agreement.
2. SERVICES
This Services Agreement is a foundation document to establish a consulting
services relationship between SalesLogix and Customer. This Services Agreement
shall be supplemented from time to time by individual work orders, or other
agreements, signed by each party, which define the specifics of each consulting
project (each, a "Work Order"). Each Work Order shall describe the work to be
performed (the "Work Product"), the timeframe for the project, the compensation
to be paid SalesLogix and shall become part of this Services Agreement.
SalesLogix shall perform such services as set forth in the Work Order. Services
which are to be compensated on a per day basis shall be calculated based on an
eight (8) hour day. Any changes to a Work Order shall be made in a writing
signed by both parties.
3. CUSTOMER-FURNISHED PROPERTY
Customer shall furnish SalesLogix at Customer's expense (a) all technical
matter, data, information and operating supplies, together with knowledgeable
personnel, as determined by SalesLogix to be necessary for the performance of
the Work Orders, (b) suitable workspace, and (c) access to a Customer computer
so configured and at such times as SalesLogix requires for the performance of
the Work Orders.
4. SALESLOGIX-FURNISHED PROPERTY; INVENTIONS
SalesLogix has designed and developed certain Programs and Tools which are
helpful in performing certain consulting services. In connection with providing
consulting services under this Services Agreement, SalesLogix may use, in its
discretion, such Programs and Tools. SalesLogix may also use or develop new
Programs, Tools or Inventions while providing services to Customer under this
Services Agreement. SalesLogix retains ownership of and all rights to any
Programs, Tools and Inventions and Customer agrees to cooperate with SalesLogix
in executing and recording any additional documents which are necessary or
desirable to vest these rights in SalesLogix. Except as otherwise expressly
provided in a separate, written license agreement signed by SalesLogix, if any,
no license or other right to the Programs, Tools or Inventions is granted or
transferred to Customer by this Services Agreement or any Work Order.
5. CONFIDENTIAL INFORMATION
SalesLogix shall not use or disclose Customer Confidential Information
except as necessary to perform services pursuant to this Services Agreement. For
purposes of this Services Agreement, "Customer Confidential Information" shall
mean written information which relates to Customer's research, development or
business activities, which is designated as confidential by Customer in writing
to SalesLogix and which is disclosed to SalesLogix in connection with
SalesLogix's performance of services pursuant to this Services Agreement, but
shall not include any Invention or any information which is previously known to
SalesLogix without obligation of confidence or without breach of this Services
Agreement, is publicly disclosed either prior to or subsequent to SalesLogix's
receipt of such information, is rightfully received by SalesLogix from a third
party without obligation of confidence or is independently developed by
SalesLogix.
6. WORK PRODUCT/RIGHTS IN DATA
The Work Product prepared for and submitted to Customer pursuant to
each Work Order shall become the property of Customer, subject to the provisions
of Section 1 of the Terms & Conditions and Section 4 above; provided however,
that with respect to a Work Order requesting that SalesLogix develop a "Software
Interface" (as defined below) the following provisions in this Section 6 shall
control issues relating to ownership. If SalesLogix is asked to develop a
Software Interface pursuant to specifications provided by Customer, then
Customer shall own all rights to the Software Interface, including copyrights
and object code embodied in the Software Interface, except to the extent the
Software Interface contains any confidential or proprietary information of
SalesLogix (including SalesLogix source code and object code) which existed as
of the date SalesLogix received the specifications from Customer. Whether or not
SalesLogix uses such preexisting confidential or proprietary information
(including source code or object code) in building the Software Interface, all
ownership rights to such preexisting confidential or proprietary information
shall remain with SalesLogix. To the extent SalesLogix embeds any preexisting
confidential or proprietary information (including source code or object code)
in the Software Interface, SalesLogix shall be deemed to confer to Customer an
object code license to use and distribute such preexisting confidential or
proprietary information on the same terms (and without any additional royalty
obligation) that Customer is licensed to use and distribute the SalesLogix
software products upon which the Software Interface is built. As used in this
Section, "Software Interface" means an object code and/or source code product
which is created as an industry template or similar specialized interface for
use with one or more SalesLogix software products.
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7. INDEPENDENT CONTRACTOR
The parties agree that SalesLogix is an independent contractor and shall
retain sole discretion and judgment in the manner the services are to be
performed. Neither party is, nor shall be considered to be, an agent,
distributor, partner, joint venturer or representative of the other party for
any purpose.
8. NONSOLICITATION OF EMPLOYEES
During the term of this Services Agreement and for twelve (12) months
thereafter, the parties agree not to solicit or hire any person who, to the
soliciting or employing party's knowledge, was an employee of the other at any
time during the prior twelve (12) months.
