EXHIBIT 10.9
PEARL INVESTMENT COMPANY
INDEPENDENT CONTRACTOR AGREEMENT
This Independent Contractor Agreement ("Agreement") is entered into
between Pearl Investment Company ("Company") and Xxxxxxxxxx Consulting, LLC
("Independent Contractor") and is effective on the date it is signed by the last
signatory. The Company and the Independent Contractor are referred to in this
Agreement together as the "Parties", "we", "our" or "us", or individually as a
"Party".
RECITALS
The Parties desire to use this Agreement to specify the work the Company
may offer the Independent Contractor and how the Independent Contractor will be
compensated for any work it accepts from the Company.
The work the Company may offer the Independent Contractor specifically
includes direct and indirect involvement in engineering, business development,
and organizational consulting.
The Company owns certain confidential information crucial to its business,
including, but not limited to: proprietary and confidential information relating
to such matters as the finances; methods of operation and competition; pricing;
marketing plans and strategies; engineering designs, standards, methods and
procedures; industry analyses of market, supply, demand, and pricing; equipment
and operational requirements; personnel, clients, independent contractors, and
suppliers of the Company; and all other trade secret information not clearly
known to the public ("Confidential Information"). The Company also owns trade
secret information regarding its existing and prospective clients, including
their identities, contact people, addresses, telephone numbers, needs and
records, and about the Company sources for referrals and new business, and
market data.
In addition, the work the Company may offer the Independent Contractor
specifically includes access to confidential information provided to the Company
by its clients subject to contractual confidentiality provisions and/or
confidentiality agreements ("Client Records").
Due to the value of the Company's Confidential Information and Client
Records, and the difficulty or impossibility of replacing them if they are
disclosed, taken or misused for any reason, as well as the potential legal
liability, the Company seeks by this Agreement to protect the Company's
Confidential Information and Client Records, and any other confidential
information the Independent Contractor acquires as a result of the Independent
Contractor's employment with the Company. The Independent Contractor recognizes
and respects the value of the Company's Confidential Information, Client Records
and of the business relationships which exist between the Company and its
existing and prospective clients.
The Independent Contractor recognizes and respects the reasons the Company
wishes to preserve its ownership of its ideas, concepts, processes,
improvements, and applications and the value of the Company's Confidential
Information and Client Records. The Independent Contractor understands the
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Company's offer to contract with the Independent Contractor and willingness to
continue to refer work to the Independent Contractor are conditioned on the
Independent Contractor's good faith agreement to comply with the spirit and
terms of this Agreement.
Therefore, in consideration of the Parties' rights and obligations set out
below, the Parties hereby agree as follows:
AGREEMENTS
1. Term.
1. Unless terminated by either Party, the period during which the
Independent Contractor may provide services to the Company under this
Agreement will run from the effective date of 11 May 2008 and will
continue for a period of 12 months. Either Party may terminate this
agreement before the termination date for any reason or for no reason
by giving the other Party at least 30 days prior written notice.
2. In addition, the Company may terminate this agreement immediately
without prior notice if any of the following occurs:
(1) If the Independent Contractor breaches any material provision of
this Agreement, including the recital provisions regarding
Confidential Information and Client Records;
(2) If the Independent Contractor commits an act of fraud,
dishonesty, or any other act of gross negligent, or willful
misconduct in providing services to the Company or to its
Clients;
(3) If any contract by the Company with any third party on which this
Agreement substantially depends is terminated or the Company is
unable for any other reason to provide services for the
party(ies) to that contract; or
(4) If any circumstance beyond the Company's control prevents it from
providing services or otherwise hinders, delays, or prevents the
Company from receiving income or increases its overhead to an
extent the company reasonably decides to reduce, modify, suspend
or cease its business.
3. The provisions in 1.2. above regarding the termination of this
Agreement apply to the period during which the Independent
Contractor may provide services to the Company under this
Agreement. In addition, our agreements regarding the Independent
Contractor's preservation and return of the Company's Confidential
Information and Client Records set forth in Paragraph 10 below
will continue in force indefinitely, both during and after the
time during which the Independent Contractor may provide services
to the Company.
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2. INDEPENDENT CONTRACTOR'S DUTIES.
The Independent Contractor will provide the Company with services consistent
with generally accepted industry standards for the services to be performed by
Independent Contractor's hereunder.
