Exhibit 10.3
INDEPENDENT CONTRACTOR AGREEMENT
This Independent Contractor Agreement ("Agreement") is entered into on July 1,
2005 between Intelligroup, Inc., a New Jersey corporation with an address at 000
Xxxxxxxx Xxxxxx, 00xx Xxxxx, Xxxxxx, Xxx Xxxxxx 00000-0000 ("Intelligroup"), and
Pontus, Inc., a New York corporation with an address at [insert address]
("Company").
STATEMENTS:
Whereas, Intelligroup seeks to retain independent contractor(s) to provide
certain legal department support functions;
Now therefore, in consideration of the mutual promises set forth and other good
and valuable consideration, the receipt of which is hereby acknowledged, the
parties hereby agree as follows:
TERMS AND CONDITIONS:
1. TERM. Company shall provide independent contractor(s) ("Contractor(s)")
to Intelligroup as set forth in a Statement of Work ("SOW"). Each SOW
shall reference this Agreement. To the extent there are any conflicts
or inconsistencies between this Agreement and any SOW, the provisions
of this Agreement shall govern and control.
2. PAYMENT.
a. Intelligroup shall pay Company for the services of the
Contractor(s) as set forth in the SOW. No other payment for
overtime, expenses, taxes, or any other costs and fees shall
be charged by Company to Intelligroup, unless expressly
approved by Xxxxxxx Xxxxx or Xxxxxx Xxxxxx, with the exception
of train travel to and from New York City to Edison, New
Jersey for purposes of performing services as set forth in the
SOW, which expense is approved hereby.
b. Company shall provide written time sheets as set forth in the
SOW. These time sheets shall at a minimum display the name of
each Contractor(s) supplying services and the number of hours
such Contractor(s) provided its services to Intelligroup.
c. Company shall present invoices to Intelligroup for payment of
its services as set forth in the SOW. Each invoice shall
include the associated time sheets. Company shall post each
invoice by mail to Intelligroup at the address specified in
this Agreement, to the attention of Accounts Payable.
d. Intelligroup shall pay the undisputed amount of each correct
and verifiable invoice from Company within thirty (30) days of
receipt of the invoice.
3. INDEPENDENT CONTRACTOR STATUS. The parties are independent contractors
to each other and no agency, employment, or partnership is hereby
created by and between the parties. Neither Company, the Contractor(s),
or Company's employees shall be deemed to be employees of Intelligroup.
Company shall be solely responsible for the payment of all
compensation, including any overtime, to its Contractor(s), including
provisions for employment taxes, workmen's compensation and any similar
taxes associated with employment of Company's personnel and
reimbursement of expenses. Contractor(s) shall not be entitled to any
benefits paid or made available by Intelligroup to its employees.
Company will indemnify, defend and hold Intelligroup harmless from any
claim for payment of compensation (including benefits) or salary
asserted by any Contractor(s) or any other liabilities, costs, and
expenses (including, but not limited to, attorneys' fees) associated
with a determination by any federal, state or local government agency,
any court or any other applicable entity that the Contractor(s)
provided by Company are employees of Intelligroup, except to the extent
that such claims arise solely from Intelligroup's intentional acts or
omissions not contemplated hereby or by the Separation Agreement dated
the date hereof between Intelligroup and Xxxxxxxxx Xxxxxxx. Company
acknowledges the following: (i) Company receives no direction or
supervision from Intelligroup in its performance under this Agreement;
and (ii) Company's performance under this Agreement shall not create
agency, employment, or partnership between Intelligroup and Company.
Intelligroup reserves the right to review annually Company's continued
compliance with this Section 3. Company shall cooperate fully with
Intelligroup in the conduct of this review, and shall provide
sufficient documentary proof of its status as an independent contractor
on receipt of Intelligroup's reasonable written request.
