Exhibit 10.11
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AGREEMENT FOR CONSULTING SERVICES
THIS AGREEMENT is made effective this 1st day of [**], ("Effective Date")
between Technology Providers, Inc., a Massachusetts corporation having its
principal place of business at 000 Xxxx Xxxx Xx., Xxxxx 0, Xxxxxxxxxxx, XX 00000
("Consultant") and edocs, Inc., a Delaware corporation having its principal
place of business at 000 Xxxxxxxxx Xx., Xxxxx Xxxx Xxxxxxxx 0, Xxxxxx, XX 00000
("Customer").
WHEREAS, the Customer wishes to engage the Consultant to provide software
development services on a fixed price basis, on a time and materials basis,
and/or on a retainer basis as hereinafter defined (collectively, the "Services")
and as detailed below and on Schedule A, attached hereto and incorporated
herein; and
WHEREAS, Consultant is willing to provide such Services in consideration
for the Customer's payment and performance of its obligations as provided
herein.
NOW, THEREFORE, the parties hereto, intending to be legally bound, hereby
agree as follows:
1. Consultant's Services
a. Retainer Basis Services
The Customer shall have the right to retain from Consultant a
dedicated set of engineering and project management resources for the
purposes of continuity on a project or set of projects ("Retainer
Basis Services"). The Retainer Basis Services terms are based on the
duration of the Agreement, the number of resources to be retained by
the Customer, and a minimum notice period as set forth in Section 6(b)
of this Agreement in the event that the Customer wishes to terminate
the Retainer Basis Services of Consultant.
Subject to Section 6(b) hereof, the minimum period for the Retainer
Basis Services shall be [**] ([**]) months from the Effective Date of
this Agreement ("Minimum Term"). During the Minimum Term, the monthly
Retainer Base Services rates will be as set forth in Schedule A, and
additional resources may be added to the group at the same rates for
each category of resource as identified in Schedule A. For any renewal
term after the Minimum Term, a rate increase may apply. Such rate
increase, however, will not be by more than [**] percent ([**]%) per
annum over the rates applicable in the previous year.
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[**] INDICATES MATERIAL THAT HAS BEEN OMITTED AND FOR WHICH CONFIDENTIAL
TREATMENT HAS BEEN REQUESTED. ALL SUCH OMITTED MATERIAL HAS BEEN FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 406 PROMULGATED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED.
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The Customer will provide the Consultant with a list of projects that
the Customer requests to be developed and/or maintained by the
dedicated resources for the Retainer Basis Services. In response, the
Consultant will provide the Customer with a proposed project plan that
includes but is not necessarily limited to a description of how the
resources may be deployed and details regarding the nature of the
services and deliverables with respect to the Retainer Basis Services.
The parties will work together and modify the project plan, if
necessary, in order to reach agreement on the final project plan. The
project plan may be modified from time to time by mutual agreement of
the parties provided that in the event the Customer seeks additional
Retainer Basis Services requiring additional resources, such resources
will be quantified by the Consultant and submitted to the Customer,
and the Customer may elect to increase the number of retained
resources to perform such additional Retainer Basis Services in
accordance with the rates set forth in Schedule A.
The Retainer Basis Services are ideal on long projects where the
learning curve associated with the technology does not warrant
displacing or changing personnel dedicated to the Customer under any
project and as such Consultant will preserve uninterrupted access and
resource continuity across projects in accordance with the terms of
paragraph 2(a) below.
b. Fixed Price Services
Customer shall have the right to acquire from time to time certain
specific Services to be performed on a fixed price basis under this
Agreement ("Fixed Price Services"). The Consultant will charge the
Customer a fixed price for Fixed Prices Services as mutually agreed to
by the parties in advance of commencement of the Fixed Prices
Services. For all Fixed Price Services, the Customer must provide the
requirements, the high level design, and the criteria upon which the
completed project will be accepted. The Consultant will review the
requirements, determine the scope of the effort, and provide a project
plan (which includes but is not necessarily limited to the details
regarding the nature of the services and deliverables, the resources
to be deployed and the timeline for completion) along with the fixed
cost schedule to the Customer. The parties will work together and
modify the project plan, if necessary, in order to reach agreement on
the final project plan. Such Fixed Price Services will not commence
until the parties have reached mutual agreement on such project plan
and cost schedule. The project plan (along with any resulting changes
in the fixed cost schedule) may be modified from time to time by
mutual agreement of the parties.
c. Time and Materials Services
Customer shall have the right to acquire from time to time certain
specific Services to be performed on a time and materials basis under
this Agreement ("Time and Materials Services"). The daily rate for
Time and Materials Services
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TREATMENT HAS BEEN REQUESTED. ALL SUCH OMITTED MATERIAL HAS BEEN FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 406 PROMULGATED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED.