9. DELAYS
SalesLogix shall exercise reasonable, good-faith efforts in performing the
services to be provided under this Services Agreement in a timely manner as
specified in the Work Order but shall not be liable for any delays resulting
from circumstances or causes beyond its reasonable control.
10. INSURANCE
SalesLogix agrees to carry the following types and amounts of insurance and
shall deliver, upon written request by Customer, evidence of such insurance:
a. Workers' Compensation insurance in an amount sufficient by virtue of
the laws of the State of Arizona;
b. General Liability insurance in which the limit of liability for injuries,
including accidental death, and property damage is no less than U.S. $1,000,000
for any one occurrence; and
11. CANCELLATION OF WORK ORDERS
Customer may cancel any outstanding Work Order upon written notice of such
cancellation. Cancellation of a Work Order shall be effective on the first
business day following actual receipt by SalesLogix of written notice of
cancellation. In the event of a cancellation of a Work Order, Customer shall pay
SalesLogix for all services performed, if any, as of the effective date of the
cancellation at the rates provided in the applicable Work Order, together with a
cancellation fee equal to the greater of: (a) twenty percent (20%) of the total
price for services to be rendered pursuant to the applicable Work Order, or (b)
the amount of fees that would have accrued for services performed during the ten
(10) day period following the effective date of the cancellation had the Work
Order not been cancelled.
12. TERM OF SERVICES AGREEMENT; TERMINATION
a. Termination. The effective date of this Services Agreement is noted
below. Either party may terminate this Services Agreement by written notice to
the other party. The Termination Date shall be the date sixty (60) calendar days
after the effective date of the written notice of termination. No new Work
Orders may be entered into after the Termination Date, but termination of this
Services Agreement by either party will not effect a cancellation or termination
of any Work Orders signed by both parties prior to the Termination Date (the
"Remaining Work Orders"). Services to be performed under Remaining Work Orders
will continue until completion unless Customer cancels any or all of such
Remaining Work Orders pursuant to Section 11 hereof. This Services Agreement
will remain in effect with respect to the Remaining Work Orders until their
completion, at which time this Services Agreement will expire automatically.
b. Expiration. If no new Work Orders are executed during a period of twelve
(12) consecutive months, this Services Agreement shall expire automatically,
unless there are then outstanding Work Orders, in which case this Services
Agreement shall expire upon completion of all services pursuant to outstanding
Work Orders.
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Customer, by signing below, expressly affirms to SalesLogix that
Customer has carefully read and understands this entire Agreement, including the
Terms and Conditions attached hereto, and that this Agreement contains the
complete and exclusive statement of the agreement between Customer and
SalesLogix and supersedes and replaces all prior proposals, understandings and
agreements, oral or written.
The effective date of this Services Agreement is the _______ day of
_____________, 19___. This Services Agreement is binding only if executed by a
SalesLogix corporate officer.
Customer SalesLogix
By: By:
------------------------------ ------------------------------
Authorized Signature Authorized Signature
-------------------------------- -----------------------------------
Printed Name Printed Name
-------------------------------- -----------------------------------
Title Title
-------------------------------- -----------------------------------
Address SalesLogix Corporation
0000 Xxxxx Xxxxxx Xxxxxx Xxxxx
-------------------------------- Suite 200
City, State & Zip Xxxxxxxxxx, XX 00000
--------------------------------
Country
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TERMS & CONDITIONS
PLEASE NOTE: These terms and conditions are incorporated by reference into
Customer's agreement with SalesLogix Corporation
("SalesLogix"). "Services Agreement" shall mean any
"Consulting Services Agreement" between Customer and
SalesLogix. "Agreement" shall mean these Terms & Conditions,
and any Services Agreement or Work Order. Capitalized terms
not otherwise defined shall have the meanings ascribed in the
Services Agreement.
1. INTELLECTUAL PROPERTY RIGHTS; CONFIDENTIALITY
a. Intellectual Property Rights. Customer hereby acknowledges that the
Programs, Tools and Inventions, if any (including methods, processes or
techniques utilized in such Programs, Tools and Inventions) are proprietary to
and valuable trade secrets of SalesLogix and are protected by United States
copyright law and international treaties. Neither these Terms & Conditions nor
any Services Agreement transfer any title to or ownership rights in any Program,
Tool or Invention, or copy thereof, to Customer. Customer shall take no actions
which impair or infringe SalesLogix's intellectual property rights and shall
give immediate written notice to SalesLogix of any claim of infringement it
becomes aware of with respect to any Program, Tool or Invention. Customer shall
not use, copy, modify, transfer, download, merge, make any translation or
derivative work or otherwise deal with the Programs, Tools and Inventions except
as expressly provided in this Agreement. In no event shall Customer cause or
permit the disassembly, reverse compilation or other decoding of any Program,
Tool or Invention.
