8/31/99
CONSULTING & PROFESSIONAL SERVICES AGREEMENT
THIS CONSULTING & PROFESSIONAL SERVICES AGREEMENT ("Agreement"), dated
as of __________ between Astratek a Delaware corporation, (ASTRA) and 4th
Peripheral Technologies, Inc, a Delaware corporation (the "Company").
Background
The Company is engaged in the creation, development and implementation
of certain Internet-Telephony related projects and concepts, and desires to
obtain certain services from ASTRA in connection therewith. The Company
anticipates that "end-users" will wish to create applications which utilize CTI
systems, IVR systems, Auralized WEB content, and Voice-over IP technology and
that ASTRA is willing to provide such services to the Company, all on the terms
and conditions hereinafter set forth. The parties hereto agree as follows:
1. Consulting Services.
1.1 Services Provided by ASTRA. ASTRA shall provide to the Company, on
an independent contractor basis, executive advisory consulting services, as
requested, in an effort to increase the value and strategic position of the
Company (the "Professional Services"). Examples of the Professional Services
relate but are not limited to: telephony switching, legacy to emerging platform
integration, middleware, database connectivity, real-time database
administration, and include:
- Providing software (source code) development talent -
Delivering and implementing the code at the end users site -
Assist the company in the overall planning and design flow
per project
- E-Commerce Systems and Fulfillment Strategy and Operations
- Deliver data content (financial quotes, stock quotes etc.)
- Provide technical support for the products used by the
end-user
1.2 Fees for Professional Services. Based on each individual project,
it's duration, size, scope, and complexity, the Company and ASTRA will create a
"project team". Based on the skills, and talent, of the individual team members,
ASTRA and the Company will price each team member's value in terms of an hourly
wage, i.e. a time and materials model. Depending on the size of the project
ASTRA and the Company may decide to accept a "fixed price" model. Authorization
for any project, including the specific terms and conditions for that project,
will be evidenced by a project proposal that includes a signature of
authorization from the Company and from ASTRA. Each project proposal will be
attached as an exhibit to this Agreement and will contain a schedule of
milestones and deliverables. All amounts to be paid by the Company to ASTRA
pursuant to this paragraph shall be paid in the form of cash, after
predetermined and pre-agreed to milestones, as detailed in the accompanying
project proposal, are achieved by ASTRA.
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1.2 Expenses. The Company shall within 30 days of receipt of an
itemized invoice reimburse ASTRA for those reasonable expenses incurred by ASTRA
as a result of or in connection with ASTRA's provision of services under this
Agreement (including, but not limited to, airfare, lodging, meals, and
transportation). Such expenses shall be approved by the Company in advance. The
Company, at it's own discretion, shall decide to pay for unauthorized expenses.
2. Finder's Fees for Products & Services. In consideration of ASTRA's provision
of potential clients for the Company's products, the Company shall pay to ASTRA
a fee (the "Finder's Fee") equal to but not exceed five percent (5%) of revenue
generated through introductions by ASTRA or its affiliates. The Finder's Fee
shall be payable upon the Company's receipt of the funds.
3. Service Guarantees. While ASTRA will use its commercially reasonable efforts
in the provision of the Professional Services described in this Agreement, ASTRA
can make no guarantee as to performance, outcome or success, of the products
developed by the Company. ASTRA will have liability to the Company for any
willful or negligent acts or omissions of ASTRA's employees or agents in any way
related to the performance of ASTRA's obligations under this Agreement.
4. Information Flow. Both parties agree to remain in close and constant
communication i.e. weekly status meetings etc., with respect to each project.
The intent is to provide the highest level of service to the end-user.
5. Non Exclusive Relationship. The Company acknowledges and agrees that the
arrangement created by this Agreement is non-exclusive and ASTRA and its
affiliates retain the right to provide similar services to other persons and
entities.
6. Source Code Ownership Upon the completion of each project ASTRA will deliver
the Sourcecode developed during the process of the implementation, to the
end-user in the form of magnetic media, hardcopy listing, and shall be complete
and fully documented, so that the Company's staff may support and maintain the
product. The source code shall become the property of the Company, unless it is
a pre-existing piece of code, which may be licensed to the Company and whose
ownership rights may reside with ASTRA. The terms and conditions for licensing
pre-existing source code will be negotiated separately, and are not within the
scope of this Agreement.
7. Maintenance. Depending upon the conditions set forth by the end-user, ASTRA
and the Company shall negotiate, on a case, by case basis the sharing of
maintenance revenue. In order to satisfactorily maintain and support the client,
ASTRA and/or the Company may request the source code, and utilize it upon the
expressed permission of the end-user.
