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MASTER CONSULTING SERVICES AGREEMENT EXHIBIT NO: 10.37
This agreement for professional services (the "Agreement") is made and entered
into as of April 9, 2001 ("Effective Date"), by and between ▇▇▇▇▇ ▇. ▇▇▇▇▇,
residing at ▇▇ ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇ ("Consultant") and Net2000 Communications
Services, Inc., a Delaware corporation ("Net2000"), with offices at ▇▇▇▇ ▇▇▇
▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇.
1. SERVICES AND SCOPE OF WORK
1.1 SERVICES. Consultant agrees to perform for Net2000 the tasks,
responsibilities and services (the "Services") described on the attached task
specific schedule(s) (individually, a "Statement of Work" or "SOW") to which the
parties may agree from time to time, with each Statement of Work to be
consecutively numbered and attached hereto. Such services shall be provided in
accordance with the provisions of this Agreement and the applicable Statement of
Work and shall be on either a firm, fixed price or time and materials basis as
specified in the applicable Statement of Work executed by both parties.
1.2 STATEMENT OF WORK. Unless otherwise agreed by the parties in writing, each
Statement of Work shall be in writing and include the following information: (i)
a description of the Services to be performed; (ii) the commencement and
completion dates of the Services; (iii) a list of deliverables to be provided by
Consultant, (the "Deliverables") and corresponding delivery dates; (iv) the
method of compensation to be provided to the Consultant (e.g., time and
materials, firm fixed price or otherwise) and other appropriate pricing terms
such as hourly rates; and (v) other information the parties mutually agree to
include.
2. TIME REPORTS AND EXPENSES
2.1 TIME REPORTS. For Services performed on a time and materials basis,
Consultant will be compensated in accordance with the applicable Statement of
Work for actual work performed.
2.2 OUT-OF-POCKET EXPENSES. Net2000 will reimburse Consultant for "Out-of-Pocket
Expenses" which shall include reasonable, necessary and actual out-of-pocket
expenses incurred by Consultant in order to perform the Services and travel and
lodging, but shall not include Consultant's overhead costs (or allocations
thereof) or administrative expenses.
2.3 PAYMENT TERMS AND CONDITIONS. Net2000 shall pay Consultant for all Services
performed under Statement of Work and for any constructive or express changes
thereto, pursuant to the following terms and conditions: Consultant will submit
the weekly charges and/or expenses to be invoiced for Services performed under
any Statement of Work to Net2000 for review and approval. Weekly progress
payments and expenses will be invoiced over the duration of the project and
shall be paid by Net2000 approximately thirty (30) days after Net2000's receipt
of such invoice. In the event of any disputed amount, Net2000 and Consultant
will work together to resolve issues relating to disputed amounts.
3. PROGRESS REPORTS AND MEETINGS
3.1 REPORTS. Consultant shall submit a detailed written progress report to
▇▇▇▇▇▇▇ ▇▇▇▇▇▇ as reasonably requested by Net2000, (but in no event less often
than once each month, unless mutually agreed) during the term of each Statement
of Work. Such progress reports will detail the current status of Consultant
activities, the progress of the Services being performed, and specific resources
expended since the last report (as well as a cumulative total to date). The
progress report shall also identify both actual and anticipated problem areas,
the impact thereof on Consultant's work effort, and action being taken or
alternative actions to be taken to remedy such problems.
4. LIMITATION OF LIABILITY
4.1 IN NO EVENT SHALL NET2000 BE LIABLE TO CONSULTANT FOR ANY INDIRECT, SPECIAL,
INCIDENTAL, CONSEQUENTIAL OR PUNITIVE LOSS OR DAMAGE OF ANY KIND, INCLUDING LOST
PROFITS (WHETHER OR NOT NET2000 HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS
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OR DAMAGES) BY REASON OF ANY ACT OR OMISSION IN ITS PERFORMANCE UNDER THIS
AGREEMENT.
5. OWNERSHIP
5.1 SERVICES MADE FOR HIRE. All Deliverables developed for and provided to
Net2000 by Consultant in performing the Services shall be deemed "works made for
hire" and the sole and exclusive property of Net2000 unless otherwise agreed in
writing. To the extent that any such work is not deemed a "work made for hire"
and Net2000 property by operation of law, Consultant hereby irrevocably assigns,
transfers and conveys (now and in the future) to Net2000 all of its right, title
and interest in such work, including but not limited to all rights of patent,
copyright, trademark or other proprietary rights in such work.
