EXHIBIT 10.53
CONSULTANT AGREEMENT
Effective Date: February 21, 2002
Consultant: Xxx Xxxxxx
Address: 0000 Xxxxxxxxx Xxxxx, Xxxxxx, XX 00000
Phone: 000-000-0000
This Consultant Agreement ("Agreement") is effective on the effective date
identified above ("Effective Date") between VIEWLOCITY, INC., a Delaware
corporation with offices at The Prominence at Buckhead, 0000 Xxxxxxxx Xxxx,
Xxxxx 0000, Xxxxxxx, Xxxxxxx 00000 ("Viewlocity") and the consultant identified
above ("Consultant").
1. ENGAGEMENT FOR SERVICES.
Viewlocity hereby engages Consultant and Consultant agrees to be so engaged
on the terms and conditions set forth in this Agreement to perform certain
services as described on EXHIBIT A attached hereto (the "Services"). Consultant
shall undertake and accomplish the Services with quality standards accepted by
Viewlocity and shall provide to Viewlocity in regular intervals (as reasonably
requested by Viewlocity) interim reports detailing the activities and
accomplishments concerning the Services performed. In performing the Services,
Consultant shall communicate with the Viewlocity manager specified on EXHIBIT A.
2. FEES. Viewlocity shall pay Consultant for the Services at the rates as
specified in EXHIBIT A. Viewlocity shall reimburse Consultant for all actual,
reasonable, out-of-pocket expenditures incurred in connection with Services
provided that such expenses are authorized by Viewlocity in writing in advance.
Unless Viewlocity agrees otherwise, all airline and lodging reservations shall
be made by Viewlocity travel coordinators. Consultant shall not be entitled to
any other compensation for such Services. It is expressly understood that
Consultant shall have no interest in or claim to any xxxxxxxx by Viewlocity to
its clients for professional services that may be generated in connection with
the Services hereunder. Unless otherwise specified on EXHIBIT A, Consultant will
submit invoices for the previous month period on a monthly basis. Each invoice
will specify the hours spent on the Services, an itemization of the expenses, as
well as any other supporting documentation which Viewlocity reasonably requests.
Viewlocity will pay undisputed invoices within thirty (30) days of its receipt
and approval of the same.
3. RELATIONSHIP OF THE PARTIES.
3.1. INDEPENDENT CONSULTANT. Consultant acknowledges that Consultant is
an independent Consultant and that Consultant is fully responsible for
Consultant's own federal, state and local taxes and that, as an independent
Consultant, neither Consultant nor its employees is eligible to participate in
any employee benefit program offered by Viewlocity to its employees. Consultant
further understands and agrees that Consultant is not covered under Viewlocity's
worker's compensation insurance or state unemployment insurance coverages.
Consultant expressly represents that it is an independent Consultant under the
laws of the United States and the common law and acknowledges that Viewlocity is
relying upon this representation. It is understood that Consultant maintains an
independent business and, subject to the provisions of this Agreement, may work
on other projects during or after the term of this Agreement. However,
Consultant will use his or her best efforts to insure the timely and proper
completion of the Services. Viewlocity and Consultant acknowledge and agree that
this Agreement does not constitute or appoint Consultant as an agent of
Viewlocity for any purpose whatsoever. Consultant is prohibited from acting as,
or holding itself out, as agent of Viewlocity.
3.2. METHOD OF PERFORMING SERVICES. Consultant will determine the method,
details and means of performing the Services to be carried out hereunder.
Consultant will observe at all times the security and safety policies of
Viewlocity and its clients while on their premises. In addition, Viewlocity
shall be entitled to exercise a broad general power of supervision and control
over the results of work performed by Consultant to ensure satisfactory
performance. This power of supervision includes the right to inspect, stop work,
make suggestions and recommendations as to the details of the Services, and
request modifications to the scope of the Work Order; provided however that if
any change results in a change to the scope of Services or estimated charges
from that originally agreed upon as set forth in the Services, such change must
be agreed to in writing signed by both parties.
