EXHIBIT 10.22
INDIVIDUAL CONSULTANT AGREEMENT
This INDIVIDUAL CONSULTING AGREEMENT (this "Agreement"), effective as of
the day is entered into by and between XXXXXXXX-XXXXXXXX, INC., a Texas
corporation with primary business offices in Dallas, Texas, and Atlanta,
Georgia, and ______________________________ (the "Consultant"), having a
business address at _______________________ (collectively, XXXXXXXX-XXXXXXXX,
INC. and the Consultant are hereinafter referred to as the "Parties").
RECITALS
1. XXXXXXXX-XXXXXXXX, INC. desires to retain the Consultant as an independent
contractor to perform tactical and strategic project management or
software/programming services (the "Consulting Services") on a project,
defined in attached APPENDIX A (the "Work Order"), for and on behalf Of
XXXXXXXX-XXXXXXXX, INC., or a Client Of XXXXXXXX-XXXXXXXX, INC.
2. The Consultant desires to be so retained to perform such services on the
project, subject only to XXXXXXXX-XXXXXXXX, INC.'s general right to review
the Services provided by, and work resulting from, the Consultant, and
subject to the terms and Conditions hereof.
3. The Parties intend to modify the Work Order, or add additional work orders,
from time to time; any such modification or addition will be in writing
signed by both Parties and will be automatically incorporated herein for
all purposes, as if fully set forth herein.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged and confessed, the Parties agree to
be bound by the terms of this Agreement, which are as follows:
SECTION 1: DEFINITIONS
1.1 "Know-how," as used herein, means all knowledge, whether technical or
not, relating to any business or activity of XXXXXXXX-XXXXXXXX, INC.
1.2 "Work of Authorship," as used herein, means any original expression,
whether copyrightable or not, relating to any business or activity of
XXXXXXXX-XXXXXXXX, INC., including, but not limited to, any
advertising material, compilation, data repository or structure,
design, drawing, manual, product/service description, software/program
(whether executable or not), specification, or other original writing.
1.3 "Trade Secret" as used herein, means any sensitive, confidential,
restricted, proprietary or otherwise secret
Work of Authorship or other information, whether technical or not and
regardless of form, that provides, or may provide, XXXXXXXX-XXXXXXXX,
INC. with a competitive advantage, including, but not limited to,
development projects, financial data, financial plans, formulas,
lists of actual, past or potential business contacts, customers,
suppliers or otherwise, methods, negative trade secrets, patterns,
pricing structures, processes, product plans, protocols,
research/development information, routines, techniques, test data or
other results, or other like information relating to any business or
activity of XXXXXXXX-XXXXXXXX, INC.
1.4 "Confidential Information," as used herein, means any information,
whether technical or not and regardless of form, relating to any
business or activity of XXXXXXXX-XXXXXXXX, INC., that is:
1.4.1 disclosed to, or known by, the Consultant as a consequence
of the contractual relationship between the Parties (the
"Contractual Relationship"), whether or not the Confidential
Information was developed by the Consultant; and
1.4.2 the subject of efforts by XXXXXXXX-XXXXXXXX, INC. to
maintain in confidence, or is otherwise not generally known
outside XXXXXXXX-XXXXXXXX, INC., such as any relevant
Know-how, Work of Authorship, Trade Secret or other
research/development efforts, plans or otherwise, marketing,
purchasing, accounting, engineering, pricing, bidding,
selling, or other business plan (e.g planned merger,
acquisition, joint venture, initial public offering,
potential or ongoing dispute, whether or not involving
litigation, etc.), or any information received in confidence
by XXXXXXXX-XXXXXXXX, INC. from another, such as a third
party with whom XXXXXXXX-XXXXXXXX, INC. had or has an
ongoing or prospective business relationship,
1.5 "Intellectual Property," as used herein, means any property right
(e.g., right to possess, use, dispose of, etc.) in and to any
Know-how, Work of Authorship, Trade Secret, Confidential Information
or other information or thing relating to any business or activity of
XXXXXXXX-XXXXXXXX, INC. that is subject to contract, copyright,
patent, (actual or prospective), publicity, service xxxx, trademark,
trade dress, trade name, trade, secret, or other intangible property
protection, whether domestic or foreign,
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1.6 "Work Product," as used herein, means any Know-how, Work of Authorship
Trade Secret, Confidential Information, Intellectual Property, or
other information or thing, whether tangible or intangible, relating
to any business or activity Of XXXXXXXX-XXXXXXXX, INC. created,
developed or produced by the Consultant in performance of the
Consulting Services during the Contractual Relationship.