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is set forth in Schedule A and such rate shall be in effect for the
Customer for the term of the Agreement. For any renewal term of the
Agreement, a rate increase may apply. Such rate increase, however,
will not be by more than [**] percent ([**]%) per annum over the rates
applicable in the previous year. For all Time and Materials Services,
the Customer must provide the requirements, the high level design,
and, to the extent Customer elects at the start of any particular Time
and Materials Services project to have acceptance criteria for the
deliverables thereunder, the criteria upon which the completed
projected will be accepted. The Consultant will review the
requirements, determine the scope of the effort, and provide a project
plan (which includes but is not necessarily limited to the details
regarding the nature of the services and deliverables, the resources
to be deployed and the timeline for completion) along with an
estimated cost schedule to the Customer. The parties will work
together and modify the project plan, if necessary, in order to reach
agreement on the final project plan. Such Time and Materials Services
will not commence until the parties have reached mutual agreement on
such project plan and estimated cost schedule. The project plan (along
with any resulting changes in the estimated cost schedule) may be
modified from time to time by mutual agreement of the parties.
2. consultants commitments
a. The Consultant will not reallocate resources providing the Services
without the prior consent of the Customer as long as the Customer has
contracted for such resources. Consultant may, if necessary, replace
such resources with resources of substantially similar background and
skill, subject to Customer's prior approval, which shall not be
unreasonably withheld.
b. The Consultant will provide local U.S.-based project management for
all Services.
c. The Consultant will provide weekly written status reports for the
Services that at a minimum include the following: date, name of
developer(s), description of activities engaged in for the prior week,
and status of the project responsibilities to which each such
developer is assigned.
d. The Consultant will update the [**] log system or such other tracking
system as the Customer may choose to implement (details to be added by
team) on a daily basis for all Services. Without limiting the
generality of the foregoing, the Consultant will provide the Customer
with all repository backups of all software and materials created by
Consultant under this Agreement on a [**] basis, or such other
frequency as may be mutually agreed between the parties.
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[**] INDICATES MATERIAL THAT HAS BEEN OMITTED AND FOR WHICH CONFIDENTIAL
TREATMENT HAS BEEN REQUESTED. ALL SUCH OMITTED MATERIAL HAS BEEN FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 406 PROMULGATED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED.
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e. For all Services, the Consultant will make available on a shared
source basis all source code, such that the latest source code is
always available to Customer's development staff, in accordance with
the system implemented by the Customer and Consultant.
f. For all Services, the Consultant will meet agreed upon deadlines,
unless delays are caused by the Customer's change to the scope of a
project, the Customer's change to the priorities of a project or
unless such delay falls under the provisions of Section 22 hereof
(provided however that in any of these cases the parties will mutually
agree to revised deadlines).
g. The Consultant will equip each of its personnel performing Services
hereunder with his or her own personal computer and the Microsoft
suite of software, including without limitation, Microsoft development
tools, required to develop the software and perform the Services being
delivered hereunder.
3. customer's commitments
a. With respect to all Services, the Customer understands and agrees that
all of the Consultant's offshore resources as noted in the applicable
project plan (and in the case of Retainer Basis Services, Schedule A)
will work in Colombo, Sri Lanka, and will not be available to work at
the Customer's premises, except where specifically provided in
Schedule A as "US", Notwithstanding the foregoing, at the request of
Customer, Consultant shall provide for short term engagements which
typically last approximately [**] ([**]) to [**] ([**]) months, of
mutually agreed to Sri Lanka-based personnel of Consultant who will
travel to the U.S. to undertake specific activities as such activities
are mutually agreed to by the parties, including, but not limited to,
training, knowledge transfer, provision of support for special
releases, and the like ("Local Services"). With respect to Retainer
Basis Services, the incremental increase in the Retainer Basis
Services rate for Local Services provided by the Sri Lanka-based
resources shall be as set forth under the heading "Cost of Living
Adjustment for Local Services for Retainer Basis Services" on Schedule
A. With respect to Time and Materials Services, the incremental
increase in the Time and Materials daily rate for Local Services
provided by the Sri Lanka-based resources shall be as set forth under
the heading "Cost of Living Adjustment for Local Services for Offshore
Personnel Time and Materials Services" on Schedule A. The Customer
shall incur no other costs for utilizing Local Services other than
reimbursement for the travel expenses
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[**] INDICATES MATERIAL THAT HAS BEEN OMITTED AND FOR WHICH CONFIDENTIAL
TREATMENT HAS BEEN REQUESTED. ALL SUCH OMITTED MATERIAL HAS BEEN FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 406 PROMULGATED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED.