4. TERM AND TERMINATION. Unless earlier terminated pursuant to the terms set
forth in the following section, this Agreement shall remain in effect until all
Services are complete, but in any case the Agreement shall terminate one (1)
year
after the Effective Date. Viewlocity may terminate this Agreement at any time
upon verbal or written notice to Consultant. Consultant acknowledges the nature
of the Services to be provided under this Agreement and the importance to
Viewlocity of the reputation, skill, judgment and competency of all individuals
and entities associated with Viewlocity. Viewlocity reserves the right to
replace or discontinue its association with any individual or entity at any
time, in whole or in part, within Viewlocity's sole discretion. Consultant may
terminate this Agreement at any time upon at least two (2) weeks prior written
notice. In addition, either party may terminate this Agreement immediately upon
written notice to the other party in the event of a material breach by the other
party of the terms of this Agreement. In the event any Services are outstanding
upon the termination or expiration of this Agreement, then, at the request of
Viewlocity, Consultant agrees to complete such Services or provide assistance as
reasonably requested by Viewlocity to transition the completion of such Services
to Viewlocity or a third party designated by Viewlocity; provided that
Viewlocity agrees to pay for all such Services and transition assistance after
the termination or expiration of this Agreement at the rates set forth herein
unless the parties agree in writing otherwise. Upon the expiration or
termination of this Agreement or, if requested to complete Services and/or
transition services in accordance with the preceding sentence, then upon the
completion of such Services and/or transition services, Consultant (a) shall
cease all performance of the Services; (b) shall immediately provide to
Viewlocity, without cost to Viewlocity, work product and files developed by
Consultant under this Agreement, in whatever state of completion; and (c) shall
immediately return to Viewlocity all Viewlocity property, including, but not
limited to, its Confidential Information and any hardware, software, office
supplies or other equipment, materials or property that were provided by
Viewlocity. Within ten (10) days of the expiration or termination of this
Agreement, Consultant shall provide Viewlocity with a signed written statement
certifying that it has returned all Viewlocity property to Viewlocity and
complied with this Section 4. Termination of this Agreement shall not limit
either party from pursuing other remedies available to it, including injunctive
relief, nor shall such termination relieve Consultant of its obligation to pay
all fees that have occurred or are otherwise owed by Consultant under this
Agreement. Upon termination or expiration of this Agreement, all provisions of
this Agreement concerning the ongoing interests of the parties shall continue
and survive in full force and effect, including without limitation. Sections 4
through 10.
5. WARRANTIES AND REPRESENTATIONS. Consultant represents and warrants to
Viewlocity that: (a) Consultant has full right and power to enter into this
Agreement; that the deliverables will be original; that the deliverables will
not contain any libelous or otherwise unlawful material or violate any
copyright, trademark, patent, or other intellectual property right; and that the
deliverables will not violate any personal or proprietary right of any person or
entity; (b) Consultant will comply at all times with all applicable laws and
regulations of any jurisdiction in which Consultant acts; (c) Consultant will
perform the Services in a good and workmanlike manner consistent with generally
accepted industry standards and will operate in a professional and ethical
manner in the execution of all Services under this Agreement; (d) Consultant
will comply at all times with all security provisions in effect from time to
time at Viewlocity's premises or client's premises, with respect to access to
premises, and all materials belonging to Viewlocity or client; (e) Consultant
shall not use Viewlocity's name in any promotional materials or other
communications with third parties without Viewlocity's prior written consent;
(f) Consultant will not unlawfully use or disclose the trade secrets or
proprietary information of third parties; (g) Consultant will not utilize any
program belonging to Viewlocity without Viewlocity's permission; (h) Consultant
will not utilize any third party program without the prior consent of Viewlocity
and the right to do so; (i) Consultant will not discriminate, joke, condone
stereotypes or engage in other prejudicial or offensive behavior, on the basis
of sex, age, religion, race, color, national origin, disability, or any other
category protected by law; (j) Consultant will not engage in unwelcome sexual
advances to any individual, including, without limitation, verbal and physical
conduct; and (k) Consultant will notify Viewlocity in writing of any potential
or actual conflict of interest between Consultant and Viewlocity.