8. Co-marketing, Joint Application Development of Products. Where opportunities
may arise during the course of the relationship between the parties, both
entities may co-develop, co-license, or cross-license on a retail, or OEM basis,
existing products, and market these products to their respective sales channels.
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9. Term.
(a) The term of this Agreement shall begin on the date hereof
(the "Effective Date") and shall continue for a period of 12 months thereafter
(the "Period") in full force and effect until it is terminated in accordance
with this Section 9.
(b) The Company or ASTRA, if such party is not in default of
the terms of this Agreement, may extend the term of this Agreement for an
additional one year ("Additional Period"); provided, the extending party gives
the other party at least sixty (60) days advance written notice before the end
of the Period. If either party elects to extend the Agreement for the Additional
Period, all other terms and conditions of this Agreement shall continue during
the Additional Period; and provided further, that any Finder's Fee granted to
ASTRA as part of this Agreement shall continue in full force and effect in
accordance with its terms notwithstanding any termination of this Agreement by
any party hereto pursuant to the terms of this Section 9 or otherwise.
(c) ASTRA shall have the right (but not the obligation) to
terminate this Agreement and the rights granted to the Company hereunder if:
(i) The Company is in material breach of any of
its obligations hereunder, which breach is not cured within ten days of receipt
of written notice from ASTRA of such breach;
(ii) The Company is the subject of a voluntary
petition in bankruptcy or any voluntary proceeding relating to insolvency,
receivership, liquidation or composition for the benefit of creditors, if such
petition or proceeding is not dismissed within 60 days of filing, or becomes the
subject of any involuntary petition in bankruptcy or any involuntary proceeding
relating to insolvency, receivership, liquidation or composition for the benefit
of creditors, if such petition or proceeding is not dismissed within 60 days of
filing;
(iii) The Company involuntarily dissolves or is
dissolved;
(iv) The Company is judicially adjudicated
insolvent or generally is unable to pay its debts as they mature or makes an
assignment for the benefit of its creditors; or
(v) Upon ASTRA giving the Company at least sixty (60)
days advance written notice of termination of this Agreement.
(d) The Company shall have the right (but not the obligation)
to terminate this Agreement and the rights granted to ASTRA hereunder if:
(i) ASTRA is in material breach of any of its
obligations hereunder, which breach is not cured within ten days of receipt of
written notice from the Company of such breach;
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(ii) ASTRA is the subject of a voluntary petition
in bankruptcy or any voluntary proceeding relating to insolvency, receivership,
liquidation or composition for the benefit of creditors, if such petition or
proceeding is not dismissed within 60 days of filing, or becomes the subject of
any involuntary proceeding relating to insolvency, receivership, liquidation or
composition for the benefit of creditors, if such petition or proceeding is not
dismissed within 60 days of filing.
(iii) ASTRA involuntarily dissolves or is
dissolved;
(iv) ASTRA is judicially adjudicated insolvent or
generally is unable to pay its debts as they mature or makes an assignment for
the benefit of its creditors; or
(v) Upon the Company giving ASTRA at least sixty
(60) days advance written notice of termination of this Agreement.
(e) ASTRA will have the right (but not the obligation) to
terminate this Agreement and the rights granted to the Company hereunder, upon
60 days written notice to the Company, following the acquisition of all or
substantially all of the assets of the Company by any third party, or the
acquisition of the beneficial ownership of at least 20% (the "Threshold") of the
voting power represented by the voting securities of the Company, any successor
thereto or any person or "group" within the meaning of Sections 13(d)(3) and
14(d)(2) of the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), or any successor provision to either of the foregoing, including any
group acting for the purpose of acquiring, holding or disposing of securities
within the meaning of Rule 13d-5(b)(1) under the Exchange Act or any successor
provision thereof (a "group"). For purposes of this Agreement, (i) the term
"beneficial ownership" shall have the meaning set forth in Rule 13d-3 of the
Exchange Act or any successor provisions thereof, (ii) the term "voting
securities' means the common Stock, par value $.001 per share, of the Company
and any other securities issued by the Company having the power to vote
generally in the election of directors of the Company and (iii) the term
"affiliate" means a person or entity directly or indirectly controlled by,
controlling or under common control with another person. For purposes of this
Section 3, an acquisition shall not include (A) the acquisition by a person of
voting securities of the Company pursuant to an involuntary disposition through
foreclosure or similar event, or (B) the acquisition by a person of voting
securities of the Company pursuant to a dividend intended to be on a tax-free
basis (a "Tax-Free Spin-Off") under the Internal Revenue Code of 1986, as
amended from time to time, but shall include a subsequent acquisition of voting
securities pursuant to a disposition by the person that acquired the voting
securities in such involuntary disposition or such Tax-Free Spin-Off. In the
event any person acquires beneficial ownership of voting power in excess of the
Threshold as a result of a transaction described in the immediately preceding
sentence, the Threshold with respect to such person shall be adjusted to an
amount equal to the percentage of beneficial ownership held by such person
immediately following such transaction.
