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EXHIBIT 10.15
CONSULTING AGREEMENT
BETWEEN
UOP LLC
AND
ALTA SOFTWARE, INC.
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THIS AGREEMENT, effective as of April 21, 1999, by and between UOP LLC, a
limited liability company of Delaware ("UOP"), and ALTA SOFTWARE, INC., a
corporation of Virginia, ("CONSULTANT"),
WITNESSETH:
ARTICLE I
APPOINTMENT
Effective as of the date stated in Article II below, UOP retains CONSULTANT and
CONSULTANT agrees to provide UOP with the services stated in Schedule A attached
to this agreement. CONSULTANT represents and warrants that with respect to prior
consulting contracts to which it was a party there is no conflict of interest
which will prevent CONSULTANT or its employees from performing services for UOP
as described in Schedule A.
ARTICLE II
DURATION
CONSULTANT's services to UOP, within the above defined field, shall be available
to UOP for such number of days as may be agreed upon from time to time by UOP
and CONSULTANT, for the period of four (4) months beginning May 1, 1999 and
ending August 31, 1999.
ARTICLE III
FEES AND EXPENSES
As consideration for services rendered, UOP agrees to pay CONSULTANT a fee in
the amount of two hundred and fifty dollars ($250) per hour of actual service
rendered, plus such approved travel and related expenses or charges (such as
work related long distance telephone calls) as CONSULTANT may be reasonably
required to incur doing the work under this agreement. Payment by UOP for
services rendered and reimbursement for authorized expenditures shall be made
within thirty (30) days of presentation of an itemized invoice, including
receipts or other evidence of any such expenditures. Extension of trade credit
and any price discounts are conditioned upon timely payment. Late payments shall
bear costs of collection (including reasonable legal fees) and shall bear
interest at the rate of one (1) percent per month or fraction thereof until
paid. CONSULTANT may cease work without prejudice if amounts are not paid when
due. UOP shall pay all sales, use or other similar taxes (including interest and
penalties) hereunder other than taxes based on the net income or profits of
CONSULTANT.
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ARTICLE IV
FAILURE TO PERFORM
1. In the event CONSULTANT, during the contract period, is unwilling or unable
at any time for any reason, to perform services to UOP's satisfaction for a
period totaling fourteen (14) days (not necessarily consecutive days), UOP
shall have the option of terminating this agreement immediately upon giving
CONSULTANT written notice. In such event UOP shall pay CONSULTANT in
accordance with the conditions of Article III for the period up to and
including the termination date. Nothing contained in this Article IV shall
be construed as extending in any way the contract period defined in Article
II.
2. In the event CONSULTANT selects and/or changes personnel to perform the
work under this agreement, which personnel UOP in its sole discretion and
for whatever reason deems to be unsatisfactory, UOP shall have the option
of terminating this agreement at any time upon five (5) days' prior written
notice, the effective date of termination then being the last day of the
5-day notice period. In such event UOP shall only be responsible for
contractual fees due CONSULTANT in accordance with the conditions of
Article III as of the effective date of termination of this agreement.
ARTICLE V
REPORTING RESPONSIBILITY
UOP shall select, at the commencement date of this agreement, one or more of its
officers or employees to whom CONSULTANT shall be responsible. Such selected
officers or employees may be changed from time to time by UOP. The selected
officers or employees shall designate the services to be performed by
CONSULTANT, authorize travel or other expenditures by CONSULTANT, and arrange
any necessary conferences between CONSULTANT and other officers or employees of
UOP. Until otherwise changed by UOP the selected person to whom CONSULTANT shall
be responsible shall be Xxxxxxxx Xxxx.
ARTICLE VI
INDEPENDENT CONTRACTOR
It is understood that CONSULTANT shall perform its services for UOP pursuant to
this agreement as an independent contractor. Nothing in this agreement shall be
construed to create the relationship of employer and employee between the
parties. CONSULTANT further agrees that no statute, rule, or custom providing
for termination indemnities or like social benefits is applicable to the
relationship established by this agreement and CONSULTANT hereby waives any
right to demand any such indemnities or benefits under any statute, rule or
custom.