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from Sri Lanka to the US and back of individuals agreed to by the
parties who are providing such Local Services in accordance with
Section 5(d) hereof and out-of-pocket travel, living and lodging
expenses incurred by such personnel for preapproved travel within the
US in accordance with the terms of Section 5(d) below.
b. The Customer shall notify Consultant of any changes in management at
the vice president level or above, and of mergers or acquisitions that
have a material impact on the relationship between the Consultant and
the Customer which are not of a confidential nature within a
reasonable time after the occurrence thereof Thirty days after the
occurrence of such event is considered reasonable.
c. Customer shall be responsible for providing the following:
i) timely and accurate information as reasonably required by
Consultant to fulfill its responsibilities under this
Agreement; and
ii) timely access to appropriate Customer personnel; and
iii) if needed, timely computer access to Customer's computers in
the areas determined by Customer to be necessary to enable
Consultant to perform the Services hereunder (via
communications and onsite, as appropriate), and a dedicated
test environment therein for Consultant's developmental use;
and
iv) timely and accurate definition of test data files and timely
delivery of a static copy of the test data files to serve as a
standard to determine performance of Consultant under this
Agreement. The test data files are not to be changed by
Customer so long as Consultant has development or maintenance
responsibilities under this Agreement; and
v) timely and accurate creation of any new data sets requested by
Consultant as being needed for development or testing, such
data sets then to be changed only as approved by Consultant;
and
vi) timely and accurate definitions of Customer programs to the
extent that Consultant's use or connection is required for
development and testing; and
vii) any appropriate hardware and software (e.g., compilers and
third party tools) that are identified by mutual agreement of
the parties under the project plan to be loaned, such loan to
continue so long as Consultant has any development or
maintenance responsibilities under this Agreement (or, if
earlier, upon request of Customer) on such terms as the parties
mutually agree to in writing in advance of such loan (or
alternatively,
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[**] INDICATES MATERIAL THAT HAS BEEN OMITTED AND FOR WHICH CONFIDENTIAL
TREATMENT HAS BEEN REQUESTED. ALL SUCH OMITTED MATERIAL HAS BEEN FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 406 PROMULGATED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED.
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reimbursement by Customer of the costs incurred by Consultant
in obtaining appropriate hardware and software directly on such
terms as the parties mutually agree to in writing in advance of
such acquisition by Consultant) provided however that in either
such case Consultant shall comply with the terms and conditions
of all hardware agreements and software licenses applicable to
such hardware and software (such hardware and software being
referred to herein as the "Third Party Equipment"); and
viii) pursuant to the terms of Section 4(c) of this Agreement, prompt
provision of all approvals and/or acceptances of the Services
or portions thereof as are requested by Consultant in
accordance with the applicable project plan or prompt
notification to Consultant in writing of any deficiencies which
result in failure to approve or accept any Services in
sufficient detail to enable Consultant to make any necessary
changes or develop any appropriate workaround and re-submit for
approval or acceptance; and
ix) maintenance, licenses, shipping, installation or deinstallation
charges (or reimbursement thereof, as applicable) related to
the Third Party Equipment, subject to the terms of Section
3(c)(vii) above and on such terms as the parties mutually agree
to in writing in advance.
d. If at any time with respect to Fixed Price Services only Customer
fails to fulfill Customer's responsibilities in a timely and accurate
manner in Consultant's reasonable judgment, Consultant reserves the
right to notify Customer, stop work and re-negotiate the price and/or
terms of performance for such Fixed Priced Services and, if no
agreement is reached within a period of [**] ([**]) weeks, to xxxx
Customer, on a time and materials basis for Consultant's software
efforts to date, but such billing shall not exceed the total amount
that would have otherwise been payable under the Fixed Price Services
model pro rated for work that has occurred and been accepted by
Customer in accordance with the terms of Section 4(c) of this
Agreement prior to such notification by Consultant under this
paragraph. By way of example, if the Fixed Prices Services total cost
is $[**] and [**]% of the work for the Fixed Price Services had been
accepted on the date of such notice then the time and material charges
referred to above may not exceed $[**] less any payments previously
made by Customer to Consultant related to such Fixed Price Services.