SECTION 2: TERM AND TERMINATION
2.1 This Agreement is effective on the date given above and will continue
in affect through the completion of be Work Order, or as other agreed
in writing by both of the Parties.
2.2 The Parties agree that XXXXXXXX-XXXXXXXX, INC. may, at its sole
option, terminate the Work Order (and, hence, this Agreement), or any
portion thereof, upon fifteen days' written notice. Upon receipt of
such notice, the Consultant agrees to advise XXXXXXXX-XXXXXXXX, INC.,
of the extent to which performance has been completed through such
date, and collect and deliver to XXXXXXXX-XXXXXXXX, INC. whatever Work
Product then exists in a manner requested by XXXXXXXX-XXXXXXXX, INC.
The Consultant will be paid for all the Consulting Services performed
through the date of termination the Work Order.
2.3 The Parties agree that XXXXXXXX-XXXXXXXX, INC. may terminate this
Agreement, without notice or consent, at anytime for cause.
2.4 The Parties agree that XXXXXXXX-XXXXXXXX, INC. may terminate this
Agreement, without notice or consent at anytime, if the Work Order is
being performed for a XXXXXXXX-XXXXXXXX, INC. Client and the
XXXXXXXX-XXXXXXXX, INC. client (1) terminates the Work Order or (2)
requests that XXXXXXXX-XXXXXXXX, INC. remove the Consultant from the
project with which the Work Order is associated.
2.5 Upon termination of this Agreement, the Consultant agrees to return
all Confidential Information in the possession or Control of the
Consultant, as well as all other memoranda, notes, records, drawings,
manuals, disks or other documents, media, or thing relating to any
business or activities of XXXXXXXX-XXXXXXXX, INC. or which is the
property of XXXXXXXX-XXXXXXXX, INC.
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SECTION 3: INDEPENDENT CONTRACTOR STATUS
3.1 The Parties intend and agree that the Consultant is an independent
contractor, and not an employee, agent, joint venture, or partner of
XXXXXXXX-XXXXXXXX, INC.; nothing in this Agreement will be interpreted
or construed as create or establishing an employer/employee
relationship between the Parties.
3.2 The Parties agree that the Consultant retains the right to perform
other tactical and strategic project management or
software/programming services for third-parties during the term of
this Agreement, subject to the confidentiality and intellectual
property provisions of SECTIONS 6 and 7, and sub-SECTION 8.5, of this
Agreement.
3.3 The Parties agree, as an independent contractor, the Consultant bears
sole responsibility for:
3.3.1 reporting and paying all federal and state income tax
withholding, social security taxes (FICA), and unemployment
insurance applicable, to the extent required.
3.3.2 any health or disability insurance, retirement benefits or
other welfare or pension benefits, if any.
The Consultant agrees to defend, indemnify, and hold harmless
XXXXXXXX-XXXXXXXX, INC., its officers, directors, employees and agents,
and the administrators of XXXXXXXX-XXXXXXXX, INC.'s benefit plans, from and
against, any claims, liabilities, or expenses relating to such tax,
insurance, or benefit matters; provided that XXXXXXXX-XXXXXXXX, INC. will
cooperate with the Consultant in the defense and resolution of such claim
and not Settle or otherwise dispose of such claim without the Consultant's
prior written consent, such consent not to be unreasonably withheld.
SECTION 4: SCOPE OF CONSULTANT'S SERVICES
4.1 The Consultant agrees to document the Consulting Services in
accordance with the Work Order, such documentation will be signed by
the Consultant. Each additional work order agreed to by the Parties
will set forth, at a minimum, the Consulting Services to be performed,
the duration of such additional work order, and the fees for the
Consulting Services to be performed in accordance therewith.
4.2 The Parties agree that the Consultant will determine the method,
details, and means of performing the Consulting Services to be carried
out for XXXXXXXX-XXXXXXXX, INC.
