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EXHIBIT 10.15
Client Name
Convergent Group Corporation Agreement
FORM OF
AGREEMENT
BETWEEN
[Name of Client]
_______________________________
AND
CONVERGENT GROUP CORPORATION
(Reference No.______________)
This Agreement (hereinafter referred to as "Agreement") is made and entered into
by and between _________________________ (hereinafter referred to as "CLIENT")
and Convergent Group Corporation (hereinafter referred to as "CONSULTANT) for
the sale of hardware manufactured by third parties hereto (hereinafter referred
to as "Hardware"), the licensing and maintenance of Third-Party Software and
Operating System Software (hereinafter referred to as "Software"), associated
documentation (hereinafter referred to as "Documentation"), and professional
Consultant Services required to provided technical and management consulting
expertise to CLIENT for custom application software and custom application
software systems as well as provide technical services related thereto as
defined in Attachments, attached hereto and incorporated herein by this
reference.
1. STATEMENT OF SERVICES - SCOPE OF WORK: CONSULTANT will provide project
management, custom software, outage management, hardware/software selection
requirements, mapping conversion selection requirements, maintenance,
consulting and systems integration services as detailed in the Attachment
A - Scope of Work.
All Work shall be performed in accordance with sound and generally
accepted professional practices and industry standards by professional,
managerial, and administrative personnel fully qualified in the respective
professional discipline required.
CONSULTANT shall have the complete professional, managerial, or technical
responsibility for the validity, accuracy, and reliability of the Work
performed by CONSULTANT. CLIENT shall have the complete professional,
managerial, or technical responsibility for the validity, accuracy, and
reliability of the Work performed by CLIENT. Both parties will cooperate
with each other and provide timely information and timely status to the
other party regarding their development efforts in order to facilitate the
success of the project by not delaying the Work performed by the other
party.
2. PRICES: CONSULTANT charges for the purchase of Consulting Services, the
Hardware, licensing of Software, and Documentation are specified in the
Attachments. The prices set forth in such Attachments are exclusive of and
CLIENT agrees to pay:
(a) CONSULTANT charges for the purchase of Consulting Services requested
by CLIENT or (ii) services required and charges incurred due to CLIENT
failure to complete its site preparation prior to a mutually agreed
schedule for delivery of Hardware and/or Software; and,
(b) all taxes, however designated, paid or payable by CONSULTANT
hereunder, exclusive of taxes based on the net income of CONSULTANT.
If any charges under this Agreement are exempt from sales or use tax
liability, CLIENT shall provide to CONSULTANT, upon execution of this
Agreement, evidence of tax exemption acceptable to the relevant taxing
authority.
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(c) freight and shipping charges that will be invoiced to CLIENT at a rate
of one and one-half percent (1 1/2%) of the list price of each item of
Hardware ordered hereunder.
3. PAYMENT TERMS: CONSULTANT charges for the Hardware (including the freight
and shipping charges referenced above) and the licensed Software will be
invoiced upon shipment and will be payable by the CLIENT within thirty (30)
days from the date of invoice. All labor and services performed by the
CONSULTANT shall be invoiced monthly on a percent task completion basis
against a lump sum labor fee. All other charges will be invoiced when
incurred and will be payable by the CLIENT within thirty (30) days from the
date of invoice. CONSULTANT reserves the right to assess a late payment
charge of one and one-half percent (1 1/2%) per month, or at the maximum
rate permitted by law, whichever is less, on the unpaid balance of any
amount past due.
4. CONSULTANT EMPLOYEES: CONSULTANT personnel shall be and will remain at all
times, during this Agreement, employees of CONSULTANT. CLIENT shall not be
responsible for any payments due CONSULTANT employees on account of, or
in connection with, this Agreement.
CONSULTANT employees assisting CLIENT under this Agreement who are found,
in CLIENT's sole opinion to be unsatisfactory for services to be performed
hereunder, shall be removed by CONSULTANT immediately upon receipt of
written notice from CLIENT. Such employee shall be replaced with another
CONSULTANT employee satisfactory to CLIENT as soon as possible.