4. TERMINATION.
a. This Agreement shall remain in full force and effect until
terminated by either party pursuant to the terms specified in
this Section 4. Either party may terminate this Agreement or a
specific SOW if the other party materially breaches this
Agreement or a SOW and such breach is not cured within ten
(10) days after receipt of written notice of the same.
b. Either party may terminate this Agreement and any SOW at any
time upon thirty (30) days advance written notice.
c. Upon termination, Company shall assure that its Contractor(s)
return all Confidential Information (as defined below)
belonging to Intelligroup and provide Intelligroup with all
Work Product (as defined below), whether complete or not. Upon
termination, Intelligroup's shall pay any undisputed monies
owing to Company for services performed. All provisions of
this Agreement whose meaning requires them to survive shall
survive expiration or termination of this Agreement, including
but not limited to the limitation of liability and
confidentiality provisions.
5. WARRANTIES.
a. Company warrants its compliance with all pertinent laws,
statutory and regulatory requirements, and pays all applicable
taxes as required for its business.
b. Company warrants that it has obtained all insurance necessary,
required and customary for the operation of its business.
c. Company warrants that its Contractor(s) designated in the SOW
and assigned to performance under this Agreement are legally
authorized to work in the United States.
6. LIMITATION OF LIABILITY.
a. Other than for Company's violation of Sections 5 and/or 8,
neither Intelligroup nor Company shall be liable to the other
party for any indirect, incidental, special, or consequential
damages in connection with this Agreement, however caused,
whether based on contract, tort, warranty, or other legal
theory, and whether or not informed of the possibility of such
damages or if such damages were reasonably foreseeable.
Notwithstanding anything to the contrary in this Agreement,
Intelligroup's maximum aggregate liability to Company shall be
the amounts paid by Intelligroup to Company under the
particular SOW that gave rise to the liability.
2
7. OWNERSHIP OF WORK.
a. Company acknowledges that all materials, inventions,
discoveries, improvements, ideas and other innovations and
works of authorship of any kind, published and unpublished,
that Contractor(s) may make, conceive of, develop or reduce to
practice in connection with the performance of services under
this Agreement ("Work Product") shall be deemed works made for
hire under the applicable copyright laws, and it is intended
that all right, title and interest in the Work Product shall
vest in Intelligroup.
b. Company shall execute, and shall cause all Contractor(s)
engaged by Company to perform services hereunder to execute
any assignments or other documents requested by Intelligroup
as being reasonably necessary to vest the full and exclusive
right, title and ownership in the Work Product in
Intelligroup.
8. CONFIDENTIAL INFORMATION.
a. Company acknowledges that Company and/or Contractor(s) may
receive Confidential Information from Intelligroup during the
term of this Agreement, including without limitation,
information designated as confidential at the time of
disclosure, or summarized in writing as Confidential
Information within a reasonable time after disclosure. Company
shall only use the Confidential Information to perform its
obligations under this Agreement and disclose the Confidential
Information only to Contractor(s) having a need to know the
information for the purpose of this Agreement and who agree in
writing to be bound by confidentiality terms similar to the
terms of this Agreement. Company shall be liable for breach of
confidentiality by its Contractor(s). Company shall treat the
Confidential Information as it does its own valuable and
sensitive information of a similar nature, and, in any event,
with not less than a reasonable degree of care. Upon
Intelligroup's request, Company shall return or certify the
destruction of all Confidential Information.
b. The term "Confidential Information" shall mean any and all
information or proprietary materials (in every form and media)
not generally known in the relevant trade or industry and
which has been or is hereafter disclosed or made available by
Intelligroup or Client to Company in connection with the
efforts contemplated hereunder, including (i) all trade
secrets, (ii) existing or contemplated products, services,
designs, technology, processes, technical data, engineering,
techniques, methodologies and concepts and any information
related thereto, and (iii) information relating to business
plans, sales or marketing methods and customer lists or
requirements.
c. Company acknowledges that the breach or threatened breach of
this Section 8 will result in irreparable injury to
Intelligroup and that, in addition to its other remedies,
Intelligroup shall be entitled to injunctive relief to
restrain any threatened or continued breach of such sections
in any court of competent jurisdiction. Company hereby waives
any requirement for the posting of a bond or other security in
connection with the granting to Intelligroup of such
injunctive relief.