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XXXXXXXX-XXXXXXXX, INC. will have no right to, and will not, control
the manner or determine the method of accomplishing the Consulting
Services, The Parties agree that XXXXXXXX-XXXXXXXX, INC., retains the
right to exercise a broad general power of acceptance over the result
of the Consulting Services performed by the Consultant to ensure
satisfactory performance. This power of acceptance will include the
right to inspect, stop work, make suggestions or recommendations as to
the details of the work, and request modifications to the scope of
the Work Order. In addition, XXXXXXXX-XXXXXXXX, INC. requires the
Consultant to observe at all times the security and safety Policies
of XXXXXXXX-XXXXXXXX, INC.
4.3 Other than when the Consulting Services are performed at the offices
of a XXXXXXXX-XXXXXXXX, INC. client, the Consultant will perform such
Consulting Services primarily at the Consultant's place of business,
and from time to time at a XXXXXXXX-XXXXXXXX, INC. business office
located at ___________________________ (the "XXXXXXXX-XXXXXXXX, INC.
Premises").
4.4 The Consultant agrees to perform the Consulting Services diligently
and in a professional manner.
SECTION 5: FEES, EXPENSES AND PAYMENT
5.1 The current schedule of fees for the Consulting Services performed by
the Consultant are set forth in the Work Order. The Parties agree
that the Consultant may modify such schedule for additional work
orders only.
5.2 The Consultant agrees to submit invoices to XXXXXXXX-XXXXXXXX, INC.
Consulting Services. Each invoice will provide a breakdown and
distribution of charges and expense items.
5.3 XXXXXXXX-XXXXXXXX, INC. agrees to pay each invoice in full within
thirty days after receipt thereof and in accordance with
XXXXXXXX-XXXXXXXX, INC.'s invoice procedures outlined in attached
APPENDIX B.
5.4 The Consultant agrees, during the Contractual Relationship and for a
period of one year afterwards, not to knowingly entice, persuade or
otherwise solicit any XXXXXXXX-XXXXXXXX, INC. employee or other
representative to leave the services of XXXXXXXX-XXXXXXXX, INC. for
any reason.
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SECTION 6: OWNERSHIP OF WORK PRODUCT
6.1 The Parties agree that all Work Products will belong exclusively to
XXXXXXXX-XXXXXXXX, Inc., and, to the maximum extent possible, will be
considered a work made for hire, as defined in 17 U.S.C. Section 101,
for XXXXXXXX-XXXXXXXX, INC. To the extent any such Work Product cannot
be considered a work trade for hire for XXXXXXXX-XXXXXXXX, INC, the
Consultant agrees to assign and will automatically, assign, at the
time of creation of any such Work Product without a requirement of
further consideration, regardless of any right, title or interest the
Consultant may have in any such Work Product. The Consultant agrees,
upon a request of XXXXXXXX-XXXXXXXX, INC., to take such further
actions as may be appropriate to give full and proper effect to such
assignment.
6.1.1 The Consultant agrees to promptly communicate and disclose,
in writing, to the management of XXXXXXXX-XXXXXXXX, INC. any
and all Intellectual Property which the Consultant authors,
conceives, creates, develops, makes, modifies or otherwise
invents, either solely or jointly, with others, or on or off
XXXXXXXX-XXXXXXXX, INC. premises, during the Contractual
Relationship.
6.1.2 The Consultant agrees to and, does hereby assign, grant and
convey to XXXXXXXX-XXXXXXXX, INC., its successors and
assigns, the Consultant's entire right, title and interest
in and to any and all such Intellectual Property.
6.1.3 The Consultant agrees to execute and deliver, and will
execute and deliver, any and all papers, instruments or
other documents, including assignments, and do any end all
other lawful acts that may be desirable in the opinion of
XXXXXXXX-XXXXXXXX, INC. to secure, establish and maintain
title in XXXXXXXX-XXXXXXXX, INC. its successors and assigns,
to any and all such Intellectual Property, and gave
XXXXXXXX-XXXXXXXX, INC., its successors, and assigns the
full benefit of the assignment set forth herein.