5. NON-SOLICITATION OF EMPLOYEES: CLIENT agrees that CLIENT will not, during
the term of this Agreement and for a period continuing for twenty-four (24)
months after the expiration or termination of this Agreement for any
reason, directly or indirectly solicit, influence, entice, or encourage any
person who is then or had been within one (1) year of such action an
employee of CONSULTANT to cease his or her relationship with CONSULTANT, or
otherwise interfere with, disrupt, or attempt to disrupt any past, present,
or prospective relationship, contractual or otherwise, between CONSULTANT
and any of its employees.
CLIENT further agrees that CLIENT will not, during the term of this
Agreement and for a period continuing for twenty-four (24) months
thereafter, hire or attempt to hire, whether as an employee, consultant, or
otherwise any person who was employed by CONSULTANT at any time during the
term of this Agreement.
CLIENT acknowledges and agrees that the provisions of this section are
essential to CONSULTANT and are reasonable and necessary to protect the
legitimate interests of CONSULTANT and that the damages sustained by
CONSULTANT as a result of a breach of the agreements contained herein will
subject CONSULTANT to immediate, irreparable harm and damage, the amount of
which, although substantial, could not be reasonably ascertainable, and
that recovery of damages at law will not be an adequate remedy. Therefore,
CLIENT agrees that CONSULTANT, in addition to any other remedy it may have
under this Agreement or at law, shall be entitled to injunctive and other
equitable relief to prevent or curtail any breach of any provision of this
section. CLIENT waives any right to the posting of a bond in the event of
an issuance of a temporary restraining order, preliminary injunction, or
permanent injunction upon the issuance of said order by a court of
competent jurisdiction.
This section shall survive termination or expiration of this Agreement for
any reason.
If the scope of any restrictions contained in this section is too broad to
permit enforcement of such restriction to its fullest extent, then such
restriction shall be enforced to the maximum extent permitted by law and
CLIENT hereby consents and agrees that the scope may be judicially modified
in any proceeding brought to enforce such restriction.
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6. INSURANCE: During the term of this Agreement for CONSULTANT services
only, CONSULTANT shall provide and maintain at its own expense the
following kinds of insurance with limits of liability as set forth below:
INSURANCE LIMITS OF LIABILITY
--------- -------------------
Workmen's Compensation Statutory
Commercial General Liability $2,000,000
Automobile Liability $1,000,000
CONSULTANT agrees to provide CLIENT with a certificate of insurance
evidencing the coverages required above and stating the policy numbers and
inception and expiration dates of all policies. This certificate of
insurance shall also provide for thirty (30) days' prior notice to the
CLIENT in the event of cancellation of the policy.
7. INDEPENDENT CONTRACTOR STATUS: The parties to this Agreement are
independent contractors, and none of the provisions of this Agreement
shall be interpreted or deemed to create any relationship between such
parties other than that of independent contractors. Nothing contained in
this Agreement shall be construed to create a relationship of employer and
employees, master and servant, principal and agent, or coventurers between
CLIENT and CONSULTANT, between CLIENT and any employee of CONSULTANT, or
between CONSULTANT and any employee of CLIENT. CLIENT shall have no right
to control or direct the details, manner, or means by which CONSULTANT
performs the services hereunder, provided that such services shall be
performed to CLIENT's reasonable satisfaction. In performing such
services, CONSULTANT shall have no control over or management authority
with respect to the CLIENT or its operations.
8. SPECIAL CONDITIONS: The following conditions are incorporated into the
understandings associated with this Agreement:
(a) If the project scope of work is requested to be increased or changed
by CLIENT in such a manner as to require additional labor or expenses
and CONSULTANT agrees to such changes, the parties will adjust both
scope and fees through a written Change Order to this Agreement.
(b) CLIENT and CONSULTANT reserve the right to subsequently amend this
Agreement to include additional services or associated products.
Compensation for additional services or products will be as agreed by
CLIENT and CONSULTANT and may be incorporated as Attachments to this
Agreement. All work to be accomplished will be defined in written
Change Orders approved by the parties. The Change Orders will define
the objectives to be addressed, the scope of services to be provided,
the products to be delivered, the schedule to be met, special
considerations (as appropriate), and a Change Order price estimate or
fixed fee. The CONSULTANT will be reimbursed as provided in the
Change Order.
