EXHIBIT 10.25
[THE ACUMEN GROUP LOGO]
THE ACUMEN GROUP Competitive Advantage Through
Technology Innovation
SERVICE AGREEMENT
SERVICE AGREEMENT (this "Agreement") made as of December ll, 1995 by
and between CHEMICAL XXXXXX TANK LINES, INC., a corporation with mailing address
000 Xxxxxxxxx Xxx, Xxxxx, XX 00000 ("CLTL"), and ACUMEN CONSULTING GROUP, INC.,
a corporation with mailing address Summit Place, 000 Xxxxxxxx Xxxxxx, Xxxxxxxx,
XX 00000 ("Acumen").
Agreement
For good and valuable consideration and intending to be legally bound
hereby, the parties agree as follows:
1. Certain Definitions. For all purposes of this Agreement, the following
terms shall have the meanings assigned to them in this Section 1.
"Deliverables" shall have the meaning set forth in Section 3.
"Laws and Regulations" shall mean and refer to all present and future
laws, codes, ordinances, orders, judgments, decrees, injunctions, licenses,
rules, permits, approvals, agreements, regulations and requirements of any
government or governmental agency, whether federal, state or local.
"Parties" shall mean and refer to CLTL and Acumen.
"Person" shall mean and refer to any individual, corporation,
partnership, joint venture, trust, government or governmental agency, or any
other entity.
"Project" shall mean and refer to that project for the re-engineering
of the information and technology systems at CLTL described in the Project
Proposal and shall include all Work.
"Project Proposal" shall mean and refer to that proposal entitled
"Chemical Xxxxxx Information Systems Architecture (C.L.I.S.A.), Project
Proposal, Rev. 1.4," dated July 20, 1995, as amended by Addendum dated October
30, 1995 all in the form attached hereto, and as the same may be further amended
or supplemented with addenda from time to time by written agreement of Acumen
and CLTL.
"Section" shall mean and refer to a Section in this Agreement.
"Subcontractor" shall mean and refer to any Person who performs Work as
a subcontractor to Acumen pursuant to Section 9, provided that the term
"Subcontractor" shall not include vendors of hardware or commercially available
software.
"Work" shall mean and refer to all work and services performed or
required to be performed and all Deliverables, designs, plans, reports,
documents, files, software, codes (source and object), logarithms, hardware,
machinery, equipment and other intellectual property, goods and products
created, produced, modified or delivered or required to be created, produced,
modified or delivered by Acumen, directly or through Subcontractors, pursuant to
this Agreement.
Whenever the context may require, any noun, including any term defined in this
Agreement, shall include its plural or singular form, and any pronoun shall
include the corresponding masculine, feminine and neuter forms, both singular
and plural.
2. Co-ordination of this Agreement and Consulting Services Agreement;
Cross Default. CLTL has, by a separate Consulting Services Agreement with Acumen
and Xxxxxxxx Xxxxx Xxxxxx dated as of October , 1995 (the "Consulting Services
Agreement") engaged Acumen and/or Xxxxxx as an independent contractor to advise
and assist CLTL in certain investigations and projects intended generally to
enhance CLTL's data handling, management information, data communications and
related automated systems in order to secure to CLTL certain competitive
advantages. Xxxxxx, who is the President, controlling stockholder and a director
of Acumen, is widely experienced and expert in those fields of computerized
systems and information handling and communications and shall be Acumen's
principal representative dealing with CLTL. The Parties acknowledge that without
the commitment of Xxxxxx'x time and services as provided in the Consulting
Services Agreement, CLTL would not contract with Acumen and would not enter into
this Agreement. In addition, Acumen agrees that any default by Xxxxxx and/or
Acumen under the Consulting Services Agreement shall be and shall constitute a
default by Acumen under this Agreement.
The Parties acknowledge and agree that neither Acumen nor Xxxxxx shall
be entitled to receive any fees, compensation, profit, incentive payment or
other remuneration or consideration under this Agreement for or relating to Work
performed or to be performed by Xxxxxx (other than certain reimbursements of
expenses as provided for herein), but rather that all consideration for Xxxxxx'x
services and Work shall be provided for and paid under the Consulting Services
Agreement.