3. COMPENSATION AND EXPENSE REIMBURSEMENT.
For all services the Independent Contractor performs under this Agreement, the
Independent Contractor will be compensated at Independent Contractor's contract
rate schedule set forth on Exhibit B attached hereto (the Rate Schedule).
..Contractor shall submit monthly invoices covering all charges. Payments shall
be due within thirty (30) days after receipt of invoices. For payments which are
not received when due or which are not received in full after receipt of
invoices, late fees will be assessed at the rate of 2% of the amount outstanding
per month. In the event of a disputed amount concerning an invoice, Company
shall promptly pay all but the disputed portion of the invoice when due, the
Parties will diligently work to resolve the disputed portion. Upon resolution of
the disputed portion the amount agreed to by the Parties will be paid within ten
(10) days of the resolution date.
4. AGREEMENT TO PERFORM SERVICES AS AN INDEPENDENT CONTRACTOR.
As recognized in C.R.S. xx.xx. 8-40-202(2)(a) and 9-7-115(1)(c), we agree that
the Company will not:
1. Require the Independent Contractor to work exclusively for the
Company except the terms of the Employment Agreement between Epic
Energy Resources and R. Xxxx Xxxxxxxxxx executed on September 1, 2007
shall remain in effect and shall not be superseded by this agreement;
2. Establish a quality standard for the Independent Contractor, oversee
the actual work or instruct the Independent Contractor as to how the
work is to be performed, except the Parties agree as stated in
Paragraph 2 above that the Independent Contractor's services will be
consistent with generally accepted industry standards for the
Independent Contractor's customary services;
3. Pay the Independent Contractor a salary, but rather will pay only the
compensation stated in Paragraph 3 above;
4. Terminate the Independent Contractor's current services for
particular work that Independent Contractor accepts from the Company
except as provided in Subparagraph 1.2. above;
5. Provide more than minimal training for the Independent Contractor;
6. Provide tools or benefits to the Independent Contractor;
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7. Dictate the time of performance,except that a completion schedule may
be established through a written agreement mutually acceptable to both
Parties for particular work the Independent Contractor accepts from
the Company;
8. Pay the Independent Contractor individually if the Independent
Contractor is an individual; instead, the Company will make all
compensation checks payable to the trade or business name under which
the Independent Contractor does business; or
9. Combine its business operations in any way with the Independent
Contractor's business, but instead both Parties will maintain their
own operations as separate and distinct.
5. NO UNAUTHORIZED USE OF NAMES.
Consistent with the provisions of this paragraph, the Independent Contractor
agrees not to use the Company's name in any advertisement, promotion, business
card, etc. without the Company's prior written consent, which consent shall not
be unreasonably withheld. The Independent Contractor further agrees not to
advertise, promote or represent to any client, potential client, supplier or any
other third party that the Independent Contractor is the Company's employee or
agent. Instead, the Independent Contractor may represent only that the Parties
have an independent contractor relationship under which the independent
Contractor may from time to time be offered by and may accept from the Company
an opportunity to provide the Independent Contractor's customary services.
6. INSURANCE.
1. No Insurance Through the Company. The Company will not include the
Independent Contractor as an insured under any policy the Company has
for itself, including, without limitation, any liability, life,
collision, comprehensive, health, medical, workers' compensation or
unemployment compensation insurance policy.
2. Independent Contractor to Obtain, Maintain and Manage Workers'
Compensation and Unemployment Compensation Insurance for its
Employees. If applicable, the Independent Contractor must have in
place on the effective date of this Agreement and must maintain
during the term of this Agreement workers' compensation insurance
and unemployment compensation insurance covering each of the
Independent Contractor's employees who provides any services to
the Company or related to this Agreement (the Independent
Contractor's "Employees"). The Independent Contractor will be
solely responsible for managing, and, consistent with the
indemnification provision in Paragraph 8, below will be solely
liable for any damages or awards and will defend and indemnify the
Company with regard to, any occupational injury claim or
unemployment claim, appeal or related proceeding brought by or on
behalf of any Employee of the Independent Contractor. The
Independent Contractor must provide proof reasonably satisfactory
to the Company and its insurers that the Independent Contractor
has workers' compensation insurance and unemployment compensation
insurance policies in place providing the required coverage for
the Independent Contractor's Employees.
