Exhibit 10.4
MEMBER-LINK SYSTEMS, INC.
CONSULTING AGREEMENT
FOR
ENTERPRISE INTEGRATION CORPORATION
Consulting Agreement Number: MLS-EIC-CA01
THIS CONSULTING AGREEMENT (hereinafter "AGREEMENT") is made and entered into as
of the 27th day of August, 1998, by and between Member-Link Systems, Inc.
(hereinafter "MLS"); a New York corporation with business address of 0000 X
Xxxxxx, XX; Xxxxx 0000; Xxxxxxxxxx, XX 00000; and Enterprise Integration
Corporation and (hereinafter "CONSULTANT"), a Louisiana corporation with
business address of One Montrose Metro; 00000 Xxxxxxxxx Xxxx; Suite 503;
Xxxxxxxxx, Xxxxxxxx 00000.
WHEREAS, MLS proposes to perform work for itself and for various customers, and
such work may require that it obtain specialized consulting services and;
WHEREAS, CONSULTANT warrants and represents that it has the knowledge,
education, experience, qualifications, capabilities, and resources to render
computer/communications systems integration-related technical, management, and
business development services, and does desire to render such types of services;
NOW THEREFORE, in consideration of the premises and the promises stated herein,
MLS and CONSULTANT (hereinafter "BOTH PARTIES") hereto do mutually agree to the
following articles:
ARTICLE 1. TYPE OF AGREEMENT
This is an indefinite-delivery/indefinite-quantity (ID/IQ) AGREEMENT for
consulting services that will be obtained by individual purchase orders that may
be issued hereunder. Each purchase order will, at a minimum, set forth the
period of performance, invoice and payment terms, contract type and price, scope
of work, milestones and deliverables, and any amendments to the terms and
conditions of this general AGREEMENT. CONSULTANT may not incur costs until a
purchase order has been issued and signed by authorized MLS personnel. Each
specific purchase order executed under this AGREEMENT, together with this
general executed AGREEMENT, constitutes a binding contract between BOTH PARTIES.
The following MLS representatives are authorized to issue purchase orders to
CONSULTANT: Xx. Xxxx Xxxxxxxxxxx (Chief Executive Officer), who may be reached
at DIRECT TEL: (000) 000-0000; MAIN TEL: (000) 000-0000, and MAIN FAX: (202)
000-0000.
ARTICLE 2. TERM
The term of this AGREEMENT is from August 27, 1998 to August 26, 1999, and will
automatically renew on a yearly basis, unless modified in writing and signed by
BOTH PARTIES or sooner terminated in accordance with Article 8 (TERMINATION)
hereof; provided, however, that Article 7
(PROPRIETARY AND CONFIDENTIAL INFORMATION) shall survive the termination of this
AGREEMENT.
ARTICLE 3. NATURE OF RELATIONSHIP
CONSULTANT shall at times be, and shall act as, an independent contractor and
shall not have any right, power, or authority to create an obligation, expressed
or implied, on behalf of MLS, except to the extent provided herein. Nothing in
this AGREEMENT shall be deemed, held, or construed as creating a partnership,
pooling arrangement, or joint enterprise for any purpose.
CONSULTANT is not an employee of MLS, and thus shall not be subject to the
provisions of MLS's employee relations policies or entitled to benefits
thereunder. This AGREEMENT and all purchase orders issued under this AGREEMENT,
unless mutually-agreed upon in a signed amendment by BOTH PARTIES, shall be
independent of any or all other MLS contracts and the terms and conditions of
those contracts. CONSULTANT shall be solely liable for filing all applicable
returns and paying all applicable taxes and insurance. MLS will not take
deductions from fees for this purpose.
CONSULTANT is not required to perform exclusively for MLS. This AGREEMENT shall
in no way limit or restrict CONSULTANT from entering into similar or different
agreements with other parties, so long as the PROPRIETARY AND CONFIDENTIAL
INFORMATION clauses are maintained with MLS. CONSULTANT hereby agrees that it
will not, during the term of this AGREEMENT, knowingly participate in any effort
that is competitive with the work set forth in any issued purchase order.