3. Development of the Project Proposal; Deliverables; Phase One. The
Parties acknowledge that the Work shall consist of a series of carefully defined
tasks and phases, each culminating in specified task products or systems which
are sometimes termed "Deliverables" or "Project Deliverables." Acumen agrees to
perform the Work specified in the Project Proposal in accordance with the
Project Proposal and this Agreement. As set forth in the Project Proposal, the
Work shall be broken into several Phases. As specified in Table 2, p. 10 of the
Project Proposal, a detailed list of Project Deliverables for all Phases of the
Project shall be jointly developed by Acumen and CLTL and reviewed and approved
by CLTL, as part of Phase
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One of the Project. The Project Deliverables shall take the form of formal
functional specifications ("Specifications"). The Specifications shall be
completed and approved by the end of the first three months of Phase One. If
approval of the Specifications is delayed by CLTL, the period for the
performance of Phase One shall be similarly delayed and extended. At the
completion of each Phase, the Parties shall refine the Project Deliverables and
the Specifications for the next Phase and Acumen shall commence Work on such
next Phase upon receipt of written notification to commence from CLTL. During
the course of the Work, Acumen and CLTL shall work together and cooperate to
develop the Project Deliverables and related Specifications for each Phase of
the Project. The Project Deliverables and related Specifications, when agreed to
by the Parties, shall be set forth in one or more amendments or addenda to the
Project Proposal or in CLTL issued change orders, each of which amendments,
addenda or change orders shall require the written approval of the Parties to be
effective.
The Parties have preliminarily defined and set forth in the Project
Proposal the tasks, task products, systems and Deliverables which shall
constitute Phase One of the Work, and their applicable components, time tables,
development, implementation, testing and acceptance criteria and procedures,
costs and payment schedules. Based on that definition and as the same may be
further developed in the course of the Work, subject to the terms and conditions
of this Agreement, and with the agreement that the final cost of Phase One shall
not, unless the final agreed Phase One Project Deliverables are more extensive
or require additional Work as compared to those in the Project Proposal as of
the date here, exceed an aggregate of $2,000,000 (exclusive of amounts payable
for Xxxxxx services under the Consulting Services Agreement) and the further
agreement that Acumen shall use its best efforts so that Phase One shall be
completed and accepted in full within nine months of the date of this Agreement
(subject, however, at all delays and extensions permitted or provided for in
this Agreement), CLTL hereby authorizes Acumen to proceed with Phase One as
promptly as possible, and Acumen agrees to do so.
4. The Project and the Work. In consideration of the fees paid from
time to time by CLTL to Acumen hereunder and for Xxxxxx'x services under the
Consulting Services Agreement, Acumen shall, commencing as soon as possible
after the date of this Agreement and continuing thereafter substantially without
interruption (except as otherwise provided herein) until completion, final
delivery, acceptance and error correction, perform the Work authorized by CLTL
hereunder in strict accordance with the Project Proposal and on the terms and
conditions set forth in this Agreement. Acumen shall not undertake any Work
until the same is authorized in writing by CLTL, and then only on the time
schedule, in the manner, for the prices and otherwise as contemplated by the
Project Proposal or as otherwise authorized or agreed by the Parties. If any
conflict exists between the terms of this Agreement and the terms of the Project
Proposal, the terms of this Agreement shall take precedence and control.
Acumen shall make every reasonable effort and shall cooperate with
CLTL, and CLTL shall cooperate with Acumen, to accomplish all aspects of the
Work (including Subcontracting and the acquisition of hardware, software,
equipment and all other vendor items) at the lowest reasonable net cost to CLTL
consistent with the terms of this Agreement and the goals of developing
first-class, efficient, effective and integrated systems which are durable,
reliable and
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economic to operate and maintain and which provide CLTL with competitive
advantages.
Acumen and each Subcontractor shall perform all Work in a first-class,
professional and orderly manner and enforce strict discipline and order among
its employees. All Persons employed by Acumen and all Subcontractors engaged by
Acumen to perform the Work shall be experienced and competent in the tasks
assigned to them. Acumen shall not appoint any Subcontractor to perform any
portion of the Work without the prior written consent of CLTL, provided that
this restriction shall not apply to any Person who is to be paid less than
$15,000 for Work performed under this Agreement during any three-month period.
In addition, Acumen shall promptly remove from involvement in the Project any
professional, technical or management Person, to whom CLTL reasonably objects in
writing.
In performing the Work, Acumen and each Subcontractor shall at all
times comply with all Laws and Regulations relating to the performance of the
Work, including those Laws and Regulations relating to labor, equal opportunity,
antidiscrimination, health, safety and O.S.H.A. In addition, Acumen shall
maintain all insurance required by applicable Laws and Regulations and all such
additional insurance as Acumen and CLTL may agree to be adequate consistent with
the obligations of Acumen related to this Agreement.
In performing the Work, Acumen and each Subcontractor shall take all
reasonable precautions and shall observe all rules and orders of CLTL designed
to protect CLTL's personnel, assets and property, including without limitation
its hardware, software, on-line information and documentation, and which rules
and orders are communicated to Acumen in writing.