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[**] INDICATES MATERIAL THAT HAS BEEN OMITTED AND FOR WHICH CONFIDENTIAL
TREATMENT HAS BEEN REQUESTED. ALL SUCH OMITTED MATERIAL HAS BEEN FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 406 PROMULGATED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED.
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4. delivery, testing and acceptance
a. timely implementation
Customer and Consultant acknowledge that the cooperation of both
parties is necessary for timely performance of the Services
contemplated hereunder.
b. Delivery of the Software
The software work product furnished by Consultant under this Agreement
in connection with performance of the Services will be furnished in
commented source code form. Consultant shall also provide or make
available all object code, executable code, and all related design
documentation to the software (all such source code, object code,
executable code and related design documentation referred to
collectively as the "Software") in accordance with the Customer's
system for transferring, storing, and sharing information related to
the Software.
c. Software Acceptance
With respect to Fixed Price Services and Time and Materials Services
in which the parties mutually agree to acceptance criteria, upon
completion of its development of the Software, or any portion thereof,
as determined by Customer, Consultant will make such Software
available to Customer in accordance with Sections 2(e) and 4(b) hereof
and Customer will verify that such Software meets the Acceptance
Criteria as defined below. The Software will be deemed accepted by
Customer (the "Acceptance Date") when Customer notifies Consultant
that the Software has successfully satisfied the acceptance criteria
on the test files and data sets all as established by Consultant and
approved by Customer prior to testing ("Acceptance Criteria"). In the
event that Customer determines that there are any deficiencies in the
Software meeting such Acceptance Criteria then Consultant will
promptly correct such deficiencies at no charge to Customer at which
point Customer will retest the Software, such process to be repeated
until such time as the Acceptance Criteria are met. Such Acceptance
Criteria may be modified from time to time by Customer with
Consultant's consent, which shall not be unreasonably withheld. Use
of a portion of the Software subject to an acceptance test in
productive use shall constitute acceptance of that portion.
d. Modifications
To the extent that Customer makes any modifications or error
corrections to the Software Customer shall utilize Customer's log
system for such modifications and error corrections. Consultant shall
have access to such system for so long as Consultant has any
development or maintenance responsibilities under this Agreement.
Consultant shall be responsible for maintaining Customer-modified
portions of the Software. With respect to Fixed Price Services,
efforts to correct or diagnose difficulties or defects traceable to
Customer's modifications or error corrections to the Software not
specifically approved by Consultant in writing will be billed
separately at the time and materials rates set forth on Exhibit A.
The parties shall cooperate in the modification of the Software as
described in this
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[**] INDICATES MATERIAL THAT HAS BEEN OMITTED AND FOR WHICH CONFIDENTIAL
TREATMENT HAS BEEN REQUESTED. ALL SUCH OMITTED MATERIAL HAS BEEN FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 406 PROMULGATED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED.
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paragraph and the correction of any errors, defects or Software
problems during the term of this Agreement with respect to Software
developed under the Retainer Basis Services and Time and Materials
Services models and Consultant will upon request of Customer make such
modifications and corrections of any errors, defects or Software
problems during the term of this Agreement with respect thereto.
5. Compensation; Payment; Reimbursements
a. In exchange for the full, prompt and satisfactory performance of
Services by Consultant, Customer shall compensate Consultant at the
rates set forth in Schedule A for Retainer Basis Services and Time and
Materials Services and per mutual agreement of the parties for Fixed
Price Services (based upon the Time and Materials Services rates set
forth on Schedule A), all as referenced in Section 1 above.
b. At the end of each calendar month Consultant will submit invoices for
Retainer Basis Services and Time and Materials Services performed
during that calendar month to Customer. All payments shall be made in
U.S. Dollars within [**] ([**]) days of the date of receipt of
invoice. Fixed Price Services will be invoiced and paid in accordance
with the terms mutually agreed to by the parties in writing in advance
of each such engagement. Consultant reserves the right to add a late
charge not exceeding [**] percent ([**]%) per month, or fraction
thereof, for Customer's failure to make a payment within [**] ([**])
days of the date of receipt of invoice.