3
9. MALPRACTICE WAIVER. Company is not a law firm, is not in the business
of providing legal advice in any manner and does not hold itself out in
any related manner. Company is in the business of, among other things,
providing placement of Contractor(s) to corporations such as
Intelligroup. Once a Contractor(s) is placed, Intelligroup shall have
full control over such Contractor(s) projects and success. Accordingly,
Intelligroup acknowledges and agrees that it has had an opportunity to
review all candidate Contractor(s), is satisfied with their experience,
skills and abilities to complete the projects set forth in the
applicable SOW and waives any and all claims for malpractice, legal or
otherwise, which it may have against Company and the Contractor(s)
individually as a result of services provided by Contractor(s) under
this Agreement.
10. CONTRACTOR(S) INDEPENDENCE. Contractor(s) placed under this Agreement
work independently and are not subject to monitoring or oversight by
Company. Company shall not in any manner influence or otherwise be
involved in the project activities performed under the associated SOW.
In addition, advice given by Contractor(s) shall not be influenced by
or subject to any control by Company.
11. CONTRACTOR(S) OBLIGATIONS. In addition to the foregoing, Company shall
ensure that the Contractor(s) shall observe the working hours, working
rules and policies and holiday schedule of Intelligroup.
12. EXCLUSIVITY. Contractor(s) assigned to Intelligroup under any SOW shall
not be assigned to work as an attorney for any other customers of
Company during the duration of the applicable SOW. Contractor(s) may
perform other tasks relating to the management, projects or other
initiatives of Company during time not associated with an SOW.
13. ASSIGNMENT. Company may not assign this Agreement or any portion
thereof without the prior written consent of Intelligroup. Any such
assignment shall be null and void.
14. GOVERNING LAW AND JURISDICTION. This Agreement is governed by the laws
of the State of New Jersey without any regards to conflicts of law
provisions. Intelligroup and Company consent to the exclusive
jurisdiction of the state and federal courts of New Jersey to resolve
any dispute arising from this Agreement. The parties mutually
acknowledge and agree that this Agreement relates solely to the
performance of services (not the sale of goods) and, accordingly, shall
not be governed by the Uniform Commercial Code of any State having
jurisdiction.
15. INTERPRETATION. The headings and captions of the sections and
paragraphs of this Agreement are for convenience only.
16. NOTICES. All notices required by this Agreement will be given in
writing to the other party and delivered by registered mail,
international air courier, facsimile, or the equivalent. Notices will
be effective when received as indicated on the facsimile, registered
mail, or other delivery receipt. All mailed notices will be given by
one party to the other at its address stated on the first page of this
Agreement unless a change thereof previously has been given to the
party giving the notice.
4
17. SEVERABILITY. If any provision of this Agreement is interpreted to be
illegal or unenforceable, the remainder of this Agreement shall be
enforceable.
18. ENTIRE AGREEMENT AND AMENDMENTS. This is the entire agreement between
Intelligroup and Company concerning the subject matter hereof and
supersedes all prior agreement or arrangements between the parties,
whether written or oral. No purchase order shall add additional terms
to or vary the terms of this Agreement. Modifications to this Agreement
shall be in writing, expressly refer to this Agreement, and be signed
by authorized Contractor(s)s of Intelligroup and Company.
19. WAIVER. The waiver of any right in this Agreement shall be in writing
and signed by the party against whom enforcement is sought, and shall
not be a waiver of any other right in this Agreement.