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7. NO WITHHOLDINGS OR BENEFITS.
1. As provided in C.R.S. xx.xx. 8-40-202(b)(IV) and 8-70-115(2), the
Independent Contractor expressly agrees that, as an independent
contractor, the Independent Contractor is not entitled to any employee
benefits from the Company, including, but not limited to, any employer
withholdings or liability for: taxes, FICA, Medicare or Medicaid;
medical or disability insurance; vacation or leave; pension;
unemployment insurance; or worker's compensation insurance
(collectively "Employee Benefits"). The Independent Contractor is
obligated to pay federal and state income tax on any moneys paid
pursuant to the Parties' contractual relationship.
2. To the maximum extent permitted by law, the Independent Contractor
waives all claims against the Company for any Employee Benefits; the
Independent Contractor will defend the Company from any claim and will
indemnify the Company against any liability for any Employee Benefits
for the Independent Contractor imposed on the Company; and the
Independent Contractor will reimburse the Company for any award,
judgment or fine against the Company based on the position the
Independent Contractor was ever the Company's employee, and all
attorney fees and cost the Company reasonably incurs defending itself
against any such liability.
8. INDEPENDENT CONTRACTOR'S DUTIES TO ITS EMPLOYEES.
In addition to the obligations regarding workers' compensation and unemployment
compensation insurance stated in Subparagraph 6.b. above, the Independent
Contractor will comply with all laws, regulations, municipal codes and
ordinances and other workplace requirements and standards applicable to the
Independent Contractor's Employees, including, without limitation, federal and
state laws governing wages and overtime, equal employment, safety and health,
employees' citizenship, withholdings, pensions, reports and record keeping.
9. INDEPENDENT CONTRACTOR'S QUALIFICATIONS.
On the effective date of this Agreement, and during the term of this Agreement,
the Independent Contractor will be fully qualified and will have all approvals
and registrations needed to perform its obligations under this Agreement. The
Independent Contractor will have and maintain all licenses, permits,
certificates and registrations needed to perform the Independent Contractor's
duties under this Agreement.
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10. PROPRIETARY RIGHTS, CONFIDENTIAL INFORMATION AND CLIENT RECORDS BELONG
SOLELY TO THE COMPANY.
1. The Company's Proprietary Rights, Confidential Information and Client
Records and all other confidential information and data relating to
the Company's business and Existing and Prospective Clients are the
Company's exclusive property, and the Independent Contractor
therefore agrees that:
(1) The Independent Contractor hereby assigns to the company all
right, title and interest in and to Proprietary Rights when the
Company specifically in writing executes a work order with the
Independent Contractor to develop intellectual property. Such
Proprietary Rights include, but are not limited to, patent
rights, trademark and trade dress rights, copyrights, trade
secrets, technology and other forms of intellectual property in
the Unites States and in foreign countries. At the Company's
expense and under the terms of this agreement, the Independent
Contractor shall perform reasonable work necessary (including,
but not limited to, providing full disclosures and signing all
necessary documents, to vest such right, title and interest in
the Company) and shall provide reasonable assistance to the
Company in maintaining and enforcing such Proprietary Rights.
When the Company specifically in writing executes a work order
with Independent Contractor to develop intellectual property
rights, the Independent Contractor shall require all employees,
consultants and others engaged by it on work for the Company to
enter into similar agreements pre-approved by the Company. When
the Company specifically in writing executes a work order with
Independent Contractor to develop intellectual property rights,
then all notes, calculations, data, reference materials,
sketches, drawings, memoranda, disks, documentation and records
of Independent Contractor in any way incorporating or reflecting
any of the Proprietary Rights or the confidential information of
the Company shall also belong to the Company.
(2) At all times while this Agreement is in effect, the Independent
Contractor shall use reasonable efforts to not disclose to any
third party (except as may be necessary to perform the services
hereunder), or use for its own benefit except as provided herein
the Company's Confidential Information, Client Records or any
other confidential information (collectively "Confidential
Information") the Independent Contractor acquires or has access
to because of Independent Contractor's work with Company under
this agreement, including any of the names, addresses, contact
people or other identifying information for any of the Company's
Existing or Prospective Clients that are clearly marked
"confidential" or "proprietary". Contractor shall use the same
degree of care to avoid publication or dissemination of such
Confidential Information as the Contractor employs with respect
to its own confidential information that it does not desire to
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have published or disseminated. If it should be necessary for
Company to initially disclose certain Confidential Information in
non-written form, Company shall confirm such disclosure in
writing within fourteen (14) days of such initial disclosure.