Acumen shall, following the protocols and procedures set forth in the
Project Proposal, maintain appropriate professional documentation of its
performance of the Work and shall deliver the same to CLTL from time to time as
CLTL shall request. Except as provided in Section 12, all such documentation
shall be the sole property of CLTL, but Acumen shall have continuing access to
it for all proper purposes, including the further performance of the Work and
the correction of errors.
5. Completion and Delivery. Acumen shall complete and deliver the
Deliverables and all other systems and items of Work required to be completed
and delivered by it in strict compliance with the completion, delivery, testing
and acceptance schedules and procedures set forth in the Project Proposal or the
Work is otherwise defined or agree to, and subject to delays which are excused
or are due to CLTL or other vendors. As part of the definition of the Project
Deliverables for each Phase the Parties shall agree upon acceptance criteria for
the Deliverables and an efficient and expedient process for performance of the
agreed acceptance tests.
6. Acumen As Independent Contractors. Acumen shall at all times be and
act as an independent contractor to and not as an agent of CLTL and shall
maintain complete control over Acumen's employees, agents, representatives and
Subcontractors. All individuals, including Xxxxxx, employed by Acumen in
connection with the Project and the Work shall be
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Acumen's employees and not employees of CLTL. Subject to this Agreement, Acumen
shall have complete responsibility for the Work and for all means, methods,
techniques and sequencing, for coordinating all portions of the Work and for the
acts and omissions of all Subcontractors. As an independent contractor, Acumen
shall not be entitled to any of the benefits associated with employment by CLTL,
including insurance protection, tax withholding, social security and workmen's
compensation. CLTL agrees not to hire, nor attempt to hire, any employee of
Acumen or any employee of any Subcontractor during the course of the Work and
for a period of one year after completion of the Work, without the prior written
consent of Acumen. Acumen agrees not to hire, nor attempt to hire, any employee
of CLTL during the course of the Work and for a period of one year after
completion of the Work, without the prior written consent of CLTL.
7. Continuous Availability of Xxxxxx. Acumen shall make the services of
Xxxxxx continuously available to CLTL for the periods and during the time that
Xxxxxx is obligated to provide services to CLTL under the Consulting Services
Agreement.
8. Continuing Access. CLTL shall furnish Acumen and Acumen's authorized
employees (including Xxxxxx) and Subcontractors with open and continuing access
to such of CLTL's personnel (both face-to-face and by telephone), premises,
equipment, software, systems, and information as may be reasonably appropriate
for the effective performance of the Work, subject, however, to such security
and safety regulations and procedures as CLTL may from time to time prescribe
and communicate in writing to Acumen and to such interruptions as CLTL may deem
appropriate to enable CLTL to maintain its normal business operations and to
respond to unusual demands, emergencies and other special circumstances.
9. Subcontractors. The Parties acknowledge that Acumen intends to
subcontract specified portions of the Work to selected Subcontractors. Nothing
contained in this Agreement or in any subcontract awarded by Acumen shall create
any contractual relationship between CLTL and any Subcontractor, except to the
extent required by the third paragraph of this Section 9. No subcontract shall
relieve Acumen of its obligations to CLTL under this Agreement. So long as CLTL
pays Acumen all amounts due Acumen hereunder for work performed by Acumen (or by
Subcontractors or other Persons acting on behalf of Acumen hereunder), CLTL
shall have no obligation to pay, or to cause the payment of, any moneys to any
Subcontractor or other Person acting through, under or on behalf of Acumen or
Xxxxxx and Acumen shall indemnify and hold CLTL harmless from any and all such
claims.
Prior to engaging any Subcontractor, Acumen shall furnish CLTL, in
writing, the name, address and professional qualifications of each proposed
Subcontractor, a description of those tasks intended to be performed by such
Subcontractor and a copy of all agreements proposed to be entered into by Acumen
and such Subcontractor. Acumen shall not engage any Subcontractor to perform any
portion of the Work unless and until CLTL has approved in writing that
Subcontractor and the terms and conditions of its agreements with Acumen, which
approvals shall not be unreasonably withheld or delayed. The requirements of
this paragraph shall be subject to the proviso of the third sentence of the
third paragraph of Section 4. CLTL consents to the use by Acumen of Parallogic,
Inc., Marble Associates, Inc., Transport
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Dynamics, Inc., and NCS, Ltd as Subcontractors.