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ARTICLE VII
CONFIDENTIAL INFORMATION
1 CONSULTANT recognizes that by virtue of this agreement it may be exposed to
confidential or proprietary information belonging to UOP or relating to its
affairs. Accordingly, CONSULTANT agrees to receive and hold in confidence
and not to use or disclose any technical information and any other
information imparted to CONSULTANT by UOP which pertains to UOP business
activity in any manner except as is necessary to carry out the duties of
CONSULTANT under this agreement. (As used in this agreement, the term
"technical information and any other information" includes, for example the
management policies, economic policies, operating methods, technical
information, know-how and plans which enable UOP to maintain its goodwill
and competitive position in the business world.)
2. Additionally, CONSULTANT agrees that all data, papers, drawings, computer
software and other records supplied by UOP to CONSULTANT in connection with
this Agreement shall remain UOP property and all originals and copies shall
be returned to UOP at their request or at the end of the project whichever
is sooner. All data, papers, drawings, computer software and other records
developed by CONSULTANT after the effective date hereof and within the
scope of this Agreement shall, upon receipt of applicable payment
therefore, become the property of UOP and shall be delivered to UOP at upon
UOP's written request.
3. CONSULTANT will cause all of its employees who are involved in performing
services for UOP regardless of the location at which such services are to
be rendered to execute a UOP confidentiality agreement in the form
specified in Schedule B annexed to this agreement which agreement will
survive termination of said employee's employment with CONSULTANT and which
further will obligate these employees to keep such technical information
confidential and to restrict the use to the same extent as CONSULTANT is
obligated.
4. Still further, CONSULTANT agrees that there shall be no publication of any
work product developed under this Agreement and owned by UOP without the
prior written permission of UOP.
5. It is understood that the foregoing restrictions shall not apply with
respect to any portion of such information (i) which corresponds in
substance to that developed by CONSULTANT and in CONSULTANT's possession
prior to CONSULTANT's receipt of same from UOP, (ii) which at the time of
disclosure by UOP to CONSULTANT is or becomes through no act or failure to
act on CONSULTANT's part, part of the public domain by publication or
otherwise, or (iii) which corresponds in substance to that furnished to
CONSULTANT by others as a matter of right without restriction on
disclosure; and provided further that the occurrence of (i), (ii) or (iii)
above shall not be construed as granting any rights,
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either express or implied, under patents of UOP which relate to technical
information furnished to CONSULTANT. Technical information disclosed under
this agreement shall not be deemed to be within the foregoing exceptions
merely because such information is embraced by more general information in
the public domain or in CONSULTANT's possession. In addition, any
combination of features shall not be deemed to be within the foregoing
exceptions merely because individual features are in the public domain or
in CONSULTANT's possession, but only if the combination itself and its
principle of operation are in the public domain or in CONSULTANT's
possession.
6. CONSULTANT will receive confidential third party information from both UOP
and from the third party involved in this project. CONSULTANT will enter in
to an appropriate non-disclosure agreement with the third party prior to
commencement of services under this agreement.
7. Finally, CONSULTANT understands that it is the policy of UOP that
CONSULTANT not disclose or utilize in CONSULTANT's work, any confidential
information or trade secrets of others without proper authorization, except
where CONSULTANT is no longer subject to any obligations of confidentiality
with respect to such confidential information or trade secret, or except
where CONSULTANT identifies the source, but not the substance of any such
information that may be beneficial to UOP and gives UOP the opportunity to
negotiate with such source for permission to use such information.
ARTICLE VIII
PATENT RIGHTS AND COPYRIGHTS
1. in order that UOP may benefit fully from the services performed by
CONSULTANT all inventions, patent rights and copyrights (domestic and
foreign), developments or other rights of any nature, resulting from the
work undertaken by CONSULTANT after the effective date hereof and under
this agreement, shall upon payment of the amount due under this agreement
for the work at issue, be vested in UOP as UOP's exclusive property.