This section shall not restrict:
i. The use of Confidential Information obtained from a third
party who Contractor reasonably believed had the lawful
right to disclose such Confidential Information;
ii. The use of Confidential Information known by Contractor
or independently developed by Contractor without recourse
to the Confidential Information furnished hereunder;
iii. Confidential Information which now or hereafter becomes
available to the public through no fault of Contractor;
and
iv. Any disclosure of Confidential Information to which
parties agree in writing.
(3) On the Company's request or on termination of this Agreement,
the Independent Contractor will promptly return to Company all
Company property, specifically including all documents, disks
or other computer media or other materials in the Independent
Contractor's possession or control that contain any of the
Company's Confidential Information or Client Records;
(4) The Independent Contractor will promptly advise the company of
any unauthorized disclosure or use of the Company's
Confidential Information or Client Records by any person or
entity.
2. The Company's "Existing Clients" are all people and businesses
with which the Company does any business or provides any services
while this agreement is in effect. The Company's "Prospective
Clients" are all people and businesses the Company has identified
for itself and that are known or reasonably should be known to the
Independent Contractor as being sufficiently likely to use the
Company's services to warrant marketing efforts by the Company
within 12 months before or after the date this Agreement
terminates.
3. In the event that the Independent Contractor is required by a
judicial, administrative, or regulatory authority to produce any
Confidential Information or Client Records, the Independent
Contractor shall promptly provide written notice to the Company in
order to provide the Company an opportunity to take appropriate and
timely protective action if the Company so desires.
4. The Parties agree this provision is intended to express the Company's
rights and the independent Contractor's duties to the Company under
the Colorado Uniform Trade Secrets Act, C.R.S. xx.xx. 7-74-101 et
seq.
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12. CONFIDENTIALITY AGREEMENTS WITH THE INDEPENDENT CONTRACTOR'S EMPLOYEES.
The Independent Contractor will cause each of its Employees and agents who may
gain access to any of the Company's Confidential Information, Client Records or
clients to execute a confidentiality agreement reasonably acceptable to the
Company before disclosing any Confidential Information or Client Records to that
Employee or agent or permitting that Employee or agent to have access to any
Confidential Information, Client Records or clients of Company.
13. RELIEF THE COMPANY MAY SEEK.
The Independent Contractor further agrees that, if the Independent Contractor
violates Paragraphs 10 or 11 of this Agreement, it would be difficult to
determine losses attributable to lost confidential information and increased
competition. Accordingly, the Independent Contractor agrees that if the
Independent Contractor violates Paragraphs 10 or 11 of this Agreement, the
Company will be entitled to an Order for injunctive relief and/or for specific
performance, or their equivalent, from a court, including requirements that the
Independent Contractor take action or refrain from action to preserve the
secrecy of the Company's Confidential Information and Client Records and to
protect the Company from additional damages, and the Independent Contractor
agrees the Company does not need to post a bond to obtain an injunction and
waives its right to require such a bond. Nothing herein shall be construed as
prohibiting the Company from contemporaneously pursing any other remedies
available for such breach or threatened breach, including the recovery of
damages.
14. ASSIGNMENT OF RIGHTS OR OBLIGATIONS.
The Company may assign its rights under this Agreement to any other entity that
at any time may be owned or controlled directly or indirectly by the Company, or
any successor in interest or any other person or entity. The Independent
Contractor may not assign its rights and duties under this Agreement without the
prior written consent of the Company.
15. INDEMNIFICATION.
Each Party ("indemnifying Party") will indemnify the other Party and its
directors, officers, agents, employees, heirs, successors and permitted assigns
against any lawsuit, claim, liability, or expense (including reasonable attorney
fees, court costs and any judgment) which results from the acts or failures to
act by the indemnifying Party, including any alleged or proven misconduct or
neglect by the indemnifying Party or its agents or employees.