6.1.4 The Consultant acknowledges and agrees that Intellectual
Property relating to the Consultant's activities while
performing the Consultant's Services for XXXXXXXX-XXXXXXXX,
INC. and conceived or made by the XXXXXXXX-XXXXXXXX, INC.
alone or with others, after
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termination of the Contractual Relationship, have been
conceived in significant part during the Contractual
Relationship the Parties agree that such Intellectual
Property will be presumed to have been conceived during
the Contractual Relationship and is to be assigned to
XXXXXXXX-XXXXXXXX, INC.
Unless and until the Consultant conclusively establishes the
contrary, any and all such Intellectual Property is subject
to the provisions of this Agreement.
6.2 The Consultant has diligently reviewed the Consultant's records, and
hereby provides, acknowledges and agrees that any and all copyrights,
letters patent, patent applications, publicity, service marks,
trademarks, trade dress, trade names, and trade secrets, whether
domestic or foreign, listed in (attached APPENDIX C are the only
intangible interests or properties that the Consultant owns, or has
any claim to, at the time of execution of this Agreement.
SECTION 7: CONFIDENTIALITY
7.1 The Parties agree that the Consultant will be privy to certain
Confidential Information by virtue of the Contractual Relationship,
and their misappropriation (e.g, authorized access, copying,
disclosure, sale, transfer, use, etc.) of any of the Confidential
Information by the Consultant or a third-party including a party
within the Consultant's control, will likely cause irreparable harm to
XXXXXXXX-XXXXXXXX, INC. The Consultant agrees:
7.1.1 to take reasonable steps to protect and safeguard the
Confidential Information against misappropriation by such
third-parties;
7.1.2 not to misappropriate, either directly or indirectly, any of
the Confidential Information during the Contractual
Relationship, and, with respect to any pertinent portion of
the Confidential Information, for so long afterwards as such
pertinent position remains Confidential Information; and
7.1.3 to immediately notify the management of XXXXXXXX-XXXXXXXX,
INC. of any known or perceived misappropriation of the
Confidential Information, whether such misappropriation is
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a result of a negligent, or an intentional act of the
Consultant or such third-party.
7.2 The Consultant agrees not to disclose, incorporate; or otherwise use
in XXXXXXXX-XXXXXXXX, INC.'s business any confidential or proprietary
information relating to the business or activities of any third party,
if XXXXXXXX-XXXXXXXX, INC. or the Consultant is under an obligation
not to disclose, incorporate or otherwise use such confidential or
proprietary information.
7.3 The Consultant agrees not to prepare, publish, or otherwise disclose
any articles or speeches, whether technical or not, relating to any
portion of the Confidential Information or any other business or
activity of XXXXXXXX-XXXXXXXX, INC.
7.4 Notwithstanding the foregoing restrictions, the Consultant may
disclose any Confidential Information to the extent required by an
order of any court, or other governmental authority, having competent
jurisdiction, but only after XXXXXXXX-XXXXXXXX, INC. is:
7.4.1 notified in writing and provided with a copy of such order;
and
7.4.2 given an opportunity to obtain reasonable protection for
such Confidential Information in connection with such
disclosure.
SECTION 8: MISCELLANEOUS PROVISIONS
8.1 The Parties agree that this Agreement will insure to the benefit of,
and be binding upon, XXXXXXXX-XXXXXXXX, INC., and its subsidiaries and
affiliates, together with their successors and assigns, and the
Consultant, together with the Consultant's executor, administrator,
personal representative, heirs, and legatees.
8.2 The Parties hereto are independent contractors and neither is the
agent of the other.
8.3 The Parties agree that the covenants in this Agreement will be
construed as covenants independent of one another and as obligations
distinct from any other contract between the Parties. Any claim that
either party may have against the other will not constitute a defense
to enforcement of this Agreement.
8.4 The Parties agree that the covenants in SECTIONS 6 and 7, and
sub-SECTION 8.5, of this Agreement will survive termination of the
Contractual Relationship.
