EXHIBIT 10.19
XXXXXXXX XXXX GROUP, INC.
PROFESSIONAL SERVICES AGREEMENT
This Professional Services Agreement (the "Agreement") is between Xxxxxxxx Xxxx
Group, Inc. ("XXXXXXXX XXXX"), with its principal place of business at 0000
Xxxxx Xxxxxx, Xxxxx 000, Xxxxxxx, Xxxxxxxx 00000, and Centennial Specialty
Foods Corporation (legal name) with its principal place of business
at 000 Xxxxxxxxx Xxxxxxx, Xxxxx 000, Xxxxxxxxx, XX 00000 ("Client").
1. SERVICES
XXXXXXXX XXXX will provide to client the Services specified on a
Statement of Work, under the terms of this Agreement.
2. DEFINITIONS
2.1 "Statement of Work" shall mean a proposal or other document
describing the Services and shall specify the Services and applicable
compensation. Each Statement of Work shall be governed by the terms of this
Agreement and shall reference the Effective Date specified below. The initial
Statement of Work is attached to this Agreement.
2.2 "Services" shall mean work performed by XXXXXXXX XXXX
pursuant to a Statement of Work agreed to by the parties under this Agreement.
The schedule for Services agreed upon by the parties will be set forth in the
Statement of Work, and will be subject to both parties performing the tasks
allocated to them under the Statement of Work.
3. CHARGES, PAYMENT AND TAXES
3.1 Fees for Services
Services shall be provided on the compensation basis set
forth in the applicable Statement of Work, and may include
time and materials payments, milestone payments, contingent
compensation, or any other form of compensation agreed by
the parties.
3.2 Incidental Expenses
Client shall reimburse XXXXXXXX XXXX for reasonable travel,
communications and out-of-pocket expenses incurred in
conjunction with the Services.
3.3 Invoicing and Payment
XXXXXXXX XXXX will invoice Client monthly, unless otherwise
expressly specified in the applicable Statement of Work.
Charges shall be payable upon receipt and shall be deemed
overdue if they remain unpaid thereafter. Any amount payable
by Client hereunder which remains unpaid after the due date
shall be subject to late fees of 1.5% per month from the
due date until the amount is paid. Client shall issue a
purchase order, or alternative document acceptable to
XXXXXXXX XXXX, on or before commencement of Services under
the applicable Statement of Work.
3.4 Taxes
The charges do not include taxes. If XXXXXXXX XXXX is
required to pay any federal, state or local taxes based on
the Services provided under this Agreement, the taxes shall
be billed to and paid by Client; this shall not apply to
taxes based on XXXXXXXX XXXX'x income.
(W0742100 JLC)
4. TERM AND TERMINATION
4.1 TERM
This Agreement shall commence on its Effective Date. Either party may
terminate this Agreement at any time by providing the other party with
written notice. Any Statement of Work outstanding at the time of
termination shall continue to be governed by this Agreement as if it
had not been terminated.
4.2 TERMINATION FOR BREACH
A party may terminate a Statement of Work if the other party is in
material breach of the Statement of Work and has not cured the breach
within thirty (30) days of written notice specifying the breach.
Consent to extent the cure period shall not be unreasonably withheld,
so long as the breaching party has commenced efforts to cure during
the thirty-day notice period and pursues cure of the breach in good
faith.
4.3 EFFECT OF TERMINATION
The parties' rights and obligations under Section 3.3, 3.4 and 4.3 and
Article 5 and 6 shall survive termination of this Agreement and/or a
Statement of Work. Termination of this Agreement and/or a Statement of
Work shall not limit either party from pursuing any other remedies
available to it, including injunctive relief, nor shall termination
relieve Client of its obligations to pay all charges that accrued
prior to such termination.
5. WARRANTY, REMEDY AND LIMITATION OF LIABILITY
5.1 WARRANTY
XXXXXXXX XXXX warrants that the Services will be performed consistent
with generally accepted industry standards.
5.2 LIMITATIONS ON WARRANTY
Client must report any deficiencies in the Services to XXXXXXXX XXXX
in writing within sixty (60) days of completion of the Services in
order to receive any warranty remedies. THE WARRANTY HEREIN IS
EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES, WHETHER EXPRESS OR
IMPLIED, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR
FITNESS FOR A PARTICULAR PURPOSE.
5.3 EXCLUSIVE REMEDY
For any breach of the above warranty, Client's exclusive remedy, and
XXXXXXXX XXXX'x entire liability, shall be the reperformance of the
Services. If XXXXXXXX XXXX is unable to reperform the Services as
warranted, Client shall be entitled to recover the fees paid to
XXXXXXXX XXXX for the deficient Services.
5.4 LIMITATIONS OF LIABILITY
In no event shall either party be liable for any indirect, incidental,
special, or consequential damages, or damages for loss of profits,
revenue, data, or use, incurred by either party or any third party,
whether in an action in contract or tort, even if the other party or
any other person has been advised of the possibility of such damages.
XXXXXXXX XXXX'x liability for damages hereunder shall in no event
exceed the amount of fees paid by Client under the applicable
Statement of Work.
5.5 INSURANCE
XXXXXXXX XXXX agrees to carry business liability and advertising
liability insurance in amounts equal to the standard in the industry.