(c) CONSULTANT's project team members will have the opportunity and
authority to contact personnel at CLIENT directly in the performance
of technical consulting duties.
(d) Other terms and conditions may be added to this Agreement in the
future by mutual written consent of both parties.
9. EQUAL EMPLOYMENT: In performing the services hereunder, CONSULTANT agrees
to comply with all applicable local, state, and federal laws, regulations,
and orders relating to fair and equal employment opportunity practices and
policies.
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10. SITE PREPARATION/DELIVERY/INSTALLATION: CLIENT shall prepare and maintain
an installation site in accordance with the Hardware manufacturer's
published specifications. Risk of loss to Hardware and Software shall pass
to CLIENT upon delivery of same to the installation site.
10.1 CONSULTANT or its authorized agent will install the Hardware and/or
Software.
10.2 The Hardware and/or Software will be deemed accepted when used
by CLIENT in the ordinary course of its business, which includes
production processing.
11. CONSULTANT TRAINING: Subject to a mutually agreed to schedule, CONSULTANT
will provide training to the CLIENT in the use of the CONSULTANT Software
listed in Attachment A -- Scope of Work. The extent of such training,
number of CLIENT personnel to be trained, location of such training, and
the appropriate price are reflected in the Attachments.
12. HARDWARE MAINTENANCE: CONSULTANT will provide Hardware maintenance to
CLIENT for the applicable period provided by the Hardware manufacturer(s)
in the purchase price of the Hardware; thereafter, maintenance shall be the
responsibility of CLIENT who may contract directly with the Hardware
manufacturer(s) or CLIENT may purchase maintenance services from CONSULTANT
in accordance with the provisions of Attachment D hereto.
13. APPLICATION SOFTWARE MAINTENANCE: CONSULTANT will maintain the Custom
Software identified in Attachment A -- Scope of Work hereto in accordance
with mutually agreed upon maintenance provisions for the entire duration of
this Agreement; thereafter, CLIENT may either terminate such maintenance
coverage or may continue to purchase maintenance services from CONSULTANT
in accordance with the provisions of Attachment D hereto.
14. WARRANTY AND DISCLAIMER: CONSULTANT warrants that on the Installation Date
the Hardware will be free from defects in materials and workmanship and
that the Software will perform substantially in compliance with the
Documentation provided by CONSULTANT.
CONSULTANT MAKES NO OTHER WARRANTIES OF ANY KIND EITHER EXPRESS OR IMPLIED,
INCLUDING, BUT NOT BY WAY OF LIMITATION, ANY IMPLIED WARRANTIES OF
MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE WITH RESPECT TO THE
HARDWARE, SOFTWARE, DOCUMENTATION, TECHNICAL INFORMATION, AND TECHNICAL
ASSISTANCE PROVIDED BY CONSULTANT PURSUANT TO THIS AGREEMENT.
15. LIMIT OF LIABILITY: CONSULTANT's liability arising out of its performance
under this Agreement, with the exception of Section 17 -- Indemnity, shall
be limited to claims directly attributable only to the failure of
CONSULTANT's agents or employees to exercise the degree of skill and
performance normally exercised by duly qualified persons performing similar
functions. The amount of CONSULTANT'S liability shall not exceed the total
amount of labor fees for services rendered under this Agreement. IN NO
EVENT SHALL CONSULTANT, ITS EMPLOYEES OR AGENTS BE LIABLE FOR LOSS OF
EARNINGS, LOSS OF PROFITS, LOSS OF INTEREST, JUDGMENTS, AWARDS, OR
CONTRIBUTION THERETO, OR ANY OTHER SPECIAL, INDIRECT, OR CONSEQUENTIAL
DAMAGE, HOWEVER CAUSED.
16. LIMITATION OF MAINTENANCE REMEDIES: CONSULTANT'S entire liability and the
CLIENT's exclusive remedy shall be that CONSULTANT will, pursuant to
applicable maintenance provisions, restore the Hardware to working order if
it should fail due to defects in materials and workmanship and correct the
Application Software if it should fail to substantially conform to the
Documentation provided by CONSULTANT, during the period in which CONSULTANT
is providing maintenance
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services in accordance with Sections 12 and 13 herein. However, if
CONSULTANT is unable to cure such defects, as CLIENT's exclusive remedy,
CONSULTANT will grant CLIENT a refund for the Hardware and/or Application
Software involved, based upon its straight line depreciated value over the
life of the product as determined by CONSULTANT and accept its return.