6. WORK PRODUCT. For purposes of this Agreement, "Work Product" shall mean the
data, materials, documentation, computer programs, inventions (whether or not
patentable), pictures, audio, video, artistic works, and all works of
authorship, including all worldwide rights therein under patent, copyright,
trade secret, confidential information, or other property right, created or
developed in whole or in part by Consultant, whether prior to the date of this
Agreement or in the future, while retained by Viewlocity and that either (i) is
created within the scope of the Services or (ii) has been or will be paid for by
Viewlocity. All Work Product shall be considered work made for hire by the
Consultant and owned by Viewlocity. If any of the Work Product may not, by
operation of law, be considered work made for hire by Consultant for Viewlocity,
or if ownership of all right, title, and interest of the intellectual property
rights therein shall not otherwise vest exclusively in Viewlocity, Consultant
hereby assigns to Viewlocity, and upon the future creation thereof automatically
assigns to Viewlocity, without further consideration, the ownership of all Work
Product. Viewlocity shall have the right to obtain and hold in its own name
copyrights, registrations, and any other protection available in the Work
Product. Consultant agrees to perform, during or after Consultant's engagement,
such further acts as may be necessary or desirable to transfer, perfect, and
defend Viewlocity's ownership of the Work Product that are reasonably requested
by Viewlocity. To the extent that any preexisting materials are contained in the
materials Consultant delivers to Viewlocity or Viewlocity's customers,
Consultant grants to Viewlocity an irrevocable, nonexclusive, worldwide,
royalty-free license to: (i) use and distribute (internally or externally)
copies of, and prepare derivative works based upon, such preexisting materials
and derivative works thereof, and (ii) authorize others to do any of the
foregoing.
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7. INTELLECTUAL PROPERTY RIGHTS. Viewlocity, its affiliates and/or its
licensors are the owners of all intellectual property rights, including without
limitation patent, trademark, copyright, and trade secret rights, in any
intellectual property, including without limitation any software, and the
techniques and ideas embodied and expressed in the foregoing, that are provided
to Consultant pursuant to the terms of this Agreement ("Intellectual Property").
Any Intellectual Property provided to Consultant by Viewlocity may only be used
by Consultant in order to facilitate the Services during the term of this
Agreement. Consultant acknowledges that, except for the limited license granted
hereunder, Consultant has no rights in or to the Intellectual Property or any
copies thereof and Consultant shall not at any time during and after the
expiration or termination of this Agreement in any way question or dispute the
ownership or any other such rights by Viewlocity; cause or permit reverse
engineering, disassembly, embedding, decompilation, use, or other modification
of the Intellectual Property; or copy, duplicate or reproduce the Intellectual
Property. To the extent Consultant is permitted to make copies hereunder,
Consultant shall include Viewlocity's copyright, trademark, service xxxx, and
other proprietary notices on any complete or partial copies of the Intellectual
Property in the same form and location as the notice appears on the original
diskette or tape jackets, as appropriate.
8. RESTRICTIVE COVENANTS.
8.1. NONDISCLOSURE. During the course of carrying out the Services,
Consultant may have access to Confidential Information (as defined below) of
Viewlocity. In connection therewith, Consultant will hold in confidence and,
without the consent of Viewlocity, will not use, reproduce, distribute,
transmit, or disclose, directly or indirectly, the Confidential Information.
Consultant may only use the Confidential Information as necessary for performing
Services of this Agreement. Consultant acknowledges and agrees that its duty
hereunder extends to both Confidential Information of Viewlocity, its licensors,
affiliates, partners, and clients. Unless otherwise expressly authorized in
writing by Viewlocity, all Confidential Information of Viewlocity made available
to Consultant, including copies thereof or any notes, records, data, memoranda
or models of any nature that embody the Confidential Information, shall be
returned to Viewlocity and all electronic copies of any Confidential Information
shall be destroyed upon the first to occur of expiration or termination of this
Agreement or request by Viewlocity. Confidential Information shall not include
information if and only to the extent that Consultant establishes that the
information: (a) is or becomes a part of the public domain through no act or
omission of the Consultant; (b) was in the Consultant's lawful possession prior
to the disclosure and had not been obtained by the Consultant either directly or
indirectly from Viewlocity; (c) is lawfully disclosed to the Consultant by a
third party without restriction on disclosure; (d) is independently developed by
the Consultant; or (e) is disclosed by the Consultant pursuant to a requirement
of a governmental agency or by operation of law, provided that the Consultant
shall disclose only that part of the Confidential Information which it is
required to disclose and shall notify Viewlocity of such Confidential
Information prior to such disclosure in order to provide Viewlocity an
opportunity to seek an appropriate protective order or other relief to prevent
such disclosure. The Consultant shall cooperate fully in all efforts to prevent
disclosure of Viewlocity's Confidential Information. The obligations of
Consultant with regard to the Confidential Information that constitutes trade
secrets remain in effect for as long as such information shall remain a trade
secret under applicable law and, with regard to all other Confidential
Information, shall remain in effect during the term of this Agreement and for
three (3) years thereafter. As used herein, "Confidential Information" means (i)
information of Viewlocity in all forms which derives economic value, actual or
potential, from not being generally known to, and not being readily
ascertainable by proper means by other persons who can obtain economic value
from its disclosure or use, as well as (ii) other information that is provided
to or obtained by Consultant and that is valuable to Viewlocity and not
generally known by the public.