5.2 OWNERSHIP PROVISIONS. Consultant agrees that it shall include and enforce
such ownership provisions in all subcontracts, if any, to ensure the exclusivity
of Net2000 ownership as described in Section 5.1 above. Net2000, its successors
and assigns, shall have the unfettered right to obtain, and to hold in its own
name, patents, copyrights, registrations, or such other intellectual property
rights and protections as may be appropriate.
6. CONFIDENTIALITY AND PROPRIETARY RIGHTS
6.1 NON-DISCLOSURE. Consultant shall preserve as strictly confidential and
proprietary, whether in tangible or intangible form and regardless of the media,
all information and material, including but not limited to Net2000 information,
materials, strategic plans, network architecture, financial information,
personnel files, Net2000 (or potential Net2000) lists, work and tasks performed
and reports provided pursuant to this Agreement, writings, improvements or
discoveries, whether or not copyrightable or patentable, which are written,
conceived, made or discovered by Consultant and are in any way related to the
performance of this Agreement, data or other information that Net2000 may
provide to Consultant, or Consultant may receive, in connection with this
Agreement or related Statements of Work (collectively "Confidential
Information"). Consultant shall hold the Confidential Information in confidence,
with the same degree of care that it applies to its own confidential information
of like importance, and never less than reasonable care, except that Consultant
may disseminate such Confidential Information to subcontractors, if any,
provided that such subcontractors are on a need to know basis and have signed
non-disclosure agreements, prior to such dissemination. Consultant agrees to
preserve any copyright, trademark and other proprietary rights notices on all
Confidential Information. The foregoing obligations shall survive termination or
expiration of this Agreement or any Statement of Work.
7. TERM AND TERMINATION
7.1 TERM. The term of this Agreement will commence on the Effective Date and
will continue in effect for at least ninety (90) days or until both parties
mutually agree to terminate, unless sooner terminated pursuant to this Article
7. In the event of the termination of this Agreement, it shall remain in full
force and effect with respect to any then-outstanding Statements of Work issued
under this Agreement until all such Statements of Work are completed, expired or
terminated.
7.2 TERMINATION FOR CAUSE. This Agreement and/or any Statement of Work issued
under it may be terminated by either party (reserving cumulatively all other
rights and remedies at law or in equity unless expressly excluded herein) in the
event the other party has materially breached this Agreement or any Statement of
Work including, but not limited to, Net2000's failure to pay undisputed amounts
due under this Agreement or any Statement of Work (i) upon receipt of written
notice of termination if such material breach is incapable of cure; or (ii) upon
the expiration of thirty (30) days (or such additional cure period as the
non-breaching party may authorize in writing) after receipt of written notice of
termination if the material breach is capable of cure and has not been cured.
Waiver of a particular material breach shall not imply waiver of any other
material breach. Each party agrees to continue performing its obligations under
this Agreement while any dispute is being resolved except to the extent the
issue in dispute precludes performance and the parties have not mutually agreed
to continue performance. In the event of material breach, Net2000 reserves the
right to withhold payment for disputed amounts for services that are part of the
material breach dispute until the particular material breach is resolved.
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7.3 TERMINATION FOR CONVENIENCE. Net2000 may terminate this Agreement and/or any
particular Statement of Work, or any portion thereof, for convenience and
without cause. Exercise of this right must be accomplished by giving Consultant
prior written notice designating the termination date (which termination date
shall not be less than thirty (30) days following such notice) and by paying
Consultant all non-disputed sums due Consultant for work actually performed
under a particular Statement of Work up until the date of termination, including
a pro-rata portion of the next-scheduled payment for any partially completed
Services, determined on a percentage-to-completion basis and including
reimbursement of discounts which would not otherwise be offered under a
Statement of Work of short duration. In the event that a purported termination
for cause by Net2000 under Section 7.2 above is determined by a competent
authority not to be properly a termination for cause, then such termination by
Net2000 shall be deemed to be a termination for convenience under this Section
7.3
7.4 STATEMENTS OF WORK. The termination of any particular Statement of Work
shall not affect the parties' respective duties and obligations under any other
Statements of Work then in effect, except as to discounts offered by Consultant
to Net2000. 8. TRAVEL
8.1 Net2000 may request Consultant to travel in the performance of duties.
8.2 TRAVEL REIMBURSEMENT PROCEDURE.
(a) Consultant shall initially be responsible for travel expenses.