All Work performed for Acumen by a Subcontractor shall be pursuant to
an appropriate written agreement between Acumen and that Subcontractor which
shall, as applicable and, unless otherwise agreed by CLTL, contain provisions
that:
(i) reasonably preserve and protect all rights of CLTL under this
Agreement and to the Work to be performed under such subcontract;
(ii) require that the Work be performed in strict accordance with the
applicable requirements of this Agreement and the Project Proposal;
(iii) obligate each Subcontractor to look solely to Acumen, so long as
CLTL pays Acumen all amounts due Acumen hereunder for Work performed by
Subcontractors and accepted by CLTL, for payment of all amounts owing to it by
reason of the Work and provide that such Subcontractor shall have no claims and
waives all lien rights (including mechanics and suppliers liens) against CLTL
with respect thereto;
(iv) require each Subcontractor to provide and maintain adequate
insurance consistent with its obligations related to this Agreement; and
(v) obligate each Subcontractor specifically to consent to and be bound
by those obligations under this Agreement which by their terms are intended to
also bind Subcontractors, including the provisions of Section 4, The Project and
the Work; Section 12, Proprietary Property; Licenses; Section 13, Nondisclosure;
and Section 14, Warranties.
10. Fees and Costs. Acumen has provided CLTL with a "Minimum,"
"Maximum" and "Best Guess" cost scenario for the completion of the Project,
which is set forth in Table 5, p. 14, of the Project Proposal. Acumen shall, on
a best-efforts basis, attempt to complete the Project at a cost which is equal
to or less than the "Best Guess" scenario.
Fees payable by CLTL to Acumen, both for the professional services of
Acumen and for the professional services of Subcontractors to Acumen, shall be
determined as follows:
(i) for professional services by Acumen, at the respective rates set
forth on the attached Schedule of Professional Fees for the hours each employee
of Acumen is actually engaged in the work;
(ii) for professional services of Suncontractors, on a time and
materials basis at the amounts billed by each such Subcontractor to Acumen for
work actually performed pursuant to its approved subcontract, which amounts
shall represent Acumen actual cost without markup, override, commission or other
profit to Acumen; and
(iii) for materials, equipment, hardware, software, vendor items, and
reimbursable costs (delivery, telephone, computer time and so forth), at cost
without markup, override,
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commission or other profit to Acumen or the Subcontractor, as the case may be.
Acumen shall provide CLTL approximately on the 5th and 20th of each
month with an invoice setting forth amounts owed by CLTL under this Agreement
for Work actually performed or materials actually provided to the last day of
the previous month or the 15th day of the month, as the case may be. Immediately
upon CLTL's payment of each invoice, Acumen shall pay to its Subcontractors,
vendors and other suppliers all amounts then owed to them which were covered by
such invoices. To the extent Acumen fails to pay any such amount owed to
Acumen's Subcontractors, vendors or other suppliers, CLTL shall have the right,
but not the obligation, to pay those invoices directly to such Person to be
credited to Acumen's account.
Each of Acumen's invoices to CLTL shall detail all amounts then owed by
CLTL to Acumen by reason of Work actually performed by Acumen and by
Subcontractors or by reason of other expenses actually incurred by Acumen to the
effective date of that invoice which are payable or reimbursable by CLTL under
this Section 10. Such invoices shall be in such form and contain such detail as
CLTL may reasonably require, but in any case each such invoice shall detail with
specificity the Work performed and costs incurred, and (to the extent Acumen has
not already provided the same to CLTL) shall have attached evidence of payment
of all invoices, bills and statements from Subcontractors, vendors or others
which were to have been paid from funds previously provided by CLTL. Except in
those instances when the Parties have agreed that payments shall be made on a
scheduled basis or have made other payment arrangements (all of which shall be
set forth in the Project Proposal), CLTL shall pay such invoices in full in US
dollars within thirty (30) days after receipt or shall within that period advise
Acumen of any objection CLTL may have to that invoice, with justification for
its objection.
If CLTL pays the full amount due on a particular invoice within ten
(10) days after receipt, and if CLTL owes no outstanding balances on other
Acumen invoices (excepting those subject to a bona fide dispute), Acumen shall
credit CLTL with one percent (1%) of the total charge for services rendered on
that invoice. Such credit for early payment shall not be extended to CLTL
reimbursements for out-of-pocket expenses payable to Subcontractors, vendors and
other suppliers. All balances due on invoices shall, unless disputed, accrue
interest at the rate of one and one-half percent (1.5%) per month, compounded
monthly. All payments shall be credited against outstanding interest before
being credited against the principal amounts due.