CONSULTANT may perform the work specified in a purchase order issued under this
AGREEMENT at its own facilities and on its own time schedule, unless specified
otherwise in an issued purchase order and contingent upon meeting the milestone
and deliverable requirements specified in the purchase order. No classified work
is expected to be performed under this AGREEMENT. If, however, such work is
required, the security requirements will be expressed in an issued purchase
order.
CONSULTANT warrants that no person or selling agency has been employed or
retained to solicit or secure this AGREEMENT upon any understanding for a
commission, percentage, contingency, or brokerage fee. No member or delegate to
Congress, nor public official, shall be admitted to any share or part of this
AGREEMENT or to any benefit that may arise therefrom. CONSULTANT agrees to
comply with all applicable laws and regulations in performing under this
AGREEMENT.
ARTICLE 4. TYPES OF SERVICES
CONSULTANT shall render to MLS professional computer/communications systems
integration-related consulting services and advice of such nature for such
purposes and at such times as are mutually agreed upon by BOTH PARTIES hereto.
The types of services that shall be made available to MLS by CONSULTANT may
include, but are not limited to, technical services, management services, and
business development services, as follows:
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Technical Services
o Analysis Technical Services (e.g., As-Is & To-Be Business Modeling,
Functional & Technical Requirements Analysis)
o Engineering Technical Services (e.g., Architecture & Product Evaluation,
Network & System Design)
o Implementation Technical Services (e.g., Acquisition &
Installation/Configuration, Application Customization & Testing)
o Support Technical Services (e.g., Operations & Maintenance, Training & Help
Desk)
Management Services
o Work Management Services (e.g., Work Breakdown, Milestone/Deliverable
Definition)
o Schedule Management Services (e.g., Project Scheduling, Schedule Viewing)
o Resource Management Services (e.g., Team Staffing, Staff Augmentation)
o Cost Management Services (e.g., Budgeting, Tracking)
Business Development Services
o Proposal Assistance
o Presentation Assistance
o Marketing Materials Assistance
Documentation (e.g., plans, reports) corresponding to the above services will be
provided to MLS by CONSULTANT in both draft and final format. All draft and
final documentation will be submitted to MLS in both hard copy and in a
mutually-agreeable, on-line computer file format.
Subject to the terms and conditions of this AGREEMENT, MLS agrees to purchase
exclusively from EIC, from time to time, as required, integration services, or
any component thereof, as described above. In accordance with this right of
first refusal, EIC agrees to respond promptly within seven (7) working days to
any written request for proposal by MLS to purchase services from EIC. In the
event EIC chooses not to respond, nothing will prohibit MLS from selecting
services similar to services defined from other vendors.
ARTICLE 5. STANDARD RATES
For time & material (T&M) purchase order contracts, the standard CONSULTANT
rates are as follows:
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Consultant Commercial Government
Labor Category Hourly Rate Hourly Rate
-------------- ----------- -----------
Principal Operations Staff II $145 $125
Principal Operations Staff I $135 $115
Senior Operations Staff II $125 $105
Senior Operations Staff I $115 $95
Operations Staff II $105 $85
Operations Staff I $95 $75
Associate Operations Staff II $85 $65
Associate Operations Staff I $75 $55
Junior Operations Staff II $65 $45
Junior Operations Staff I $55 $35
Discounted hourly rates may be negotiated under special conditions, such as for
a monthly retainer agreement. Each cost-plus-fixed-fee (CPFF) and
firm-fixed-price (FFP) contract must be negotiated on a case-by-case basis. No
other direct costs (ODCs) may be incurred or will be paid without expressed
written permission granted by MLS on a case-by-case basis.
ARTICLE 6. STANDARD INVOICE/PAYMENT TERMS
CONSULTANT will prepare and submit invoices to MLS a maximum of twice a month.