c. Customer shall pay all applicable sales, use and other taxes, except
for taxes based on Consultant's income, along with duties and customs
charges imposed on the sale or purchase of Services. If a certificate
of exemption or similar document or proceeding is to be made in order
to exempt the sale from sales or use tax liability, the Customer will
obtain and pursue such certificate, document or proceeding.
d. Except as specifically noted below in this paragraph, Customer shall
reimburse Consultant for all out-of-pocket travel, lodging and living
expenses incurred by Consultant in performing its responsibilities
under this Agreement, provided such expenses are reasonable, are pre-
approved by Customer and are in accordance with Customer's then-
current travel and expense policy. Notwithstanding the foregoing, with
respect to Consultant's personnel performing Local Services there will
be travel reimbursements for travel from Sri Lanka to the US and back
only in accordance with the above (and no lodging and living expense
reimbursements, as these costs are included in the "Cost of Living
Adjustment" set forth on Schedule A for Local Services for the
applicable category of Services being provided by such personnel,
other than out-of-
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pocket travel, living and lodging expenses incurred by such personnel
for pre-approved travel within the US in accordance with the terms of
this Section 5(d).
6. Term: Termination
a. The term of this Agreement shall be for [**] ([**]) years commencing
on the 1st day of [**] and ending on the [**] day of [**], subject to
earlier termination in accordance with the terms of this Section 6.
b. Notwithstanding anything else in this Agreement to the contrary,
Customer may terminate this Agreement or any Services being provided
hereunder at any time upon [**] days notice to Consultant subject to
the following exceptions with respect to Retainer Basis Services being
terminated during the Minimum Term by Customer and subject to the
termination rights of the parties under Section 6(c):
Total Monthly Fee for Retainer Basis Services after Notice Required to Terminate
reduction for Monthly Retainer Basis Services Fees Applicable Retainer Basis
Relating to Current Termination and previous terminations Services
("Remaining Monthly Fee" )*
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$[**] [**] days
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$[**] [**] Months
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$[**] [**] Months
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$[**] [**] Months
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* To the extent that termination of a particular person causes the
total monthly fee for Retainer Basis Services to reduce from one
dollar threshold category set forth above to the next, the notice
period for such person shall fall into the higher dollar threshold
category set forth above.
The Consultant, therefore, will be entitled to continue to xxxx and
receive payment from the Customer for the monthly retainer fee set
forth in Schedule A for the Retainer Basis Services (less any
reductions resulting from previous terminations of Retainer Basis
Services) for a period equal to the number of months corresponding to
the applicable notice period set forth in the above table (the
"Applicable Notice Period") after the first of the month in which
Customer gives Consultant notice of such termination in accordance
with the terms of this Agreement. Notwithstanding the previous
provisions of this Section 6(b) relating to Retainer Basis Services,
in the event that Customer terminates Retainer Basis Services on more
than one occasion during a [**] day period (which [**] day period
commences on the first such termination), then the Applicable Notice
Period corresponding to the Remaining Monthly Fee at the end of such
[**] day
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[**] INDICATES MATERIAL THAT HAS BEEN OMITTED AND FOR WHICH CONFIDENTIAL
TREATMENT HAS BEEN REQUESTED. ALL SUCH OMITTED MATERIAL HAS BEEN FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 406 PROMULGATED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED.
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period shall apply to all terminations during that [**]-day period. A
new [**] day period shall commence upon the day of the first
termination of Retainer Basis Services which occurs after the end of
the previous [**] day period. (By way of example under the previous
two sentences, if the First termination of Retainer Basis Services
occurs on [**] resulting in a Reduced Monthly Fee of $[**] and thus a
corresponding Applicable Notice Period for such first termination of
[**] months and the second termination of Retainer Basis Services
occurs on [**] resulting in a Reduced Monthly Fee of $[**] and thus a
corresponding Applicable Notice Period for such second termination of
[**] months, since both terminations occurred within the [**] day
period after [**] (the First termination date) then the Applicable
Notice Period for both terminations is [**] months. If the next
termination occurs on [**] then the next [**] day period commences on
[**].) Such Customer payments will be made irrespective of whether the
Customer is using the Consultant's Retainer Basis Services; provided
however, during such Applicable Notice Period the Customer shall have
the right to continue receiving the Retainer Basis Services in
accordance with the terms of this Agreement provided further however
that Customer may modify the project plan with the consent of
Consultant, which consent will not be unreasonably withheld, in order
to make best use of the resources which modification may include
reallocating the category of resources to be used under the Retainer
Basis Services. Furthermore, notwithstanding anything else in this
Agreement to the contrary, Customer may elect to change the category
of Retainer Basis Services personnel (and thus the related monthly
fees) which it utilizes upon [**] days notice to Consultant and
Consultant shall make such changes within such [**] day period
provided however that if Consultant is able to make such change in
less than such [**] day period then the appropriate rates for such new
category of Retainer Basis Services shall be effective on the date of
such change.