b. Confidentiality. Customer agrees to maintain the confidential nature of
the Programs, Tools and Inventions. Customer shall maintain the Tools, Programs
and Inventions free of all liens or claims and shall take all reasonable steps
required by SalesLogix to confirm title to the Tools, Programs and Inventions in
SalesLogix. Customer shall exercise at least the same degree of care to protect
the confidentiality of the Tools, Programs and Inventions as Customer would
exercise in protecting Customer's own similar confidential information. Customer
agrees to take all steps necessary to ensure that the Tools, Programs and
Inventions shall not be disclosed to, or used by, any person, association or
entity except Customer's own employees and consultants and then only on a need
to know basis
c. Defined Term. For purposes of this Section 1, the term "SalesLogix" shall
include SalesLogix Corporation and any third party from whom SalesLogix
Corporation has received the right to license the Programs, Tools and
Inventions.
d. Survival. The obligations and agreements in this Section shall survive
any expiration or termination of this Agreement.
2. PAYMENT TERMS
a. Due Date; Late Payments. All payments due under Customer's Agreement with
SalesLogix are due upon receipt of invoice (unless otherwise noted on the
invoice). If any amount is not paid within thirty (30) days after the due date,
SalesLogix shall be entitled to receive, in addition to such amount, interest
thereon at the rate of two percent (2%) per month (or such lower rate as shall
be the highest permissible contract rate under applicable law) from and after
the date the amount was due.
b. Expenses. When commercial transportation, overnight accommodations,
living expenses or computer costs are incurred by SalesLogix in carrying out
activities under this Agreement, Customer shall pay to SalesLogix those actual
expenses upon presentation of invoice.
c. Taxes. Customer shall pay all international, federal, state or local
tariffs, duties, withholdings and taxes (other than taxes on SalesLogix's net
income), including, without limitation, sales, use, excise, privilege, ad
valorem and property taxes, or amounts in lieu thereof, based on any fees or
charges payable under this Agreement or based on the Programs, Tools and
Inventions, their use or any services performed hereunder, whether such tariffs,
duties or taxes are now or hereafter imposed by said jurisdictions.
3. WARRANTIES
a. Disclaimer of Warranties. EXCEPT FOR THE EXPRESS LIMITED WARRANTIES
CONTAINED IN THIS SECTION, ALL OTHER WARRANTIES CONCERNING SERVICES PROVIDED BY
SALESLOGIX, EXPRESS OR IMPLIED, STATUTORY, OR IN ANY OTHER PROVISION OF THIS
AGREEMENT INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY, TITLE,
THE CONDITION OF ANY PRODUCT, FITNESS FOR A PARTICULAR PURPOSE, OR INCREASED
EFFICIENCY OF USE OF HARDWARE OR SOFTWARE COMPUTER SYSTEMS, DATA OR PROGRAMS,
ARE HEREBY EXPRESSLY DISCLAIMED AND EXCLUDED.
b. Service Agreement Warranties. SalesLogix makes the following warranties
to Customer: (i) SalesLogix warrants that it has the right to use the Programs
and Tools in connection with the performance of the Services Agreement; and (ii)
SalesLogix will use its best efforts to ensure that the Work Product will
substantially conform to the description on the applicable Work Order.
4. REMEDIES
a. Indemnification. SalesLogix agrees to defend or settle, at SalesLogix's
expense, option and discretion, any claim against Customer arising from a claim
that SalesLogix's use of the Programs or Tools in connection with performing any
Services Agreement, infringes any United States patent or copyright and to
indemnify Customer from any settlement or final judgment against Customer
related to such infringement claim. Customer shall promptly notify SalesLogix of
any claims for which it seeks indemnification hereunder and shall cooperate with
SalesLogix in the defense of any such claims as reasonably requested by
SalesLogix. Customer shall not independently defend or respond to any such
claim. Customer's failure to promptly notify SalesLogix of any claim shall void
this indemnification agreement and the warranties made in Section 3(b). THIS IS
CUSTOMER'S SOLE REMEDY WITH RESPECT TO A BREACH OF THE WARRANTIES IN SUBSECTION
3(b)(i) OF THESE TERMS & CONDITIONS. SalesLogix's indemnification obligations
are also subject to Section 5 of these Terms & Conditions.
b. Correction of Errors. SalesLogix agrees to use reasonable efforts to
correct any error or defect in any Work Product that does not substantially
conform to the description on the Work Order. THIS IS CUSTOMER'S SOLE REMEDY
WITH RESPECT TO A BREACH OF THE WARRANTY IN SUBSECTION 3(b)(ii) OF THESE TERMS &
CONDITIONS.