Payment from MLS to CONSULTANT for each invoice is due a maximum of 10 calendar
days from the date MLS receives payment from its paying direct
customers/contractors, and no later than 90 days after submission of the
invoice. All MLS checks to the CONSULTANT will be made to Enterprise Integration
Corporation (EIC) at One Montrose Metro; 00000 Xxxxxxxxx Xxxx; Suite 503;
Xxxxxxxxx, Xxxxxxxx 00000. If there are any questions, Xx. Xxxx Xxxxxxxxx will
be the CONSULTANT point-of-contact and may be reached at (000) 000-0000.
Each CONSULTANT invoice to MLS must reference the MLS purchase order number, MLS
CONSULTING AGREEMENT number, CONSULTANT'S name, mailing address, type of
contract, amount currently invoiced, total contract value, amount invoiced to
date, and amount outstanding.
Each invoice must be accompanied by a Status Update that will include the work
accomplished during the current period, the work planned for the next period,
and any alerts encountered with responsive actions.
ARTICLE 7. PROPRIETARY AND CONFIDENTIAL INFORMATION
CONSULTANT shall not use, duplicate, or divulge, in any way, any proprietary or
confidential information belonging to or supplied by or otherwise made available
by MLS, with the exception of such disclosure needed for the performance of work
specified in a purchase order issued hereunder or at the direction of MLS. All
customer-specific information prepared or originated by CONSULTANT in the
performance of work specified under a purchase order issued hereunder shall
become and remain the property of MLS.
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CONSULTANT, however, maintains all rights to the ideas, concepts, contents, and
enhancements of the "Services and Products for Enterprise-Wide Customer
Solutions (SPECS)" methodology and other information previously conceived by
CONSULTANT before entering into this AGREEMENT. MLS may only use such
proprietary and confidential information of CONSULTANT with expressed written
permission granted by CONSULTANT on a case-by-case basis.
ARTICLE 8. TERMINATION
Except as otherwise provided under Article 7 (PROPRIETARY AND CONFIDENTIAL
INFORMATION), MLS or CONSULTANT may terminate this AGREEMENT, in whole or In
part, for convenience or any other reason with 30 calendar days written notice.
Termination of this AGREEMENT shall not affect those obligations already
initiated by either party; thus, if a purchase order has already been signed,
the AGREEMENT, as well as the terms and conditions of the purchase order, will
remain active and in effect through completion of the work specified within the
purchase order and for all due payments to CONSULTANT.
ARTICLE 9. MODIFICATIONS
This AGREEMENT (with each related purchase order) constitutes the entire
AGREEMENT of BOTH PARTIES hereto, and all previous interactions between the
parties, whether written or oral, with reference to the subject matter of this
AGREEMENT are hereby canceled and superseded. This AGREEMENT may not be
modified, except in writing and signed by authorized representatives of BOTH
PARTIES.
ARTICLE 10. HEADINGS
The article headings included herein are inserted only for convenience and
reference, and in no way define, limit, or describe the scope of the AGREEMENT
or the intent of any provisions hereof.
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ARTICLE 11. AUTHORIZED SIGNATURES
IN WITNESS WHEREOF, MLS has caused this AGREEMENT to be signed in its name and
on its behalf by its representative thereunto duly authorized, and CONSULTANT
has caused this AGREEMENT to be signed in its name and on its behalf by its
representatives thereunto duly authorized as of the day and year.
AUTHORIZED MLS EXECUTIVE
NAME: Xxxxx Xxxxxx
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SIGNATURE: /s/ Xxxxx Xxxxxx
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TITLE: General Counsel
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DATE: 10/19/98
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AUTHORIZED CONSULTANT REPRESENTATIVE
NAME: Xxxx X. Xxxxxxxxx
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SIGNATURE: /s/ Xxxx X. Xxxxxxxxx
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TITLE: Executive Vice President, Operations
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DATE: 10/2/98
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