(f) A party may exercise its right to terminate pursuant to
this Section 9 by sending appropriate written notice to the other party. No
exercise by a party of its rights under
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this Section will limit its remedies by reason of the other party's default, the
party's rights to exercise any other rights under this Section 9, or any of that
party's other rights.
10. Records and Accounts.
The Company will maintain accurate books, records and accounts of all
transactions relating to the Finder's Fee owed by it to ASTRA pursuant to this
Agreement. ASTRA may, at its own expense, examine and copy those books and
records as provided in this Section 10. Such books, records and accounts will be
maintained in a manner that allows ASTRA to separate these matters from those
relating to the Company's other operations. Such books, records and accounts
will reflect such information as would normally be examined by an independent
accountant in performing an audit pursuant to United States generally accepted
auditing standards for the purpose of certifying financial statements, and to
permit verification thereof by governmental agencies. ASTRA may make
examinations pursuant hereto during the Company's usual business hours, and at
the place in the continental United States where the Company regularly keeps
these books and records.
11. Independent Contractors.
The Company and ASTRA are independent contractors. There is no
relationship of partnership, joint venture, employment, franchise or agency
between the Company and ASTRA. Neither the Company nor ASTRA shall have the
power to bind the other or incur obligations on the other's behalf without the
other's prior written consent. When ASTRA's employees act under the terms of
this Agreement, they shall be deemed at all times to be under the supervision
and responsibility of ASTRA and no person employed by ASTRA and acting under the
terms of this Agreement shall be deemed to be acting as agent or employee of the
Company or any customer of the Company for any purpose whatsoever.
12. Confidentiality.
ASTRA and the Company each agree to hold in strict confidence, and to
use reasonable efforts to cause each of their employees and representatives to
hold in strict confidence, all confidential information concerning ASTRA or the
Company, as the case may be, furnished to or obtained by the other party, in the
course of performing the obligations provided for under this Agreement except to
the extent that (a) such information has been in the public domain or was held
by such other party prior to the date of this Agreement, in either case with
such result occurring through no fault of ASTRA or the Company, as the case may
be, (b) disclosure or release is compelled by judicial or administrative
process, or (c) in the opinion of counsel to ASTRA or the Company, as the as may
be, disclosure or release is necessary pursuant to requirements of law or the
requirements of any governmental entity including, without limitation,
disclosure requirements under the securities laws of the United States or
similar laws of other jurisdictions applicable to ASTRA or the Company, as the
case may be.
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13. Company Content.
(a) The Company assumes sole responsibility for (i) acquiring
any authorization(s) necessary for the use of proprietary information to be
supplied by the Company to ASTRA (not including ASTRA's own proprietary
information) for use in connection with ASTRA's performance of the Professional
Services (the "Company Material"), and (iii) ensuring that the Company Material
does not infringe or violate any right of any third party.
14. Warranties.
(a) ASTRA represents and warrants that ASTRA has the power and
authority to enter into and perform its obligations under this Agreement.
(b) The Company represents and warrants that: (i) the Company
has the power and authority to enter into and perform its obligations under this
Agreement; and (ii) the Company Material does not and shall not contain any
materials that infringe on or violate any applicable law, regulation or right of
a third party, including, without limitation, export laws, or any proprietary,
contract, moral, or privacy right or any other third party right, and that the
Company owns the Company Material or otherwise has the right to use and provide
the Company Material to ASTRA for use in connection with its provision of the
Professional Services.
(c) EXCEPT FOR THE LIMITED WARRANTY SET FORTH IN SECTION 6(a)
ABOVE AND IN THE SECTION OF THIS AGREEMENT ENTITLED "SERVICES GUARANTEES" ABOVE,
ASTRA MAKES NO WARRANTIES HEREUNDER, AND ASTRA EXPRESSLY DISCLAIMS ALL OTHER
WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF
MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
15. Indemnification.
(a) The Company agrees to indemnify, defend, and hold harmless
ASTRA, its directors, officers, employees and agents, and defend any action
brought against same with respect to any claim, demand, cause of action, debt or
liability, including reasonable attorneys' fees, to the extent that such action
is based upon a claim that: (i) if true, would constitute a breach of any of the
Company's representations, warranties, or agreements hereunder; (ii) arises out
of the gross negligence or willful misconduct of the Company; or (iii) any of
the Company Material to be provided by the Company hereunder infringes or
violates any rights of third parties, including without limitation, rights of
publicity, rights of privacy, patents, copyrights, trademarks, trade secrets,
and/or licenses.