5. LIMITATION OF LIABILITY
WHETHER OR NOT ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, SALESLOGIX SHALL
NOT UNDER ANY CIRCUMSTANCE BE LIABLE TO CUSTOMER OR ANY OTHER PARTY FOR
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ANY SPECIAL, INDIRECT, OR CONSEQUENTIAL DAMAGES OF ANY KIND, INCLUDING, WITHOUT
LIMITATION, DAMAGES FOR LOSS OF GOODWILL, WORK STOPPAGE, LOST PROFITS, LOST DATA
OR COMPUTER HARDWARE OR SOFTWARE DAMAGE, FAILURE OR MALFUNCTION.
6. TERMINATION
a. Termination for Breach. Either party may terminate this Agreement upon a
material breach of the Agreement by the other, if the breaching party does not
cure the breach within forty-five (45) days after written notice from the
nonbreaching party specifying the breach. Notwithstanding the foregoing,
SalesLogix may terminate this Agreement upon written notice if Customer fails to
pay any sums due under this Agreement within thirty (30) days after the due
date. Termination by either party for breach shall not release the other party
from any liability to the nonbreaching party for such breach.
b. Duties Upon Termination. Upon expiration or earlier termination of this
Agreement, Customer will return to SalesLogix, at Customer's expense, all
originals and copies of all Programs (including user manuals and other
maintenance and support materials furnished by SalesLogix), permanently purge
all machine-readable copies of the Programs from all CPU(s) and storage devices
and certify to SalesLogix in writing that the foregoing duties have been
performed and that Customer will not in any way use or permit the use of the
Programs.
7. ASSIGNMENT
Customer's rights and obligations under this Agreement are limited
exclusively to Customer and may not be voluntarily or involuntarily (by
operation of law or otherwise) assigned, sublicensed or otherwise transferred by
or through Customer, in whole or in part, in any manner. A transfer or issuance
of any ownership interest shall constitute such a transfer. Any attempted
transfer, assignment or sublicense in contravention of this provision shall be
void and of no effect.
8. EXPORT
Customer will not, without the prior written consent of SalesLogix and, if
required, of any governmental authority having jurisdiction, transmit, ship,
export or reexport, or disclose, directly or indirectly: (i) any technical data
received under or in connection with this Agreement; or (ii) any direct product
(including processes and services) produced by the use of any such technical
data; to any restricted country or recipient specified in the Export
Administration Regulations except as authorized by the United States Department
of Commerce or other applicable laws or regulations.
9. GENERAL PROVISIONS
a. Amendments. This Agreement may not be amended or modified except in a
writing signed by both parties, and any attempt at oral modification shall be
void and of no effect.
b. Entire Agreement. This Agreement, including any Services Agreement, these
Terms & Conditions and any Work Orders, contains all the understandings between
the parties on the subject matter of this Agreement (superseding any prior oral
or written understandings) and there are no other warranties, representations or
agreements between them except as set forth in this Agreement.
x. Xxxxx. Neither party to this Agreement shall be liable for delays or
failures in performance (other than payment of money or breach of
confidentiality requirements) resulting from acts beyond the reasonable control
of such party.
d. Costs and Attorney Fees. The prevailing party shall be entitled to
recover, in addition to any other remedy, reimbursement for reasonable attorney
fees, court costs, costs of investigation, expert fees and other related
expenses incurred in connection with any enforcement of rights under this
Agreement.
e. Applicable Law. The validity, construction and performance of this
Agreement shall be governed by and construed in accordance with the laws of the
State of Arizona, excluding that body of law applicable to choice of law. The
parties consent and submit to the jurisdiction and venue of the state and
federal courts located in Maricopa County of the State of Arizona to determine
the validity, construction and performance of this Agreement. Notwithstanding
the foregoing, SalesLogix shall have the right to seek relief in any court of
competent jurisdiction to prevent or enjoin the misappropriation, misuse,
infringement or unauthorized disclosure of SalesLogix's confidential information
or intellectual property rights.
f. Waivers. The failure or delay of any party to exercise any right or
option arising out of a breach of this Agreement shall not be deemed a waiver of
any right or option with respect to any subsequent or different breach, or the
continuance of any existing breach, after demand for strict performance.
g. Interpretation. To the fullest extent possible each provision of this
Agreement shall be interpreted in such fashion as to be effective and valid
under applicable law. If any provision of this Agreement is declared void or
unenforceable for particular facts or circumstances, such provision shall remain
in full force and effect for all other facts or circumstances. If any provision
of this Agreement is declared entirely void or unenforceable, such provision
shall be deemed severed from this Agreement, which shall otherwise remain in
full force and effect.
h. Notices. Any notice or other communication required or permitted
hereunder shall be given in writing to the other party at the address stated in
the Services Agreement or at such other address as shall be given by either
party to the other in writing. Such notice shall be deemed to have been given or
made when delivered personally, by confirmed facsimile transmission or five (5)
days after being placed, properly addressed with first class, postage prepaid,
return receipt requested, in the United States mail, or sent by registered
airmail, properly addressed, postage prepaid and return receipt requested.