16. WAIVER OF CONSEQUENTIAL DAMAGES.
Whether due to breach of contract or warranty, tort (including negligence or
strict liability) or otherwise, neither party shall be liable to the other for
any special, incidental, consequential or indirect damages, including without
limitation, loss of use, loss of revenue, cost of replacement, cost of capital,
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lost production of products, liability to third parties for failure to deliver
products, loss of opportunity for business with third parties, claims of
customers or similar damages. This wavier of consequential damages shall apply
even where the remedies set forth in paragraph 17 ("Warranty") fails of its
essential purpose.
17. WARRANTY.
Contractor warrants that the services performed hereunder will be in accordance
with that degree of care and skill ordinarily exercised by members of the
engineering and energy industry profession rendering similar services under
similar circumstances and existing as of the date that such services are
performed. Contractor's sole liability to Company for any breach of warranty
shall be to correct the item of defective work, written notice of which must be
promptly give by Company to Contractor in writing after Company's discovery of
any defect and within one year fro the date that Contractor performs, delivers,
issues, or completes its work.
The only warranties made by Contractor are those expressly enumerated in this
provision. Any other statement of fact or description expressed in this
Agreement or any attachment thereto shall not be deemed to constitute a warrant
of the work or any part thereof. THE WARRANTIES SET FORTH IN THIS PROVISION ARE
EXLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES, WHETER STATUTORY, EXPRESS OR IMPIE
AND TO THE EXTENT THEY MAY BE FOUND TO APPLY, ALL WARRANTIES OF MERCHANTABILTY
AND FITNESS FOR PARTICULAR PURPOSE AND ALL WARRANTIES ARISING FROM COURSE OF
DEALING AND USAGE OF TRACE ARE EXPRESSLY DISCLAIMED AND EXCLUDED. The remedies
provide above are Company's sole remedies for any failure of Contractor to
comply with its obligations. Correction of any nonconformity in the manner and
for the period time provided herein shall constitute complete fulfillment of all
the liabilities of Contractor for defective or nonconforming services whether
the claims of the Company are based in contract, tort (including negligence or
strict liability) or otherwise with respect to or arising out of the work
performed hereunder.
18. LIMITATION OF LIABILITY AND EXCLUSIVITY OF REMEDIES.
Notwithstanding anything contained herein to the contrary, the remedies stated
in the Agreement are exclusive and in no event shall the aggregate and
cumulative liability of Contractor and its subcontractors and their respective
directors, officers, members, agents, and employees arising from or relating in
any way to the performance or breach under a Work Order issued pursuant to this
Agreement or anything done in connection therewith exceed the amount of the fee
actually paid under the applicable Work Order to Contractor and by its execution
hereof, Company, without more, hereby releases Contractor from any liability in
excess thereof. The foregoing shall apply regardless of whether liability arises
in contract, tort (including but not limited to negligence or strict liability),
warranty or otherwise. If Company desires Contractor to assume greater liability
or responsibility than that set forth herein, an additional price will be quoted
and must be paid to Contractor by Client.
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19. RESOLUTION OF DISPUTES.
To the maximum extent permitted by law, before a dispute or claim between us may
be brought in litigation, the Company has the option to mediate any dispute
between us that we cannot resolve ourselves, which includes any dispute about
whether our dispute should be mediated or any aspect of this Agreement, through
mediation by the Judicial Arbiter Group, Inc. We will each make reasonable
efforts in the mediation to resolve our dispute through a mutual agreement. If
the Independent Contractor files a lawsuit against or naming the Company, the
Company will have until the date its answer or other responsive pleading is due
in that lawsuit to the Independent Contractor that the Company will exercise its
mediation option. We will each bear our own attorney fees and costs in
mediation, and we will equally share the mediator's fees and expenses.
20. ENTIRE AGREEMENT; AMENDMENT; CHOICE OF LAW; INTERPRETATION; SEVERANCE
PROVISION.
1. This Agreement expresses our entire understanding about its subject
matter and is the only agreement, promise or understanding on which we
are relying in performing the duties this Agreement describes.
2. The only way this Agreement may be amended, changed or waived will be
through a written document we both sign.
3. This Agreement shall in all respects be governed by and construed in
accordance with the laws of the State of Colorado, including with
respect to all matters of construction, validity and performance,
without giving effect to any choice of law rules thereof that may
direct the application of the laws of another jurisdiction.
4. No part of this Agreement should be construed against either Party on
the basis of authorship.