20. AUTHORITY TO BIND. Neither party shall have authority to act for the
other in any manner to create obligations or debts that would be
binding upon the other. Neither party shall be responsible for any
obligations or expenses of the other except as expressly authorized to
be incurred in the performance of this Agreement.
21. NONSOLICITATION. During the term of the relevant SOW and for a period
of one (1) year following termination or expiration thereof, Company
shall not, directly or indirectly, solicit for hiring, as an employee
or subcontractor, any employee(s) of Intelligroup.
INTELLIGROUP, INC. PONTUS, INC.
By: /s/ Xxxxxx Xxxxxx By: /s/ Xxxxxxxxx Xxxxxxx
----------------------------- --------------------------------
Name: Xxxxxx Xxxxxx Name: Xxxxxxxxx Xxxxxxx
Title: CEO and President Title: Managing Director
Date: 6/29/2005 Date: 6/29/2005
5
SOW #1 TO
INDEPENDENT CONTRACTOR AGREEMENT ("AGREEMENT")
BETWEEN INTELLIGROUP, INC. ("INTELLIGROUP") AND PONTUS, INC. ("COMPANY")
DATED JULY 01, 2005
--------------------------------
COMPANY CONTRACTOR(S)S AND RATES:
Contractor supplied: Xxxxxxxxx Xxxxxxx
Fees: $7200 per month minimum ("Fees") which includes a minimum of 20
hours per week at $90 per hour relating to projects to be assigned and
agreed to between Contractor and Intelligroup. Any time above 20 hours
per week shall be invoiced at the rate of $90/hr.
Performance Bonus: Company shall be eligible for a $36,000 guaranteed
performance bonus. This bonus shall be paid as follows:
1) $10,000 shall be paid in advance ("Advance") which shall be
immediately due upon execution of this Agreement;
2) $26,000 shall be invoiced (and paid in accordance with the
terms of the Agreement) upon the earlier of: a) termination of
this SOW by Intelligroup; b) breach of this SOW by
Intelligroup; or c) December 1, 2005.
In the event that Company breaches the terms of this SOW, the
performance bonus shall not be due and the Advance shall be repaid by
Company.
CONTRACT TERM: July 1, 2005 - September 30, 2005. May be extended for another 3
months upon the reasonable request of Intelligroup by delivery of
written notice to the Company.
INVOICING:
Monthly Minimum: The Fees described above shall be invoiced in advance
each month on July 1, August 1 and September 1, 2005 (along with any
months associated with any extension).
Overtime and expenses: Provided the appropriate preapprovals are
obtained, overtime (hours in excess of the 20 hours per week) shall be
invoiced bi-weekly in the amount of $90/hr along with any and all
reasonable business expenses of Contractor(s) including, without
limitation, preapproved travel on Intelligroup business, train travel
to and from Intelligroup's offices in Edison New Jersey from New York
City and all other reasonable expenses associated with providing
services under this SOW. Such bi-weekly invoices shall include a
thorough time sheet for the Contractor.
SCOPE OF WORK:
In the discretion of Intelligroup, provided such scope is reasonably
acceptable to Contractor(s)
6
EXTENSION. If Intelligroup requests that services be performed after September
30, 2005 (the "Estimated End Date") but Intelligroup has not notified
the Company of a 3-month extension of the Contract Term, this SOW shall
be deemed to have been extended beyond the Estimated End Date on a
month to month basis on the same terms and conditions stated herein and
in the Agreement until such time as the following: (i) the services are
completed; or (ii) the Agreement or this SOW is terminated pursuant to
Section 4 of the Agreement.
INTELLIGROUP, INC. PONTUS, INC.
By: /s/ Xxxxxx Xxxxxx By: /s/ Xxxxxxxxx Xxxxxxx
------------------------------- --------------------------------
Name: Xxxxxx Xxxxxx Name: Xxxxxxxxx Xxxxxxx
Title: President and CEO Title: Managing Director
Date: 6/29/2005 Date: 6/29/2005
7