(b) ASTRA agrees to indemnify, defend, and hold harmless the
Company, its directors, officers, employees and agents, and defend any action
brought against same with respect to any claim, demand, cause of action, debt or
liability, including reasonable attorneys'
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fees, to the extent that such action arises out of the gross negligence or
willful misconduct of ASTRA in connection with ASTRA's performance under this
Agreement.
16. Limitation of Liability.
ASTRA SHALL HAVE NO LIABILITY FOR UNAUTHORIZED ACCESS TO, OR
ALTERATION, THEFT OR DESTRUCTION OF THE COMPANY'S DATA FILES, PROGRAMS OR
INFORMATION THROUGH ACCIDENT, FRAUDULENT MEANS OR DEVICES. ASTRA SHALL HAVE NO
LIABILITY WITH RESPECT TO ASTRA'S OBLIGATIONS UNDER THIS AGREEMENT OR OTHERWISE
FOR CONSEQUENTIAL, EXEMPLARY, SPECIAL, INCIDENTAL, OR PUNITIVE DAMAGES EVEN IF
ASTRA HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN ANY EVENT, THE
LIABILITY OF ASTRA TO THE COMPANY FOR ANY REASON AND UPON ANY CAUSE OF ACTION
SHALL BE LIMITED TO THE AMOUNT ACTUALLY PAID BY THE COMPANY UNDER THIS AGREEMENT
DURING THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE DATE ON WHICH SUCH CLAIM
ACCRUED. THIS LIMITATION APPLIES TO ALL CAUSES OF ACTION IN THE AGGREGATE,
INCLUDING, WITHOUT LIMITATION, TO BREACH OF CONTRACT, BREACH OF WARRANTY,
NEGLIGENCE, STRICT LIABILITY, MISREPRESENTATIONS, AND OTHER TORTS.
17. Dispute Resolution.
(a) In the event that any party to this Agreement has any
claim, right or cause of action against any other party to this Agreement, which
the parties shall be unable to settle by agreement between themselves, such
claim, right or cause of action, to the extent that the relief sought by such
party is for monetary damages or awards, shall be determined by arbitration in
accordance with the Rules of the American Arbitration Association ("AAA"),
through the adjudication by a single arbitrator, in New York, New York, with the
decision of such arbitrator to be final and binding upon all parties. The
prevailing party's fees, costs and and expenses of such arbitration, as
submitted by the AAA, as well as the reasonable fees, costs and expenses of the
prevailing party's own counsel, accountants and other representatives incurred
in connection with the prosecution of such arbitration, shall be reimbursed by
the other party. The parameters of the AAA proceedings undertaken in accordance
with this Section 17 shall be prescribed such that a decision shall be rendered
within sixty (60) days following the initial written reference of the related
dispute to AAA arbitration.
(b) Notwithstanding any other provisions of this Section 17,
in the event that a party against whom any claim, right or cause of action is
asserted commences, or has commenced against it, bankruptcy, insolvency or
similar proceedings, the party or parties asserting such claim, right or cause
of action shall have no obligations under this Section 17 and may assert such
claim, right or cause of action in the manner and forum it deems appropriate,
subject to applicable laws. No determination or decision by the arbitrators
pursuant to this Section 9 shall limit or restrict the ability of any party
hereto to obtain or seek in any appropriate forum, any relief or remedy that is
not a monetary award or money damages.
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18. Miscellaneous.
(a) Neither party any assign this Agreement, or their
respective rights and obligations hereunder, in whole or in part, without the
other party's prior written consent; provided, however, that ASTRA shall be
entitled to assign all of its rights and obligations hereunder to any subsidiary
or affiliated entity without the consent of the Company. Any attempt to assign
this Agreement without such consent (if required) shall be void and of no effect
ab initio. Notwithstanding the immediately preceding sentence, either party may
assign this Agreement or all, but not less than all, of its rights and
obligations hereunder to any entity that acquires it by purchase of stock or by
merger or otherwise, or by obtaining all or substantially all of its assets (a
"Permitted Assignee"); provided, that any such Permitted Assignee thereafter
succeeds to all of the rights and is subject to all of the obligations of the
assignor under this Agreement; and provided, however, that the provisions of
this Section 18 (a) shall in no way modify the provisions of Section 9 (e).