Due to delays in the start of the Project, Acumen has experienced and
is experiencing significant out-of-pocket expenses and opportunity costs
associated with the Project. Additionally, CLTL has received Acumen's technical
and management assistance on numerous occasions since the time CLTL decided to
proceed with Acumen, but before the official start-up date when Acumen's time
would be billable. In light of the foregoing, CLTL shall pay Acumen upon the
signing of this Agreement an advance against professional fees in the fixed
amount of Two Hundred Eighty Four Thousand Dollars ($284,000). Such advance
shall be applied without interest as a credit against fees owed by CLTL to
Acumen upon delivery of the last
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Deliverables hereunder or upon termination, whichever first occurs. CLTL shall
have no other liability to Acumen for or with respect to any Work or services
performed or costs incurred, of whatever nature or description, before the date
of this Agreement.
11. Hardware, Software and Other Vendor Items. The Project Proposal
contemplates that CLTL shall, with Acumen's advice and upon Acumen's
recommendation, acquire during the course of the Work certain personal computer
and communications hardware devices and associated software. Except as CLTL may
otherwise agree in writing from time to time, Acumen shall have no authority to
order or otherwise commit for any such items for CLTL's account. Rather, all
such items shall be purchased directly by CLTL using CLTL's purchasing
department and CLTL's purchase order forms and procedures. Provided, however, in
those instances where because of preexisting business relations Acumen is able
to acquire any such items at prices or on terms more beneficial to CLTL than
CLTL can itself obtain, Acumen shall act on CLTL's behalf in acquiring such
items at such better prices or on such more beneficial terms. In no case shall
Acumen receive any commission, incentive or other payment or consideration from
the vendor or any other Person in connection with such transaction, and to the
extent Acumen receives any such consideration, it shall promptly account for and
pay the same to CLTL. In all instances, all warranties, customer support
obligations and other contractual benefits customarily extended to the original
purchaser shall run directly to CLTL, and Acumen shall use its best efforts to
secure such rights to CLTL. If in the performance of the Work Acumen reasonably
requires items other then personal computers or communications devices, which
items are to be included in the Project Deliverables, Acumen may, to the extent
set forth in the Project Proposal or as otherwise approved by CLTL, acquire such
items directly and include the actual costs thereof in its monthly invoices to
CLTL.
12. Proprietary Property; Licenses. All designs, ideas, inventions,
creations and other intellectual property, including without limitation all
software, programs, algorithms, codes (source and object), manuals and related
data, records and materials (collectively, "Proprietary Property"), first
developed, made or conceived by Acumen, Xxxxxx or any Subcontractor during the
course of the Work and which relate to the Work, shall be promptly disclosed to
CLTL and such Proprietary Property, and all patent, copyright, trademark and
other legal rights therein, shall be the sole and exclusive property of CLTL.
Acumen and each Subcontractor, as the case may be, shall cooperate with CLTL and
shall take all steps and execute and deliver all such documents as may be
appropriate to perfect and evidence such ownership and to obtain, defend and
enforce CLTL's rights therein. All copyrightable works first created by Acumen,
Xxxxxx or any Subcontractor and covered by this first paragraph of this Section
12 shall be deemed to be WORKS FOR HIRE.
Any Proprietary Property developed by Acumen or Xxxxxx prior to the
date of this Agreement or independent of and not for the purposes of the Work or
this Agreement, or by any Subcontractor prior to the date of its subcontract
relating to the Work or independent of and not for the purpose of the Work or
this Agreement ("Prior Property") and included in the Project Deliverables shall
remain the property of the developer. CLTL shall have no ownership rights in
Prior Property, but, unless otherwise agreed by CLTL, CLTL, Power Purchasing,
Inc. and QUALA Systems, Inc. are hereby granted non-exclusive, perpetual
licenses to use and to
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modify and adapt the Prior Property solely for their respective internal
purposes. The foregoing license shall be included in each subcontract relating
to the Work. CLTL shall not itself, and CLTL shall assure Acumen that Power
Purchasing, Inc. and QUALA Systems, Inc. shall not, sell, lease, sublicense,
distribute or otherwise transfer Prior Property to any Person without Acumen's
prior written approval.
Acumen shall furnish commercially available software to CLTL on the
condition that CLTL shall use such software solely in compliance with the
vendor's standard ("shrink-wrap") license or other license terms reasonably
acceptable to CLTL. If such vendor requires that a separate license be signed by
the end-user, CLTL shall execute such license so long as its form and substance
are reasonably acceptable to CLTL.
13. Nondisclosure. Acumen agrees, and each Subcontractor shall agree,
to receive and hold in strictest confidence and (unless otherwise agreed by CLTL
in writing) not to make any public disclosure of, any information imparted to it
by CLTL or learned or generated by it which pertains to CLTL's business and
which is not the subject of general public knowledge, whether or not the same
relates to the Work, including, without limitation, proprietary processes, trade
secrets, technical information and know-how, information concerning CLTL's other
projects, management policies, economic policies, financial and other data,
customer lists and information, and the like. The preceding nondisclosure
obligations shall not apply to:
(i) information in the possession of Acumen, Xxxxxx or the
Subcontractor, as the case may be, prior to the date it first rendered services
to CLTL (whether or not under this Agreement);
(ii) information in the public domain, except through violation of the
covenants set forth in this Section 13; and
(iii) information obtained from a third Person not under an obligation
of nondisclosure to CLTL.