CONSULTANT further agrees to, and to cause its employees to, execute and
deliver all papers, documents, drawings and descriptions (including
executed patent applications, assignments, affidavits and the like) and
render such further assistance as may from time to time be deemed desirable
or necessary to vest and maintain in UOP the entire right, title and
availability in, to and of such inventions, patent rights and copyrights,
developments and other rights; provided, however, that UOP shall reimburse
CONSULTANT for proper and approved expenses incurred by CONSULTANT in
carrying out CONSULTANT's obligations under this Article VIII.
2. CONSULTANT warrants that it has no existing contract obligations to assign
inventions, patent rights, copyrights, developments and/or other rights
that it may invent or discover while doing work for UOP under this
agreement, and
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CONSULTANT shall enter into no other contract that would prevent CONSULTANT
from fulfilling its duties under this agreement or would cause a conflict
of interest with this agreement.
ARTICLE IX
INDEMNITY
1. Each party shall indemnify and save the other party harmless from and
against any and all claims for injury or death to third parties, its own
employees or agents and/or damage to tangible property of third parties,
its own employees or agents (including costs of litigation and attorneys'
fees) in any manner caused by, arising from, incident to, or growing out of
the activities performed under this agreement, except to the extent any
damage is caused in whole or in part by the willful misconduct or negligent
action of the party. Each party will notify the other party in writing of
any such claims setting forth all known details.
2. CONSULTANT shall maintain the following insurance.
(a) Workers' Compensation Insurance in compliance with the Workmen's
Compensation Act of the state wherein the work is to be performed.
(b) Employers' Liability Insurance on all employees not covered by a
Workers' Compensation Act, for occupational accidents or diseases,
with limits of liability of not less than $1,000,000 for any one
accident or disease.
(c) Comprehensive General Liability Insurance, including Contractual
Liability Insurance, with limits of liability of not less than
$1,000,000 each occurrence for bodily injury including death and for
tangible property damage.
(d) Automobile and Truck Liability Insurance (including hired car and
nonownership liability insurance if any automobiles or trucks will be
hired by CONSULTANT, or its employees will use their personally owned
vehicles in the business of CONSULTANT) with limits of liability of
not less than $1,000,000 each occurrence for bodily injury including
death and for property damage.
Certificates of Insurance showing compliance with these requirements and
naming UOP as an additional insured shall be furnished by CONSULTANT prior
to commencement of the work to UOP. The Certificates shall provide that the
policies will not be canceled or altered without at least ten (10) days'
prior written notice to UOP.
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ARTICLE X
WARRANTY & LIABILITY
CONSULTANT shall use its best reasonable efforts to perform its work
substantially according to the agreed-upon specifications contained in Schedule
A. CONSULTANT does not warrant that its work will be entirely free from error or
defect. Nothing herein shall preclude CONSULTANT from being paid its normal
rates for revising or debugging deliverables, which is a normal part of the
development process. EXCEPT AS STATED ABOVE, CONSULTANT DISCLAIMS ALL
WARRANTIES, INCLUDING MERCHANTABILITY, TITLE, ACCURACY, QUALITY, INTEGRATION OR
FITNESS FOR A PARTICULAR PURPOSE.
Except for certain injunctive relief authorized hereunder, UOP's sole and
exclusive remedy for CONSULTANT's default hereunder shall be to obtain the
repair, replacement or correction of work to the extent warranted, or to obtain
an equitable refund of amounts paid for defective work. CONSULTANT IS NOT LIABLE
FOR DIRECT DAMAGES EXCEEDING THE PRICE PAID FOR DEFECTIVE WORK, NOR FOR ANY
INDIRECT, INCIDENTAL, CONSEQUENTIAL OR OTHER DAMAGES (WHETHER IN CONTRACT, TORT
OR OTHERWISE) OR FOR ANY BUSINESS INTERRUPTION, LOST SALES, LOST PROFITS, LOST
SAVINGS OR ATTORNEY FEES, ARISING OUT OF OR RELATING TO THIS AGREEMENT.