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8.5 The Parties agree that irreparable harm should be presumed if the
Consultant breaches any covenant in this Agreement, faithful
observance of all covenants in this Agreement is an essential
condition of the Contractual Relationship, and XXXXXXXX-XXXXXXXX, INC.
depends upon such absolute compliance, the Parties further agree:
8.5.1 this Agreement is intended to protect the rights of
XXXXXXXX-XXXXXXXX, INC. in many important ways, even a
threat of misuse of any of the Confidential Information or
Intellectual Property would be extremely harmful, its both
are essential. to the business Of XXXXXXXX-XXXXXXXX, INC.;
8.5.2 XXXXXXXX-XXXXXXXX, INC. will be entitled, as a matter of
right, to injunctive relief, both temporary and permanent,
against any breach or attempted breach of this Agreement by
the Consultant; and
8.5.3 actual damages may be very difficult to ascertain if the
Consultant breaches or attempts to breach a covenant in this
Agreement, hence XXXXXXXX-XXXXXXXX, INC, will bc entitled to
such injunctive relief without the necessity of posting
bond, or other security, or proving such actual damages,
and, further, that such injunctive relief will be cumulative
and in addition to any other remedies available to
XXXXXXXX-XXXXXXXX, INC.
8.6 The Parties agree that this Agreement will be governed by and enforced
under the laws of the State of Texas, and to the maximum extent
practicable, jurisdiction and venue in any dispute relating to the
subject matter hereof will be in Dallas County, The prevailing party
in any such dispute will be entitled to recover, in addition to any
other relief granted, reasonable Attorney fee and expense related to
such dispute.
8.7 All notices under this Agreement will be made in writing and will be
deemed given (1) hand delivered, (2) deposited in the United States
mail, registered, with proper postage prepaid and properly addressed,
return receipt requested, or (3) sent through the interoffice delivery
service of XXXXXXXX-XXXXXXXX, INC. during the term of the Contractual
Relationship,
8.8 The Parties agree that this Agreement merges and supersedes all prior
and contemporaneous agreements, undertakings, covenants, or conditions
concerning the subject matter hereof, whether oral or written, express
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or implied, to the extent they contradict or conflict with the
provisions hereof.
IN WITNESS WHEREOF, the Parties accept and execute this Agreement.
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Date XXXXXXXX-XXXXXXXX TITLE
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Date Name
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APPENDIX A
The work order that outlines the project and scope and total cost for the
work to be performed should be listed in this appendix, Additionally, an
estimate of reasonable expenses that may be incurred are included.
APPENDIX B
Expense reports are to be submitted to the accounting department on the last
day of XXXXXXXX-XXXXXXXX'x accounting month to allow timely billing of
expenses to clients and reimbursement of expenses to employees. Expense
reports received more than three (3) days late will be reimbursed the
following month. Reports are to be approved and signed by the appropriate
Managing Director.
BILLABLE EXPENSES
It is the responsibility of the Project Manager to understand the client's
policies regarding billable, expenses and to communicate that to all
Consultants that will xxxx to the project. Expenses that are not billable to
the client should not be incurred. In the absence of other instructions, the
guidelines listed below will be followed in billing clients and reimbursing
employees. All procedures should conform to IRS requirements.
TRAVEL
The date of the trip, destination and client or purpose of the trip must be
clearly stated. Meals charged to the client should NOT EXCEED $35.00 per day
for each person assigned to a project. Meal expenses are reported as actual
amounts, to a per diem allowance.
Drinks or wine as part of the meal allowance may be charged to the client,
however, personal entertainment "clubbing" is not to be charged.
Business entertainment must be specifically authorized by the appropriate
Project Manager. All entertainment must be documented to include name,
description of activity, and the nature of the business discussion.
Personal entertainment (including in-room movies) should not be charged to
the client,
Laundry and valet services are not billable to the client unless the
assignment involves more than five (5) consecutive days.
Telephone calls must be identified and billed appropriately. Telephone
charges are determined by the subject or project being discussed, not the
location from which the call is made. Individual telephone bills are
distributed for identification of charges and are expected to be returned to
the accounting department promptly. Calls ARE NOT TO BE MADE FROM AIRPHONES.
Efforts should be made to control expenses in your choice of hotels and
restaurants. Use hotels that allow the client a corporate rate whenever
possible. Charges on hotel bills must be itemized.
The most reasonable type of transportation must be chosen. Generally taxi
rides are cheaper than rental cars. Try to plan plane routes and schedules
that avoid excess charges.
Rental cars should be charged on Diner's Club to take advantage of the
insurance they provide. If this is not possible, be sure to take out the
rental car insurance.
An employee working out-of-town may elect to remain on site or travel to a
destination other than the home office over the weekend. However, additional
charges incurred for transportation, laundry, or meals are to be paid by the
individual.