14. Warranties. Acumen represents and warrants to CLTL, and each
Subcontractor shall represent and warrant to CLTL (but only as to that portion
of the Work for which such Subcontractor is responsible), that for a period of
90 days after final acceptance of the Work by CLTL (i) it understands the Work
and that it has the professional skill and knowledge to complete the Work; (ii)
the Work shall be performed on a "good-faith, reasonable efforts" basis,
efficiently and in accordance with high professional standards; (iii) all Work
and Deliverables and all software, program products and systems developed, made,
conceived or acquired as part of the Work shall, when completed, substantially
conform to the Specifications for the Project Deliverables and shall be adequate
and effective for their intended uses as set forth in the Project Proposal and
the Appendices (iv) no Work and no intellectual property developed, made,
conceived or used by Acumen, Xxxxxx or the Subcontractor, as the case may be, as
part of the Work shall be subject to any lien, claim or encumbrance (except as
caused by CLTL's failure to pay as required by this Agreement) or infringe any
patent, copyright, trademark, trade secret or other legal right of any other
Person. Acumen, Xxxxxx and the
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Subcontractors do not warrant that the operation of the Deliverables shall be
uninterrupted or error free.
In the event of a breach of the foregoing warranties, CLTL shall,
before pursuing any other legal remedies available to it, promptly inform Acumen
of the, breach, defect or failure (with pertinent details as reasonable under
the circumstances, including, if applicable, the operating conditions under
which the defect occurs, a description of what occurs versus what should occur,
and a representative sample of inputs for operating and analyzing the problem)
and shall provide Acumen with reasonable opportunity and access to CLTL's
systems and personnel to enable Acumen, at Acumen's own cost and expense, to
correct such breach, defect or error, to make the defective Project Deliverables
substantially conform to the applicable Specifications or this Agreement, or
otherwise to cure such breach of warranty.
The above warranties are contingent upon the proper installation and
use of the Project Deliverables (to the extent the same are not accomplished by
Acumen) and do not apply to supplies and consumables, or to defects or failures
due to (i) accident, neglect or misuse by any Person other than Acumen, its
employees, representatives or Subcontractors; (ii) failure or defect of
electrical power, external electrical circuitry, air conditioning or humidity
control; or (iii) any person other then Acumen, its employees, representatives
or Subcontractors modifying, adjusting, repairing or servicing any Project
Deliverables).
Notwithstanding anything else to the contrary herein, Acumen makes no
warranties as to any hardware items delivered by Acumen hereunder or as to any
third party commercial software purchased by Acumen hereunder and delivered to
CLTL, except for modifications made by Acumen to such hardware or third party
software as part of the Work.
THE ABOVE WARRANTIES ARE EXCLUSIVE AND IN LIEU OF ALL OTHER
WARRANTIES-WHETHER STATUTORY, EXPRESSED OR IMPLIED-INCLUDING BUT NOT LIMITED TO
ALL WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND ALL
WARRANTIES ARISING FROM COURSE OF DEALING OR USAGE OF TRADE.
15. Limitation of Liability. ACUMEN SHALL IN NO EVENT BE LIABLE FOR ANY
SPECIAL, INDIRECT, EXEMPLARY, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY KIND,
WHETHER ARISING IN CONTRACT, TORT OR OTHERWISE, ARISING OUT OF OR OTHERWISE
RELATING TO THE WORK, HOWEVER CAUSED, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH
DAMAGE.
The cumulative liability of Acumen with respect to or in any way
arising out of this Agreement, its performance or breach, whether in contract,
in tort, or otherwise shall in no event exceed the amount of CLTL's aggregate
payments to Acumen for professional services (both Acumen's own and its
Subcontractors) under this Agreement and to Xxxxxx under the Consulting Services
Agreement.
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16. Force Majeure. Acumen shall not be liable for any failure to
perform or for delay in performance due to fire, flood, strike or other labor
difficulty, act of God, government authority or act or omission of CLTL, riot,
embargo, energy shortage, wrecks or delay in transportation, inability to obtain
necessary labor, materials, or services from usual sources, or any cause beyond
its reasonable control. If there is a performance delay due to any such cause,
the date of delivery or time for completion shall be extended by a time period
reasonably necessary to overcome the delay's effect.