(b) This Agreement shall be governed by and construed in
accordance with the internal laws of the State of New York applicable to
agreements made and to be performed entirely within such State, without regard
to the conflicts of law principles of such State. Each party shall comply in all
respects with all laws and regulations applicable to its activities under this
Agreement.
(c) Notwithstanding the provisions of Section 16, each party
hereto irrevocably submits to the exclusive jurisdiction of (a) the courts of
the State of New York, New York County, or (b) the United States District Court
for the southern District of New York, for the purposes of any suit, action or
other proceeding arising out of this Agreement or any transaction contemplated
hereby or thereby. Each of the Company and ASTRA agrees to commence any such
action, suit or proceeding either in the Untied States District Court for the
Southern District of New York, or if such suit, action or other proceeding may
not be brought in such court for jurisdictional reasons, in the courts of the
State of New York County. Each of the Company and ASTRA further agrees that
service of any process, summons, notice or documents by U.S. registered mail to
such party's respective address set forth below shall be effective service of
process for any action, suit or proceeding in New York with respect to any
matters to which it has submitted to jurisdiction in this Section 18(c). Each of
the Company and ASTRA irrevocably and unconditionally waives any objection to
the laying of venue of any action, suit or proceeding arising out of this
Agreement or the transactions contemplated hereby and thereby in (i) the courts
of the State of New York County, or (ii) the United States District Court for
the Southern District of New York, and hereby and thereby further irrevocably
and unconditionally waives and agrees not to plead or claim in any such court
that any such action, suit or proceeding brought in any such court has been
brought in an inconvenient forum.
(d) If any provisions of this Agreement (or any portion
thereof) or the application of any such provision (or any portion thereof) to
any person or circumstance shall be held invalid, illegal or unenforceable in
any respect by a court of competent jurisdiction, such invalidity, illegality or
unenforceability shall not affect any other provision hereof (or the
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remaining portion thereof) or the application of such provision to any other
persons or circumstances.
(e) All notices or other communications required or permitted
to be given hereunder shall be in writing and shall be delivered by hand, by
facsimile (with confirmation back), or sent, postage prepaid, by registered,
certified or express mail or nationally recognized overnight courier service and
shall be deemed given when so delivered by hand, by facsimile (with confirmation
back), or if mailed, three days after mailing (one business day in the case of
express mail or overnight courier service), as follows:
(i) if to ASTRA, at:
0 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxxxx Xxxxxxxx, President
(ii) if to the Company, at:
00000 Xxxxx Xxxxx Xxxxxxx, Xxxxx 000
Xxxxxxx, XX 00000
Attention: Xxxx Xxxxx, President
(f) The provisions of Sections 9 through 18 hereof shall
survive any termination of this Agreement.
(g) No failure to either party to exercise or enforce any of
its rights under this Agreement shall act as a waiver of such right.
(h) This Agreement, along with the Exhibits which may be
appended hereto in accordance with the terms hereof, contain the entire
agreement and understanding between the parties hereto with respect to the
subject matter hereof and supersede all prior agreements and understandings
relating to such subject matter. Neither party shall be liable or bound to any
other party in any manner by any representations, warranties or covenants
relating to such subject matter expect as specifically set forth herein.
(i) This Agreement may be executed in one or more
counterparts, all of which shall be considered one and the same agreement, and
shall become effective when one or more such counterparts have been signed by
each of the parties and delivered to each of the other parties.
(j) This Agreement may not be amended except by an instrument
in writing signed on behalf of each of the parties hereto.
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(k) This Agreement is for the sole benefit of the parties
hereto and nothing herein expressed or implied shall give or be construed to
give to any person, other than the parties hereto any legal or equitable rights
hereunder.
(l) The headings contained in this Agreement or in any Exhibit
hereto are for reference purposes only and shall not affect in any way the
meaning or interpretation of this Agreement. All Exhibits annexed hereto or
referred to herein are hereby incorporated in and made a part of this Agreement
as if set forth in full herein. Any capitalized terms used in any Exhibit but
not otherwise defined therein, shall have the meaning as defined in this
Agreement. When a reference is made in this Agreement to a Section or an
Exhibit, such reference shall be to a Section of, or an Exhibit to, this
Agreement unless otherwise indicated.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first above written.
ASTRATEK
Name: Xxxx Xxxxxxxx
Title: President/CEO
4TH PERIPHERAL TECHNOLOGIES, INC
Name: Xxxx Xxxxx
Title: Chairman/CEO