Upgrades or first class tickets are not to be used.
Mileage may be charged at $.29 per mile. Please use the following XXXXXXXX
XXXXXXXX standards:
Office to Xxxxxxxxxx Airport -- 15 Miles
A contractor traveling from his/her home (instead of the office) to one of
these destinations should use these standards.
Expenses OVER $25.00 MUST be supported with receipts. For billing, purposes
it is important to try to document all expenses, regardless of the amount.
ALL travel arrangements will be made through the company authorized travel
agent.
OTHER BILLABLE EXPENSES
All non-travel expenses are reviewed by the Project Manager. The Project
Manager must give prior approval to all purchases that will be billed to the
client.
Production expenses are billed as follows:
copies $.15
regular disks $1.00
high-density disks $3.00
transparencies $1.00
(graphics, Lotus, word processing, graphing) $25.00 per hour
Overtime secretary production time $37.50 per hour
The client is billed for actual telephone, mail, FAX and computer
expenses,
NON-BILLABLE EXPENSES
TRAVEL/MARKETING
Expenses relating to marketing must be approved by the Practice Director or
Sales Manager and must conform to a planned budget. The basic guidelines for
billable travel will apply for sales travel as well.
All marketing related entertainment must be documented to include client
name, date, description of activity, and the nature of the business
discussion.
XXXXXXXX-XXXXXXXX expects employees to call the office twice a day when they
are traveling and allows a daily telephone call home. Marketing calls are
charged to the individual's practice. Calls are not to be made from
airphones.
OTHER EXPENSES
Purchase requisitions are required for all non-travel purchases. The
requisitions must be signed by your Practice Director and must accompany all
purchases listed on an expense report or submitted to the Accounting
Department for payment. Purchases over $1,000 also require the approval of
the Chief Financial Officer.
Responsibility for planning has been assigned for the following areas:
Computers/software Xxxxx Xxxx
Xxxx Xxxxxx
Human Resources Xxxxxxxx Xxxxxx
Furniture/Secretarial Needs/
Office Space/Supplies Xxxx XxXxxxxxxxx
Flowers/Gifts Xxxx XxXxxxxxxxx
Library Materials Xxxxx Xxxxxx
Advertising/Public Relations Xxxxxxx Xxxx
Please check with these people to avoid duplication or unplanned expenditures.
All other expenses are to be incurred only with the approval of the Practice
Director and will be expensed to the practice.
INVOICE PROCEDURES
Listed below are the guidelines you should follow when submitting an invoice
to XXXXXXXX XXXXXXXX.
TIME SHEETS
Time sheets are to be submitted twice monthly, on the 15th and the end of the
month. Billing periods are from the 1st through the 15th, and the 16th
through the end of the month. Time sheets can be faxed to Accounting;
however, the original must be sent to Accounting as soon as possible. The
correct time period, including month, day and year, should be indicated and
the time sheet must be signed by the contractor and initialed by the
appropriate supervisor. Use the correct project number and record the hours
worked each day on the project. Non-billable time is recorded with a project
number which indicates the department for which work is being done. Record
only the time that you have been authorized by your supervisor to xxxx.
Invoices for labor must be concurrent with the time period and be for the
same number of hours on the time sheet. They should be in a format which
provides the name and address of the contractor, the number of hours worked,
the project number(s), the rate being charged, and the total due. Invoices
must be approved by the project supervisor before payment can be made.
EXPENSE REPORTS
Expense reports should be submitted using QuickXpense software. Expenses are
to be submitted once a month, on the 25th. Do not submit more than one
expense report per month. Project numbers to be billed should be clearly
indicated; nonbillable expenses must be designated as Admin or Marketing, and
the appropriate department indicated. Airline tickets purchased by the,
company must be included on the report in the column headed "Paid By
Company." The face of the report can be faxed to Accounting; however, the
original and all necessary receipts must be in Accounting before
reimbursement can be made. Submit a separate invoice that corresponds to the
expense report and have it approved by your supervisor. Expense checks are
issued on the 15th of the month following the 25th submission date.
The Accounting fax number is 000-000-0000.
Please see XXXXXXXX XXXXXXXX'x Controller if you have any questions or would
like additional information.
APPENDIX C
This appendix refers to Section 6...6.2