8.2. CUSTOMER NONSOLICITATION. Consultant agrees that during the term
of Consultant's engagement with Viewlocity ("Restrictive Period") Consultant
shall not for any reason, on Consultant's own behalf or on behalf of any
person, firm, partnership, association, corporation, limited liability
company or business organization, entity or enterprise, other than
Viewlocity, solicit, contact, or call upon any customer or prospective
customer of Viewlocity, or any representative of any customer or prospective
customer of Viewlocity, with a view to sell or provide any deliverable or
service competitive with any deliverable or service sold or provided or under
development by Viewlocity in Viewlocity Business (as defined below) during
the two (2) years immediately preceding the termination of this Agreement
("Limitation Period"), provided that the restrictions and set forth in this
paragraph shall apply only to customers or prospective customers of
Viewlocity, or representatives of customers or prospective customers of
Viewlocity, with which Consultant had contact during the Limitation Period as
a result of being retained by Viewlocity. As used herein, "Viewlocity
Business" shall mean "Viewlocity Business" shall mean the business of selling
software products and services for the enterprise application or business to
business integration market or the supply chain application software market.
8.3. EMPLOYEE NONRECRUIT. During the Restrictive Period Consultant agrees
that Consultant shall not recruit, hire or assist others in calling upon,
recruiting or soliciting any person who is or was an employee of Viewlocity
during the Limitation
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Period, for the purpose of having such person work in a similar capacity for any
other corporation, association, entity, or business providing services
competitive with Viewlocity Business.
8.4. ACKNOWLEDGEMENTS. The parties agree that: (i) the periods of
restriction contained in this Agreement are fair and reasonable in that they are
reasonably required for the protection of Viewlocity; (ii) by having access to
information concerning employees and actual or prospective customers of
Viewlocity, Consultant shall obtain a competitive advantage as to such parties;
(iii) the covenants and agreements of Consultant contained in this Agreement are
reasonably necessary to protect the interests of Viewlocity in whose favor said
covenants and agreements are imposed in light of the nature of Viewlocity
Business and the involvement of Consultant in Viewlocity Business; (iv) the
restrictions imposed by this Agreement are not greater than are necessary for
the protection of Viewlocity in light of the substantial harm that Viewlocity
will suffer should Consultant breach any of the provisions of said covenants or
agreements; and (v) the covenants and agreements of Consultant contained in this
Agreement form material consideration for this Agreement and Consultant's
engagement by Viewlocity.
8.5. EQUITABLE RELIEF. Consultant agrees that the ascertainment of
damages in the event of a breach of Sections 8.1, 8.2 or 8.3 would be difficult,
that Viewlocity would suffer irreparable harm as a result of a breach, and that
money damages alone would be an inadequate remedy for the injuries and damages
which would be suffered by Viewlocity from such breach. Consultant therefore
agrees: (i) that, in the event of her breach of Sections 8.1, 8.2 or 8.3, in
addition to and without limiting any of the remedies or rights which Viewlocity
may have at law or in equity or pursuant to this Agreement, Viewlocity shall
have the right to injunctive relief or other similar remedy in order to
specifically enforce the provisions of Sections 8.1, 8.2 or 8.3; and (ii) to
waive and not to (A) assert any defense to the effect that Viewlocity has an
adequate remedy at law with respect to any such breach, (B) require that
Viewlocity submit proof of the economic value of any trade secret, or (C)
require that Viewlocity post a bond or any other security. Nothing contained
herein shall preclude Viewlocity from seeking monetary damages of any kind,
including reasonable fees and expenses of counsel and other expenses, in a court
of law.