17. Suspension; Discretionary Termination. CLTL may, at any time in its
sole discretion, order an interruption or suspension in the Work if CLTL
believes that such delay is in the best interests of CLTL or of the Project.
Such interruption or suspension shall be effective immediately upon verbal
notice from CLTL to Acumen or at such later time as CLTL may prescribe. CLTL
shall reimburse Acumen or any Subcontractor, as the case may be, for any
incremental costs of such interruption or suspension. All schedules, delivery
and performance dates affected by such interruption or suspension shall be
extended as reasonably necessary to prevent any hardship to Acumen.
If CLTL interrupts or suspends performance of the Work, CLTL shall pay
Acumen for professional personnel assigned to the Work at the same rates
provided herein, unless Acumen is able to reassign those personnel to other
work, which Acumen shall use its best efforts to do. If CLTL interrupts or
suspends the Work for more than fifteen (15) business days, CLTL may inform
Acumen that it shall not pay Acumen for any Acumen or Subcontractor personnel
during such additional interrupted or suspended period and Acumen may terminate
such personnel or Subcontractors. In such case, upon resumption of the Work, the
schedule and estimated costs shall be adjusted to account for the effects of
such interruption or suspension, including termination of personnel or
Subcontractors. A period of interruption or suspension greater than thirty (30)
business days shall be considered a termination of this Agreement.
CLTL may, in its sole discretion, terminate the Work and the services
of Acumen under this Agreement at any time and for any reason (which reason need
not be communicated to Acumen), effective immediately upon written notice to
Acumen. Such termination shall not require CLTL to terminate or abandon the
Project. Acumen may, in its sole discretion, terminate the Work and the services
of Acumen under this Agreement at any time and for any reason (which reason need
not be communicated to CLTL), effective upon sixty (60) days prior written
notice to CLTL.
Following such discretionary termination, CLTL shall promptly reimburse
Acumen for or pay directly for Acumen's account, all fees owed and costs
incurred to the date of such termination for which CLTL is responsible under
this Agreement, and (if such termination is at CLTL's discretion) Acumen's
reasonable costs and expenses of termination, including, to the extent the same
are unavoidable, all charges and costs of and owed to Acumen's Subcontractors
and vendors. In such event, Acumen shall, with the cooperation of CLTL, use its
best efforts to settle and minimize all claims of Subcontractors and vendors
relating to such termination. Upon such discretionary termination, CLTL shall
have no other payment or
11
financial obligations to Acumen under this Agreement. Notwithstanding
discretionary termination, Acumen shall, at CLTL's request, provide such
services after termination as CLTL may reasonably request in connection with the
continuation or winding down of the Project and/or the transition of the Project
from Acumen to another independent contractor, consultant or supplier, for which
Acumen shall be paid at the rates set forth in this Agreement.
Notwithstanding anything to the contrary in this Agreement, if CLTL
terminates Phase One of the Project for any reason other then a default by
Acumen or breach of this Agreement by and/or Acumen, or breach of the Consulting
Services Agreement by Xxxxxx, CLTL shall pay Acumen the difference between Two
Million Dollars ($2,000,000) and (i) all amounts paid by CLTL to Acumen under
this Agreement (whether with respect to Acumen's services and costs, or the
services and costs of Subcontractors and other vendors and suppliers); (ii) all
amounts paid by CLTL directly to Subcontractors, vendors and suppliers
(including hardware and software vendors and suppliers) of Acumen under this
Agreement and which Acumen was obligated to pay under its arrangements with such
Subcontractors, vendors and suppliers.
18. Miscellaneous.
18.1. Assignment. Acumen shall not by contract, operation of law,
or otherwise, assign this Agreement (in whole or part), or delegate performance
of any of its obligations under this Agreement, without in each case obtaining
CLTL's prior written consent, which consent shall not be unreasonably withheld
or delayed. Any attempt by Acumen to assign or delegate rights or obligations
without CLTL's prior written consent shall be voidable at CLTL's option. CLTL
reserves the right to assign this Agreement to any successor to CLTL's business.
18.2. Governing Law. This Agreement shall be construed and governed
according to the laws of the Commonwealth of Massachusetts whose courts
(including Federal courts located therein) shall have exclusive jurisdiction to
resolve any dispute hereunder. CLTL hereby consents and submits itself to the
jurisdiction of such courts, and waives any claim that such jurisdiction or the
venue of any court in Massachusetts is improper.
18.3. Whole Agreement. This Agreement, including the Project
Proposal, constitutes the entire understanding of the Parties with respect to
its subject matter and completely supersedes any prior or contemporaneous
understandings, either oral or written. Any modification of this Agreement shall
be made only by a written amendment signed by the Parties.