Consultant will then invoice Net2000 for the travel. All travel,
transportation and related expense receipts shall accompany the invoices
for which reimbursement is sought.
(b) Expense reports must be filed within thirty (30) days of completion of
travel and invoiced on the next regular invoice submission to Net2000.
(c) Net2000-approved travel and related Net2000-approved out-of pocket
expenses incurred in performing Services for Net2000 under the Agreement
shall be invoiced to Net2000 at cost.
(d) Reimbursement will be as follows:
(1) Commercial transportation--Reimbursable on an "incurred cost"
basis at economy, tourist or coach rates; or business class for
international travel.
(2) Private automobile--Reimbursable at $.34 cents per mile.
(3) Per diem--Reimbursable for actual lodging and local
transportation. Actual meal expenses shall not exceed $30.00 per day
9. GENERAL
9.1 INFORMAL DISPUTE RESOLUTION. The parties agree that, prior to initiating
formal dispute resolution, they will attempt to resolve disputes informally by
working together to promptly address problems and escalate issues within their
respective companies as reasonably required.
9.2 NOTICES. All notices under this Agreement shall be deemed duly given upon
delivery, if delivered by hand, or three days after posting, if sent by
certified mail, return receipt requested, to the addresses set forth below or to
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such other address as either party may designate by notice hereto.
For Net2000: Net2000 Communications Services, Inc
▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇, ▇▇▇▇▇
Attn: Legal Dept.
For Consultant: ▇▇▇▇▇ ▇. ▇▇▇▇▇
▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
9.3 GOVERNING LAW
This Agreement shall be interpreted, construed and governed by the laws
of the State of New York, without regard to conflict of law provisions.
9.4 ENTIRE AGREEMENT. This Agreement, together with any Statement of Work,
constitutes the entire agreement between the parties hereto with respect to the
subject matter hereof and may not be modified except by an instrument in writing
signed by a duly authorized representative of each of the parties. All prior
agreements, documents, proposals, representations, statements, negotiations, and
undertakings, whether written or oral, are superseded by this Agreement. This
Agreement shall be binding upon the Net2000 and Consultant and their permitted
successors and assigns.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
date first above written.
▇▇▇▇▇ ▇. ▇▇▇▇▇ Net2000 Communications Services, Inc.
By /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇ By /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
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Name Name
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Title Title CFO
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Date April 9, 2001 Date April 9, 2001
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STATEMENT OF WORK 1.0 (4/01)
Individual: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Job Description: Responsible for: (1) providing
leadership and guidance for Net2000's I4 Initiative;
(2)providing managerial oversight for Net2000's
PriceWaterhouse Coopers project and Siebel
implementation project; (3) integration of the FreBon
International Corporation and Vision I.T.
acquisitions so that visual dialtone is integrated as
a new product offering and the acquired companies are
integrated into Net2000's core business; (4) conduct
competitive analyses, technology and process
assessments, and business consulting for additional
Net2000 business initiatives; (5) any other matters
or projects mutually agreed upon by Consultant and
▇▇▇▇▇▇▇ ▇▇▇▇▇▇.
Compensation/Hours: Compensation shall be at an annualized rate of
$250,000 salary pro rated and paid in monthly
increments of $20,833.33 during the length of the
Agreement. Consultant shall be required to work at
least 40 hours per week and spend at least 4 days per
week at Net2000 headquarters in Herndon, Virginia or
other Net2000 offices.
Net2000 will reimburse Consultant for reasonable
commuting fees for travel between New York, NY and
Herndon, VA and reasonable housing costs associated
with living in the Herndon area.
Term: The term of this Statement of Work will commence on
the date signed by Net2000 below and will continue
until both parties mutually agree to terminate,
unless sooner terminated pursuant to the Agreement.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
date first above written.
▇▇▇▇▇ ▇. ▇▇▇▇▇ Net2000 Communications Services, Inc.
By /s/▇▇▇▇▇ ▇. ▇▇▇▇▇ By /s/▇▇▇▇▇▇ ▇▇▇▇▇▇
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Name Name
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Title Title CFO
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Date April 9, 2001 Date April 9, 2001
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