9. INDEMNIFICATIONS. Consultant shall indemnify, defend and hold harmless
Viewlocity, its officers, directors, agents, employees, successors and assigns
from and against any and all actions, causes of action, claims, liabilities,
losses, damages, costs and expenses, including reasonable attorneys' fees, for
any loss, damage, destruction of or damage to any tangible property, or for
bodily injury, sickness, disease or death sustained by any person (including
employees of Viewlocity and Consultant), if such loss, damage, destruction,
injury, sickness, disease or death arose out of or was in any way connected with
(a) the Services provided under this Agreement or with the performance of or
failure to perform the Services under this Agreement by Consultant, whether or
not such loss, damage, destruction, injury, sickness, disease or death was
caused in part by the negligence of Consultant; (b) charges of discrimination
brought under the Equal Employment Opportunity Commission and the Workers
Compensation Board (or similar department, commission or bureau), claims and
losses alleging failure to comply with federal and state wage and hour laws,
wrongful termination, discrimination, denial of due process or other labor-
related causes of action resulting from employee conduct, hiring, discipline, or
termination or claims of sexual or other harassment by Consultant or any
employee of Consultant; (c) any federal or state income tax withholding
liability or taxes arising under the Federal Insurance Contributions Act or
under the Federal Unemployment Tax Act, or similar federal or state tax,
resulting from this Agreement; or (d) a breach by Consultant of the
representations or warranties in Section 3.
10. MISCELLANEOUS.
10.1. COMPETITORS. During the term of this Agreement Consultant shall not
enter into similar arrangements with Viewlocity's competitors to provide
services similar to the Services provided hereunder.
10.2. NONEXCLUSIVITY AND NO COMMITMENT. Viewlocity may enter into similar
arrangements with other parties. In addition, Viewlocity shall be under no
commitment to place Consultant resources on any engagements or permit Consultant
to perform Services on its behalf under the terms of this Agreement.
10.3. ASSIGNMENT. Consultant may not assign, subcontract, or otherwise
transfer this Agreement or the license granted to Consultant herein, or any of
its rights or obligations under this Agreement, to any party without the prior
written consent of Viewlocity, which consent shall not be unreasonably withheld.
Viewlocity may assign this Agreement to any of its subsidiaries, parent company
or other affiliates or upon the merger, consolidation or sale of substantially
all of the assets of Viewlocity upon notice to Consultant. This Agreement shall
be binding upon and inure to the benefits of the parties, their legal
representatives, permitted transferees, successors and assigns as permitted by
this Agreement.
10.4. RECORD KEEPING. During the term of this Agreement and for three (3)
years thereafter, Consultant shall maintain records of all expenses relating to
Consultant's Services and to expenses incurred in connection therewith. During
the term of this Agreement and for three (3) years thereafter, Consultant grants
Viewlocity the right, which Viewlocity will exercise at its
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own expense and no more than once per year, to enter Consultant's premises
during business hours for the sole purpose of examining Consultant's records and
other information relating to Consultant's provision of Services hereunder.
10.5. NOTICES. All notices required to be given hereunder shall be given
in writing and shall be delivered either by hand, by certified mail with proper
postage affixed thereto, or by facsimile (with confirmation copy sent by
registered mail) addressed to the signatory at the address set forth on the
signature page, or such other person and address as may be designated from time
to time in writing. With respect to any notice to Viewlocity, a copy of each
notice shall be sent to the following:
Viewlocity, Inc.
The Prominence at Buckhead
0000 Xxxxxxxx Xxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxx XXX 00000
Attn: Legal Department
All such communications shall be deemed received by the other party upon
the earlier of actual receipt or actual delivery.