18.4. Waiver. The failure of any Party to exercise any right under
this Agreement shall not constitute a waiver of any other term or condition of
this Agreement with respect to any other or subsequent breach, nor a waiver by
such Party of its right at any time thereafter to require exact and strict
compliance with the terms of this Agreement.
18.5. Notices. Any notice to be given under this Agreement shall be
sufficiently given if sent to a Party by U.S. certified mail, postage prepaid,
or by any
12
commercial delivery service which provides a record of delivery, addressed to
that Party at the address set forth in this Agreement, or to such other address
as that Party may designate by written notice to the other Parties. Any such
notice shall be effective on the earlier of the day of actual receipt or the
third business day after mailing or delivery to such commercial delivery
service.
18.6. Survival of Obligations. Except as otherwise provided herein,
any obligations under this Agreement which by their nature would continue beyond
the termination or completion of the Work shall survive such termination or
completion and shall continue thereafter for the full period of the applicable
statute of limitations.
18.7. Unenforceable Provisions. If any provision of this Agreement
is declared void, illegal or unenforceable by a court of competent jurisdiction,
such provision shall be deemed amended as necessary to conform to applicable
Laws and Regulations, or if it cannot be so amended without materially altering
the intention of the Parties, the remainder of the Agreement shall be amended in
a manner to result in comparable economic effects to the Parties. IN WITNESS
WHEREOF, the Parties have duly executed this Agreement as of the date first
written above.
ACUMEN: ACUMEN CONSULTING GROUP, INC.
By /s/ Xxxxxxxx X. Xxxxx Xxxxxx
----------------------------
Name: Xxxxxxxx X. Xxxxx Xxxxxx
Title: President
CLTL: CHEMICAL XXXXXX TANK LINES, INC.
By /s/ Xxxxxx X. Xxxxx
----------------------------
Name:
Title:
13
LIMITED GUARANTY AND SURETYSHIP RIDER
Xxxxxx, for good and valuable consideration and intending to be legally bound
hereby, and in order to induce CLTL to enter into the foregoing Agreement,
hereby guarantees to CLTL and hereby becomes surety to CLTL for the due and
punctual performance by Acumen of each and every covenant, obligation and
agreement, and for the truth and accuracy of each and every representation and
warranty, of Acumen to CLTL set forth in the foregoing Agreement; provided, that
Xxxxxx'x total, cumulative liability with respect to or in any way arising out
of this Limited Guaranty and Suretyship Rider, its performance or breach,
whether in contract, tort, or otherwise shall be absolutely limited to and shall
not exceed the amount of CLTL's aggregate payments to Xxxxxx and/or Acumen under
the Consulting Services Agreement. Xxxxxx further agrees that any default by
Acumen under the foregoing Agreement shall be and shall constitute a default by
Xxxxxx and/or Acumen under the Consulting Services Agreement. CLTL may set off
against any amount owed by CLTL to Xxxxxx under the Consulting Services
Agreement, any amount owed by Acumen to CLTL under the foregoing Agreement,
whether by reason of a failure to pay, a breach thereof, or otherwise.
Capitalized terms used in this Limited Guaranty and Suretyship Rider are used
herein with the definitions assigned to them in the foregoing Agreement.
IN WITNESS WHEREOF, Xxxxxx has duly executed this Agreement as of
December 11, 1995.
/s/ Xx. Xxxxxxxx X. Xxxxx Xxxxxx
----------------------------
Xx. Xxxxxxxx X. Xxxxx Xxxxxx
14
Schedule of Fees Between
the Acumen Consulting Group, Inc.
and
Chemical Xxxxxx Tank Lines, Inc.
for the completion of the
C.L.I.S.A. Project
Professional Professional Fee/Day
Classification
Senior Consultant $ 1,300.00
Associate Consultant $ 850.00
Appendix A
Intended Use
The C.L.I.S.A. project to be delivered by Acumen as part of this contract is
intended to provide Chemical Xxxxxx Tank Lines with a modern order entry,
dispatch, schedule and optimization system. In addition, a major goal of
C.L.I.S.A. is to provide CLTL's management with market analysis tools that can
help Chemical Xxxxxx Tank Lines' select the "right" customers. The "right
customer", in this context, refers to customers that help CLTL maximize its
asset utilization. Nevertheless, the full economic potential impact of
C.L.I.S.A. cannot be realized without deployment of significant business
re-engineering changes planned as a result of the D451 and S451 work at CLTL. In
this context, C.L.I.S.A. cannot and will not make any claims as to the potential
economic benefits associated with its deployment. Said economic benefits cannot
be obtained without the proper execution of the business re-engineering plan
discussed.