16.1 CONSULTANT's entire liability for damages for any cause whatsoever,
and regardless of the form of action, shall be limited to CLIENT's
actual direct damages not to exceed the amount paid to CONSULTANT
under this Agreement for the specific item that caused the damage or
that is the subject matter of, or is directly related to, the cause of
action. This limitation is not applicable to claims for patent,
copyright, and trade secret infringement which claims are covered by
Section 17.
16.2 IN NO EVENT SHALL CONSULTANT, ITS OFFICERS, AGENTS, AND EMPLOYEES BE
LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT UNDER ANY THEORY OF
TORT, CONTRACT, STRICT LIABILITY, OR OTHER LEGAL OR EQUITABLE THEORY
FOR LOST PROFITS, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES.
17. INDEMNITY: CONSULTANT shall defend, at its expense, any action brought
against CLIENT to the extent that it is based upon a claim that any
Hardware, Software, or Documentation infringes a patent or copyright or
violates any third-party trade secret or proprietary right and shall pay
all costs and damages finally awarded against CLIENT, provided that
CONSULTANT is given prompt written notice of such claim and is given
information, reasonable assistance, and sole authority to defend or settle
the claim.
17.1 If any such action is brought, or in CONSULTANT's opinion is likely to
be brought, then CONSULTANT may at its election (i) obtain for CLIENT
the right to continue using the Hardware, Software, or Documentation;
(ii) replace or modify such so that it becomes noninfringing; or (iii)
if such remedies are not reasonably available, accept CLIENT's return
of the Hardware, Software, or Documentation and grant CLIENT a refund
for the Hardware, Software, or Documentation involved, based upon its
straight line depreciated value over the life of the product as
determined by CONSULTANT.
17.2 CONSULTANT shall have no obligation under this section if the alleged
infringement or violation is based upon the use of the Hardware,
Software, or Documentation in combination with other hardware,
software, or documentation not furnished by CONSULTANT or if such
claim arises from CONSULTANT's compliance with CLIENT's designs,
specifications, or instructions or from CLIENT's modification of the
Hardware, Software, or Documentation.
17.3 CONSULTANT shall have no liability for infringement of patents or
copyrights, or violation of trade secrets or proprietary rights except
as expressly provided in this section.
17.4 Each party shall be responsible for willful misconduct and negligent
acts or omissions of its agents and employees. Each party shall
indemnify, hold harmless, and defend the other from and against all
liabilities for bodily injury and property damage caused by the
willful or negligent act or omission of the indemnifying party or its
agents or employees. This section shall survive termination or
expiration of this Agreement for any reason.
18. PATENTS AND INVENTIONS: The CONSULTANT has developed numerous proven
proprietary materials that provide the methodologies for the development of
the Deliverables. The use of these materials contributes to the
cost-effectiveness of CONSULTANT services. CLIENT agrees that CONSULTANT
shall own all such products, materials, and methodologies and that CLIENT
shall have or obtain no rights in such proprietary products, materials, and
methodologies except pursuant
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to a separate written agreement executed by the parties. CLIENT
understands that CONSULTANT proprietary costs analysis and strategic
planning models and facilities database models and designs or certain
software products may be used under this Agreement, and CLIENT agrees
not to exhibit, distribute, or otherwise disclose any such proprietary
methods and materials to external or third parties without the prior
approval in writing from CONSULTANT. The CONSULTANT shall continue to
market, distribute, make derivative works from, and sell similar work
to other companies without further notice to nor consent from CLIENT.
Nothing in this Agreement shall restrict or prohibit CONSULTANT's
right to use concepts, techniques, and know-how used or developed in
the course of performing these services.
CONSULTANT shall be the owner of copyright or other intellectual
property rights in such Deliverable Products. CONSULTANT grants to
CLIENT a perpetual, royalty-free license to reproduce and use, for
CLIENT's internal purposes only, any materials developed for CLIENT
related to this Agreement, not including Third-Party Software
Licenses. CLIENT agrees not to exhibit, distribute, or otherwise
disclose any proprietary software, methods, or materials to external
or third parties without the prior approval in writing from
CONSULTANT.