ARTICLE XI
ASSIGNMENTS
This agreement is personal between the parties and shall not be assigned by
either party without the prior written consent of the other party, except that
it may be assigned without such consent to the successor of a party, to a
person, firm or consultant acquiring all, or substantially all, of the business
and assets of a party, or to a wholly or partially owned subsidiary of a party.
ARTICLE XII
MISCELLANEOUS
1. Each party hereby agrees that in the performance of its services or
activities hereunder, it will, to the best of its knowledge, comply with
all laws of the United States of America and of the various states of the
United States, and of any country in which the party performs services
hereunder, and of the rules and regulations issued by any governmental
entity of such other country, except to the extent that such compliance is
prohibited by or penalized under the laws of the United States of America,
including but not limited to the Internal Revenue Code of 1986, as amended,
and the Export Administration Act of 1969, as amended.
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2. Either party may disclose the content of this agreement as needed to comply
with governmental or court order, or to enforce its terms. Furthermore,
CONSULTANT agrees to abide by the policy of UOP as described in Schedule C
attached to this agreement in the performance of all services under this
agreement.
ARTICLE XIII
NONSOLICITATION
During the Term hereof and for two (2) years thereafter, neither party shall
hire, solicit or attempt to solicit the other party's employees or personnel
without the prior written consent of the other party. Violation of this
provision shall entitle the aggrieved party to obtain injunctive relief, without
necessity of posting bond, to prevent any actual or threatened violation of such
provision.
ARTICLE XIV
NOTICES
All notices provided for in this agreement shall be given in writing, either by
personal delivery of such notice or by the mailing thereof postpaid to the
parties respectively at the following addresses:
UOP: UOP LLC
00 Xxxx Xxxxxxxxx Xxxx
Xxx Xxxxxxx, Xxxxxxxx 00000-0000 U.S.A.
Attention: President
CONSULTANT: Alta Software, Inc.
00000 Xxxxxx Xxxxx Xxxx, Xxxxx 000X
Xxxxxx, XX 00000
ARTICLE XV
TERMINATION
Either party may terminate this Agreement upon thirty (30) days prior written
notice, or as otherwise set forth in this agreement. Termination of this
agreement shall not relieve CONSULTANT of its obligations under Articles VII,
VIII and IX.
ARTICLE XVI
GOVERNING LAW
This agreement shall be construed and the legal relations of the parties
determined in accordance with the laws of the State of Illinois, United States
of America.
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ARTICLE XVII
ENTIRE AGREEMENT
This agreement is executed and delivered with the understanding that it embodies
the entire agreement between the parties, and that there are no prior
representations, warranties or agreements relating to the subject matter of this
agreement.
ARTICLE XVIII
EFFECTIVE DATE
This agreement shall not become effective until executed by UOP at its principal
office designated for UOP in Article XIV and by Xxxxxx Xxxxxxxxx for CONSULTANT.
No change in, addition to, or waiver of the terms and provisions hereof shall be
binding upon either party unless approved in writing by its authorized
representative.
IN WITNESS WHEREOF, for adequate consideration and intending to be legally
bound, the parties hereto have caused this agreement to be executed in duplicate
and their signatures affixed thereto as of the date and year first above
written.
AGREED: AGREED:
ALTA SOFTWARE, INC. UOP LLC
By: /s/ XXXXXX XXXXXXXXX By /s/ XXXXXXX X. XXXXXXX
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Xxxxxx Xxxxxxxxx Xxxxxxx X. Xxxxxxx
Title: President Title:Vice President, Technology
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Federal Tax Identification No.
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SCHEDULE A
1. Technical services relating to the evaluation of possible change to CASA
involving the move to a three tier DNA based architecture using a
relational database. This rewriting of CASA involves partnering with an
outside company who would license it to others.