10.6. GOVERNING LAW. This Agreement shall be governed and interpreted in
accordance with the laws of the Georgia without regard to its conflicts of laws
principles. Subject to the necessity to obtain injunctive relief, Consultant
consents to submit to the exclusive jurisdiction of the courts in Georgia.
10.7. COMPLETE AGREEMENT. This Agreement, including the exhibits attached
hereto, supersedes in full all prior discussions and agreements, oral and
written, between the parties and constitutes the entire understanding of the
parties relating to the subject matter hereof. Consultant accepts that any and
all representations, undertakings and warranties which are not expressly
included shall have no force or effect, and Consultant accepts that it has not
been induced to enter into this Agreement by any such matters. No amendment or
modification of this Agreement shall be valid or binding upon the parties unless
it is in writing and signed by the duly authorized officers of the parties. If
any provision hereof is declared invalid by a court of competent jurisdiction,
such provision shall be ineffective only to the extent of such invalidity, so
that the remainder of that provision and all remaining provisions of this
Agreement shall be valid and enforceable to the fullest extent permitted by
applicable law. No delay or failure in exercising any right hereunder and no
partial or single exercise thereof shall be deemed to constitute a waiver of
such right or any other rights hereunder. No consent to a breach of any express
or implied term of this Agreement shall constitute a consent to any prior or
subsequent breach.
10.8. EXECUTION. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original but which together shall
constitute the same instrument. Each party agrees to be bound by its own
telecopied or facsimiled signature, and agrees that it accepts the telecopied or
facsimiled signature of the other party hereto.
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IN WITNESS WHEREOF, Viewlocity and Consultant have caused this Agreement to
be executed by their respective, duly authorized officers or representatives,
effective as of the Effective Date.
VIEWLOCITY, INC.: CONSULTANT (Full Legal Name):
Xxx Xxxxxx
By: /s/ C. Xxxxxxx Xxxxxxx
-------------------------------- By: /s/ Xxx Xxxxxx
Printed Name: C. Xxxxxxx Xxxxxxx --------------------------------------
Title: CEO & President
Address: 0000 Xxxxxxxx Xxxx Printed Name: Xxx Xxxxxx
Suite 1700 Title: Independent Contractor--Consultant
Xxxxxxx, Xxxxxxx 00000
Address: 0000 XXXXXXXXX XXXXX
Date: February 21, 2002
XXXXXX, XX 00000
Date: February 21, 2002
EXHIBIT A
ATTACHED TO AND MADE A PART OF the Consultant Agreement ("Agreement")
between Viewlocity, Inc. ("Viewlocity") and Xxx Xxxxxx (Consultant").
A. DESCRIPTION OF "SERVICES"
A.1. Project Description: Consult and participate in Viewlocity, Inc.
activities as directed.
A.2. Services To Be Performed: Provide counsel, research, development,
participation and other business activities as requested by
Viewlocity, Inc.
A.3. Materials To Be Delivered: As determined and resulting from the
services provided as listed above.
A.4. Commencement and Termination Dates of Agreement:
a. Commencement : February 21, 2002
b. Expiration : The date that Viewlocity informs Consultant
that his services are no longer needed but no later than
February 21, 2003. Agreement can be renegotiated and
continued upon desire of both parties should services be
desired after February 21, 2003.
A.6. Authorized Work Order Not To Exceed: The date that Viewlocity
informs Consultant that his services are no longer needed.
B. COMPENSATION PROVISIONS
B.1. Payment Terms: Consultant will work 20 hours/week and receive
$7,000 per month. Additional days will be compensated at a rate
of $l,000/day, assuming an 8 hour work day.
B.2. Payment Schedule: Monthly in response to Consultant turning in an
invoice for his previous months services to Accounts Payable.
B.3. Expenses: Viewlocity shall reimburse Consultant for authorized
expenses incurred by Consultant in the performance of work and rendering of
services under this Agreement, provided that reimbursement of expenses is in
accordance with Viewlocity Policy. Consultant shall obtain receipts for all
expenses in excess of $10.00 and shall submit receipts to Viewlocity.
B.4. Authorized Expenses: Expenses as detailed in Viewlocity's travel
policy.
C. VIEWLOCITY MANAGER
C. Xxxxxxx Xxxxxxx, CEO & President, Atlanta GA, USA
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