19. TERMINATION: If either party shall at any time commit any
material breach of any covenant or warranty under this Agreement
(other than a breach of Section 9) and (i) shall fail to cure such
breach within thirty (30) days of written notice of such breach or
(ii) if it is not curable within thirty (30) days of written notice,
shall fail to diligently commence to cure it within thirty (30) days
of notice, the defaulted party may at its option, and in addition to
any other remedies to which it is entitled, terminate this Agreement
by written notice.
19.1 Except as may be prohibited by the U.S. bankruptcy laws, in
the event of either party's insolvency or inability to pay
debts as they become due, voluntary or involuntary
bankruptcy proceedings by or against a party hereto, or
appointment of a receiver or assignee for the benefit of
creditors, the other party may terminate this Agreement by
written notice.
19.2 CONSULTANT reserves the right to terminate this Agreement
upon written notice to CLIENT if CLIENT fails to make full
payment within ninety (90) days from date of invoice.
19.3 All license rights granted, for which CLIENT has not made
payment in full, shall cease upon any termination or
cancellation of this Agreement. Within fifteen (15) days
after termination of the license rights granted herein or
termination or cancellation of this Agreement for any
reason, CLIENT agrees to certify to CONSULTANT in writing
that the original and all copies of the Software and
Documentation, in any form, have been destroyed.
19.4 If this Agreement is terminated after CONSULTANT has
commenced any work, mobilization, or other off-site
activities under this Agreement, CONSULTANT will be paid its
actual incurred costs and legally committed accrued costs,
determined in accordance with generally accepted accounting
principles consistently applied, provided that if
compensation under this Agreement is on a time and materials
basis, CONSULTANT will be compensated at the quoted rates
for time spent and materials purchased (or committed to be
purchased) as of the date of termination plus any time
reasonably required to demobilize CONSULTANT's services
hereunder.
20. CONFIDENTIALITY OF INFORMATION. The parties acknowledge that in the
course of this Agreement they will have access to, and/or will be in
possession of, Confidential Information of the other. "Confidential
Information" shall mean information regarded by that party as
confidential, including but not limited to, information relating to
its past, present, or future research, development, or business
affairs; future project purchases; any proprietary products,
materials, or methodologies; all items prepared for and submitted to
CLIENT in connection with work performed under this
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Agreement, including drafts and associated material; and any other
information marked or, in the case of information verbally disclosed,
verbally designated as confidential at the time of disclosure by that
party.
20.1 Each party shall hold in confidence, in the same manner as it holds
its own confidential information of like kind, all Confidential
Information of the other to which it may have access hereunder. Access
to Confidential Information shall be restricted to those of the
party's personnel with a need to know and engaged in a permitted use.
CONSULTANT's deliverable products marked confidential shall neither be
exhibited nor distributed in any way to parties external to CLIENT.
20.2 The foregoing shall not prohibit or limit either party's use of
information, including but not limited to, ideas, concepts, know-how,
techniques, and methodologies which (i) are or become generally
available to and known by the public (other than as a result of an
unpermitted disclosure directly or indirectly by the receiving party
hereunder or its agents, representatives, or advisors), (ii) is or
becomes available to it on a nonconfidential basis from a source other
than the furnishing party or its affiliates, advisors, agents, or
representatives, provided that such source is not and was not bound by
a confidentiality agreement or other obligation of secrecy to the
furnishing party, (iii) has already been or is hereafter independently
acquired or developed by it without violating any confidentiality
agreement or other obligation of secrecy to the furnishing party, or
(iv) is required by law or regulation to be disclosed, provided,
however, that it shall give the furnishing party reasonable advance
notice of such requirement so that the furnishing party may seek
appropriate legal relief against such disclosure.
20.3 The parties hereto agree and acknowledge that any such Confidential
Information shall be considered for all purposes confidential and
privileged information under any local, state, or federal law and such
Confidential Information shall not be released pursuant to an local,
state, or federal act, law, or statute concerning "freedom of
information."
20.4 This section shall survive termination or expiration of this Agreement
for any reason.