5. Any unenforceable provision of this Agreement will be modified to the
extent necessary to make it enforceable or, if that is not possible,
will be severed from this Agreement, and the remainder of this
Agreement will be enforced to the fullest extent possible.
21. INCORPORATION OF CONTRACT DOCUMENTS AND ORDER OF PRECEDENCE.
The following contract documents are incorporated by reference:
Exhibit A - Work Order. In the event of any conflict between this Contract and
any exhibit hereto, the terms and provisions of this Contract, as amended from
time to time, shall control.
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IN WITNESS OF OUR AGREEMENTS, the Company and the Independent Contractor
have executed this Agreement on the date(s) indicated below:
COMPANY: INDEPENDENT CONTRACTOR:
Pearl Investment Company Xxxxxxxxxx Consulting, LLC
/s/ Xxx Xxxxx /s/ R. Xxxx Xxxxxxxxxx
--------------------------------- ------------------------------
Signature Signature
Xxx Xxxxx R. Xxxx Xxxxxxxxxx
--------------------------------- ------------------------------
Printed Name Printed Name
Title: CEO Title: Member
----------------------- ----------------------
Date: May 8, 2008 Date: May 8, 2008
----------------------- ----------------------
XX Xxx 000
Xxxxxxxx, XX 00000 Address:
X.X. Xxx 00X0
----------------------------
Xxxxxxxx, XX 00000
----------------------------
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EXHIBIT A
WORK ORDER
Work Order Number ---------------------------
Independent Contractor Agreement Number CA 10-YYYYMMDD
Contractor XYZ Co.
Project Title
---------------------------
Commencement Date of Work Order September 17, 2007
Anticipated Completion Date
---------------------------
Point of Contact
---------------------------
Cost Estimate for work requested in
this Work Order ---------------------------
Estimated project cost is _________________ Hrs
$_____.00/hour
Scope of Work:
Authority:
Miscellaneous or additional information:
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EXHIBIT B
RATE SCHEDULE
Company shall pay Contractor a retainer equal to US$30,000.00 per 3 month
quarter for service performed by Contractor under this Independent Contractor
Agreement up to 150 hours for such 3 month period for the labor costs plus the
other services and expenses as outlined in the below rate schedule. For services
by Contractor performed under this Independent Contractor Agreement in excess of
150 hours for each 3 month quarter beginning 11 May 2008, Company shall
compensate Contractor in accordance with the "Principal" billing rate below plus
other services and expenses as outlined in the below rate schedule.
Billing Class(2) Billing Rate ($/hr)
Principal US $ 250.00/hr
Administrative and Clerical US$ 50.00/hr
4x4 Truck $1.08/mile
ATV $75.00/day
ATV Trailer $50/day
Flatbed Trailer $100/day
Travel Expenses(1) Cost + 10%
Subcontract/Materials Cost +10%
Per Diem Per location specified in work order
Miscellaneous Itemized Expenses(3) Cost + 10%
Notes:
1. Travel expenses shall include, but not be limited to, reasonable and
documented expenses incurred during travel such as air travel, local
transportation, lodging, meals, and miscellaneous expenses (tips, parking,
etc.). Air travel may be by Pearl Aviation Charter (billed directly to Pearl and
therefore not invoiced by Contractor), 3rd Party Charter, or Commercial as
approved by Company in writing, including but not limited to email
correspondence. Commercial air travel shall be business class (or first class if
business is not available at the times requested by Company) for all
international flights or domestic flight of a duration greater than 4 hours and
coach class for flights in North America. Company shall pay Contractor
associated travel time between Contractor's home office and Company locations.
Lodging shall be of five (5) star international standards. . Company shall
provide any documentation and pay any fees necessary for visas, transit passes
or work permits that may be required by any country other than the United States
of America.
2. Company shall bear the responsibility for paying or obtaining an
exemption or exception for income taxes imposed on Contractor by any government
other than that of the United States of America or State and local governments
within the United States of America arising from compensation paid to Contractor
for work performed under this Independent Contractor Agreement.
3. Miscellaneous Itemized Expenses shall include, but not be limited to the
following: reproduction (only applies to reproduction cost for large projects
performed by 3rd parties), express mail, international telephone calls, 3rd
party telephone conferencing services, 3rd party internet conferencing services,
and literature searches.
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