CONSULTANT will consider the question of performance relative to the
current version of CASA that could occur because of the change from the
current object oriented database to a relational database. CONSULTANT will
prepare a written report answering the following questions:
(a) Will the performance of the new application be acceptable for UOP's
Engineering department use? Will the business drivers be satisfied?
Aspects to consider are:
o Functionality
o Response time
(b) What are the pros and cons of adopting either relational or
object-oriented database technology for this type of application? Does
either approach entail any significant pitfalls? Can the application
be effectively maintained and enhanced with either technology?
(c) What are the business drivers for the party maintaining the new
application with respect to future enhancements? Are those drivers
sufficient to assure responsiveness to the software enhancement needs
presented by UOP Engineering?
To prepare the report CONSULTANT will:
(1) Review background material that we would provide that would describe
both the current and future versions of CASA.
(2) Visit UOP in Des Plaines for about a half day for discussions about
CASA and a demonstration of its current state.
(3) Visit our partner at his location on the east coast of the US for
about a half day for discussions during the week of May 17, 1999.
The written report is expected to be delivered to UOP on or before June 7, 1999.
2. Such additional services as may be mutually agreed upon by the
parties.
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SCHEDULE B
CONFIDENTIAL INFORMATION AGREEMENT
1,_____________________ , am an employee of _____________________
("CORPORATION"), and have been assigned to serve as consultant to UOP.
As part of the consideration for the employment of my services by CORPORATION
pursuant to the above stated assignment, I personally recognize and agree that
all information and records relating to inventions, patent rights, copyrights,
developments or other rights of any nature germane to the technical field of
such consultation and originating with UOP or developed under this assignment
shall belong exclusively to UOP. Accordingly, I agree to receive and hold in
confidence all technical information and any other information imparted to
CORPORATION and/or myself by UOP which pertains to UOP business activity in any
manner and which is not the subject of general public knowledge. (As used in
this agreement, the term "technical information and any other information"
includes, but is not necessarily limited to the management policies, economic
policies, operating methods, technical information, know-how and plans.)
Additionally, I agree that all papers, drawings, computer software and other
records in my possession created after the effective date of the agreement and
within the scope of projects undertaken by CORPORATION pursuant to this
agreement shall become the property of UOP and shall be delivered to UOP at any
time upon UOP's request.
I also understand that it is the policy of UOP that I am not to disclose or to
utilize in my work, any confidential information or trade secrets of others,
(including CONSULTANT and any other of my current or previous employers) without
proper authorization, except where I am no longer subject to any obligations of
confidentiality with respect to such confidential information or trade secret,
or except where I identify the source, but not the substance of any such
information that may be beneficial to UOP and give UOP the opportunity to
negotiate with such source for permission to use such information,
I further understand that my obligations hereunder will survive termination of
my employment with CORPORATION.
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(employee name)
Date:
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SCHEDULE C
UOP AND SUBSIDIARIES
POLICY STATEMENT FOR AVOIDANCE OF
QUESTIONABLE BUSINESS TRANSACTIONS
1. No employee, agent, sales representative or consultant shall have any
understanding, written or verbal, that any payments are to be made or
received:
(a) which involve any illegal purpose, or
(b) whether legal or illegal, which involve government officials or
employees, political candidates or parties, or kickbacks or bribes.
2. Documentation of all business transactions shall properly describe the
pertinent events and such records must not be false, distorted or
misleading. No undisclosed or unrecorded fund or asset shall be established
for any purpose.
3. Agreements with agents, sales representatives, or consultants should
clearly set forth the actual services to be performed, the basis for
earning the fee involved, and the applicable rate along with all other
terms and conditions. Payments under any such agreements must be reasonable
in amount and bear a reasonable relationship to the value of the services
rendered. Documentary support of all payments or other related business
transactions must be complete and conclusive, clearly defining the nature
and purpose of the transaction. The agent, sales representative, or
consultant must be informed that the agreement may be publicly disclosed
and must agree to such public disclosure.
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