20.5 CLIENT acknowledges and agrees that the provisions of this section are
essential to CONSULTANT and are reasonable and necessary to protect
the legitimate interest of CONSULTANT and that the damages sustained
by CONSULTANT as a result of a breach of the agreements contained
herein will subject CONSULTANT to immediate, irreparable harm and
damage, the amount of which, although substantial, could not be
reasonably ascertainable, and that recovery of damages at law will not
be an adequate remedy. Therefore, CLIENT agrees that CONSULTANT, in
addition to any other remedy it may have under this Agreement or at
law, shall be entitled to injunctive and other equitable relief to
prevent or curtail any breach of any provision of this section. CLIENT
waives any right to the posting of a bond in the event of an issuance
of a temporary restraining order, preliminary injunction, or permanent
injunction upon the issuance of said order by a court of competent
jurisdiction.
21. RETURN OF INFORMATION: Upon termination or expiration of this Agreement for
any reason, CONSULTANT shall return to CLIENT any confidential information
or proprietary information belonging to CLIENT which is in the CONSULTANT's
possession, except that CONSULTANT shall be entitled to retain a duplicate
set of any deliverable products created in connection with this Agreement.
Upon termination or expiration of this Agreement for any reason, CLIENT
shall return to CONSULTANT any confidential information or proprietary
information belonging to CONSULTANT which is in the CLIENT's possession,
except that CLIENT shall be entitled to retain
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a duplicate set of any deliverable products created in connection with this
Agreement. This section shall survive termination or expiration of this
Agreement for any reason.
22. GOVERNING LAW: This Agreement will be governed by the laws of the State of
Colorado without regard to the conflicts of laws principles of such state.
23. ENFORCEMENT EXPENSES: In the event of a breach or threatened breach of any
term or provision of this Agreement, the nonbreaching party shall be
entitled to all of its remedies available at law or in equity and, in
addition, shall be entitled to be reimbursed for all of its costs and
expenses in enforcing this Agreement, including but not limited to,
reasonable attorney's fees. This section shall survive termination or
expiration of this Agreement for any reason.
24. CAPTIONS AND HEADINGS: The captions and headings herein are for convenience
only and in no way shall be used in the interpretation or construction of
this Agreement.
25. WAIVER OF COMPLIANCE: Any failure by any party hereto to enforce at any
time any term or condition of this Agreement shall not be considered a
waiver of that party's right to later enforce each and every term and
condition hereof.
26. NOTICES: Any notice required or permitted to be made or given to either
party hereto will be sufficiently made or given on the date of receipt or
on the refusal date as specified on the return receipt in the case of
overnight courier or certified mail, if sent to such party as its address
set forth below, or such other address as it shall designate by written
notice to the other party. Notice shall be deemed given on the date of
delivery in the case of personal delivery.
CLIENT:
Attn:
Telephone:
Facsimile:
CONSULTANT:
Convergent Group
0000 X. Xxxxxxx'x Xxxxx Xx., Xxxxx 000
Xxxxxxxxx, Xxxxxxxx 00000
Attn: Xxxxx X. Xxxxxxxxxx, CEO
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
27. SEVERABILITY: If any provision of this Agreement or the application thereof
to any party or circumstance shall be declared invalid, illegal, or
unenforceable, the remainder of this Agreement shall be valid and
enforceable to the extent permitted by applicable law. In such event, the
parties shall use their best efforts to replace the invalid or
unenforceable provision with provision that, to the
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extent permitted by applicable law, achieves the purposes intended under
the invalid or unenforceable provision.
28. DISPUTE RESOLUTION ARBITRATION: Any and all disputes arising out of or in
connection with the execution, interpretation, performance, or
nonperformance of this Agreement or any other certificate, agreement, or
other instrument between, involving, or affecting the parties (including
the validity, scope, and enforceability of this arbitration agreement)
shall be solely and finally settled by a single arbitrator in accordance
with the Commercial Rules of the American Arbitration Association (the
"Rules"); provided, however, that in the event of conflict between the
Rules and the terms of this Agreement, the terms of this Agreement shall
govern. The place of arbitration shall be Englewood, Colorado, and the law
applicable to the arbitration procedure shall be the Federal Arbitration
Act (9 USC P2). To commence arbitration of any such dispute, the party
desiring arbitration shall notify the other party in writing in accordance
with the Rules. In the event that the parties fail to agree on the
selection of an arbitrator within fifteen (15) days after the delivery of
such notice, the arbitrator shall be selected by the American Arbitration
Association upon the request of either party.