2
6. GENERAL
6.1 SUBCONTRACTING
XXXXXXXX XXXX shall be authorized to subcontract any of the
Services, but such subcontracting shall not relieve XXXXXXXX XXXX of
any of the responsibilities or obligations under this Agreement.
Subject to the limitations set forth in Article 5 above, XXXXXXXX
XXXX shall be and remain solely responsible to Client for the acts,
errors, omissions or neglect of any subcontractor's officers,
agents, and employees, each of whom shall, for this purpose be
deemed to be an agent of XXXXXXXX XXXX to the extent of the
subcontract.
6.2 NONDISCLOSURE
The parties may disclose to one another information that is
confidential ("Confidential Information"). Confidential Information
shall be limited to information clearly identified as confidential.
Confidential Information shall not include information which: (a) is
or becomes part of the public domain through no act or omission of
the other party: (b) was in the other party's lawful possession
prior to the disclosure and had not been obtained by the other party
either directly or indirectly from the disclosing party: (c) is
lawfully disclosed to the other party by a third party without
restriction on disclosure: (d) is independently developed by the
other party: or (e) is disclosed by the operation of law. The
parties agree to hold the other's Confidential Information in
confidence while the Services are being performed and for a period
of two years thereafter. The parties agree not to use the other's
Confidential Information for any purpose other than the performance
of Services under a Statement of Work.
6.3 OWNERSHIP AND USE OF WORK PRODUCT
Client shall own all right and title to any new works created
pursuant to a Statement of Work and to all intellectual property
embodied therein. XXXXXXXX XXXX shall execute any documents
reasonably requested by Client to evidence or effect such ownership.
Client acknowledges that XXXXXXXX XXXX owns a variety of
intellectual property relating to its creative processes, and that
all such rights are retained by XXXXXXXX XXXX.
6.4 EMPLOYEE SOLICITATION
During the term of this Agreement and for twelve (12) months
thereafter, Client agrees not to solicit for employment any employee
providing Services to Client on behalf of XXXXXXXX XXXX.
6.5 RELATIONSHIP BETWEEN THE PARTIES
XXXXXXXX XXXX is an independent contractor; nothing in this
Agreement shall be construed to create a partnership, joint venture,
or agency relationship between the parties. Each party will be
solely responsible for payment of all compensation owed to its
employees, as well as employment related taxes.
6.6 GOVERNING LAW
This Agreement, and all matters asking out of or relating to this
Agreement, shall be governed by the laws of the State of Colorado.
6.7 JURISDICTION
Any legal action or proceeding relating to this Agreement shall be
adjudicated in the District Court for the County of Boulder, State
of Colorado, or the United States District Court for the State of
Colorado. XXXXXXXX XXXX and Client agree to submit to the
jurisdiction of, and agree that venue is proper in, the aforesaid
courts in any such legal action or proceeding. The prevailing party
in any legal action or proceeding shall be entitled to recover its
reasonable attorney's fees and costs incurred, in addition to any
other damages.
6.8 NOTICE
All notices, including notices of address change, required to
be sent hereunder shall be in writing and shall be deemed to have been
given when mailed by first-class mail to the address listed in the
applicable Statement of Work (if to Client) or to the XXXXXXXX XXXX
address on the Statement of Work (if to XXXXXXXX XXXX).
6.9 SEVERABILITY
In the event any provision of this Agreement is held to be invalid or
unenforceable, the remaining provisions of this Agreement shall remain in
full force.
6.10 WAIVER
The waiver by either party of any default or breach of this Agreement shall
not constitute a waiver of any other or subsequent default or breach.
Except for actions for nonpayment or breach of either party's intellectual
property rights, no action, regardless of form, arising out of this
Agreement may be brought by either party more than one year after the cause
of action has accrued.
6.11 EXECUTION OF AGREEMENT
This Agreement shall be binding upon all parties hereto and their
respective heirs, executors, administrators, successors, and assigns.
6.12 ENTIRE AGREEMENT
This Agreement constitutes the complete agreement between the parties and
supersedes all previous and contemporaneous agreements, proposals, or
representations, written or oral, concerning the subject matter of this
Agreement. Neither this Agreement nor a Statement of Work may be modified
or amended except in writing signed by a duly authorized representative of
each party; no other act, document, usage, or custom shall be deemed to
amend or modify this Agreement or a Statement of Work. It is expressly
agreed that any terms and conditions of Client's purchase order shall be
superseded by the terms and conditions of this Agreement and the applicable
Statement of Work.
THE EFFECTIVE DATE OF THIS AGREEMENT SHALL BE AUGUST 28, 2003.
EXECUTED BY CLIENT: EXECUTED BY XXXXXXXX XXXX GROUP, INC.:
(ILLEGIBLE) /s/ Xxxxx Xxxxxxxx
---------------------------------- ------------------------------------
Authorized Signature Authorized Signature
Xxx Xxxxxxxx Xxxxx Xxxxxxxx
---------------------------------- ------------------------------------
Name Name
Chief Marketing Officer Managing Partner
---------------------------------- ------------------------------------
Title Title
STATEMENT OF WORK ATTACHED WILL BE FURNISHED TO THE SECURITIES AND EXCHANGE
COMMISSION ON REQUEST.