The parties agree that the award of the arbitrator shall (1) be the sole
and exclusive remedy between them regarding any claims, counterclaims, or
issues presented to the arbitrator; (2) be final and subject to no
judicial review; and (3) be made and shall promptly be payable in U.S.
dollars free of any tax, deduction, or offset. The parties further agree
that any costs, fees, or taxes incident to enforcing the award shall, to
the maximum extent permitted by law, be charged against the party
resisting such enforcement. The parties hereto agree that judgment on the
arbitration award may be entered and enforced in any court having
jurisdiction over the parties or their assets.
Each party shall, except as otherwise provided herein, be responsible for
its own expenses, including legal fees, incurred in the course of any
arbitration proceedings. The fees of the arbitrator shall be divided
evenly between the parties.
CONSULTANT shall carry on and be paid for the services not in dispute and
maintain the schedule for services during any arbitration or litigation
proceedings, unless otherwise agreed by CONSULTANT and CLIENT in writing.
29. ATTACHMENTS:
Attachment A: Scope of Work
Attachment B: Pricing and Billing
Attachment C: Schedule
30. GENERAL: This Agreement, and any license granted therein, may not be
assigned or transferred by CLIENT, in whole or in part, either voluntarily
or by operation of law, without the prior written consent of CONSULTANT.
30.1 The failure of either party to exercise any of its rights or to
enforce any of the provisions of this Agreement on any occasion shall
not be a waiver of such right or provision, nor affect the right of
such party thereafter to enforce each and every provision of this
Agreement.
30.2 Prior to delivery, CONSULTANT reserves the right, at no additional
charge to CLIENT, to make substitutions and modifications in the
design and/or specifications of Hardware, Software, or Documentation
provided hereunder; provided that such substitutions or
modifications do not materially and adversely affect performance or
function.
30.3 Neither party shall be liable for any delay in or failure of
performance due to any cause or condition beyond its reasonable
control, whether foreseeable or not.
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30.4 Neither party shall issue any news release, public announcement, or
advertisement of any portion of the content of this Agreement
without the prior written consent of the other party.
30.5 No action, regardless of form, may be brought by either party more
than two (2) years after the cause of action has accrued or, in the
case of any action for nonpayment, more than two (2) years from the
date the last payment was due.
30.6 There shall be no export of any Hardware, Software, or Documentation
provided hereunder without (a) the express written consent of
CONSULTANT and (b) CLIENT obtaining any required prior authorizations
from the U.S. Department of Commerce or other applicable authority.
Diversion contrary to U.S. law is prohibited.
30.7 This Agreement and the Attachments hereto constitute the entire
agreement between the parties and shall supersede all proposals or
prior agreements, oral or written, and all other communications
between the parties relating to the subject matter of this
Agreement. If CLIENT issues a purchase order, memorandum, or other
instruments covering the goods or services provided under this
Agreement, it is agreed that such document is for CLIENT's internal
purposes only unless it is accepted in writing by CONSULTANT, in
which case all terms and conditions contained therein which are
additional to or inconsistent with this Agreement shall be of no
force and effect. The Agreement shall not be varied other than by an
instrument in writing of subsequent date hereto, executed by the duly
authorized representative of both parties. The Agreement shall be
construed in accordance with, and its performance governed by, the
laws of the State of Colorado excluding its laws on conflict of law.
IN WITNESS WHEREOF, the parties have executed this Agreement effective the ____
day of ____, 2000.
CLIENT:
--------------------------
Customer Name
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Address
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City State Zip Code
------------------------------ ------------------- --------
By
---------------------------------- (Authorized Signature)
Name
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Title
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Date
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Proprietary and Confidential Convergent Group/___P
-10-
11
Client Name
Convergent Group Corporation Agreement
Received by:
CONVERGENT GROUP
By
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Name
----------------------------------------------------------------------------
Title
---------------------------------------------------------------------------
Date
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Proprietary and Confidential Convergent Group/____P
-11-