c. Customer may terminate the Agreement for breach by Consultant of the
terms of Sections 8, 9 or 11 hereof, misappropriation by Customer of
any intellectual property of Consultant, misappropriation by Customer
of any Customer supplied hardware, software or other items provided by
Customer to Consultant hereunder or breach by Consultant of any terms
of the software license or hardware agreements relating to such
Customer supplied hardware or software, failure by Consultant to
provide the requisite number of personnel resources and/or the
requisite category of personnel resource under the Retainer Basis
Services as set forth in Schedule A (as it may be amended by the
parties from time to time), failure to promptly replace personnel
whose work is of poor quality as determined by Customer acting in a
commercially reasonable manner and failure of Consultant to attempt to
perform its duties hereunder in a professional workmanlike manner,
provided in all such events Customer has given Consultant notice of
such breach and there has been a failure to cure such breach within
[**] ([**]) days after receipt of
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TREATMENT HAS BEEN REQUESTED. ALL SUCH OMITTED MATERIAL HAS BEEN FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 406 PROMULGATED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED.
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such notice. Consultant may terminate the Agreement for breach by
Consultant of its indemnification obligations under Section 11(b)
hereof. The provisions of Section 6(b) do not apply with respect to
terminations pursuant to this Section 6(c).
d. In the event of any termination, Customer shall pay Consultant for all
Services actually performed through the date of termination and shall
reimburse Consultant for all previously approved travel, living and
lodging expenses and Cost of Living Adjustments actually incurred and
otherwise due hereunder by Consultant through the date of termination
provided however that with respect to Fixed Price Services the
determination of fees due for Services actually performed shall be as
mutually agreed to by the parties in writing in advance of each such
engagement.
e. All deliverables produced hereunder (the "Work Product") (whether or
not complete), including without limitation, Software and
documentation, records, data, documents and other written and
electronic materials related to any of the foregoing items, created by
Consultant and all items coming into Consultant's possession during
the term of this Agreement, including without limitation, the
Confidential Information of Customer and all equipment, software, or
other materials on loan to Consultant by the Customer under this
Agreement or for which Customer has provided Consultant reimbursement
hereunder, shall be the sole and exclusive property of the Customer
and shall be delivered promptly to the Customer, together with all
copies thereof, upon termination or expiration of this Agreement or
upon the request of the Customer.
7. independent contractor
It is expressly understood and agreed that during the term of this
Agreement, Consultant's relationship to Customer shall be that of an independent
contractor and that neither this Agreement nor the Services to be rendered
hereunder shall for any purpose whatsoever or in any way or manner create any
employer-employee relationship. Accordingly, Consultant acknowledges that it
has no right to participate in any Customer benefit programs or to receive any
Customer benefits. Consultant shall have sole and exclusive responsibility for
the payment of all federal, state and local income taxes, for all worker's
compensation, employment and disability insurance and for social security and
other similar taxes with respect to any Services provided by Consultant
hereunder. Consultant shall assume and accept all responsibilities which are
imposed on independent contractors by any federal, state or local law, statute,
regulation, rule, ordinance or otherwise. Consultant is not authorized to bind
Customer or to incur any obligation or liability on behalf of Customer except as
expressly authorized by Customer in writing.
8. Restrictions on Disclosure of Proprietary Information
Customer confirms its agreement to continue to abide by the terms and
conditions of the Confidentiality Agreement between the parties, a copy of which
is attached hereto and incorporated herein as Schedule B. Customer shall ensure
that all of its employees and permitted Subcontractors (as defined in Schedule
B) abide by the terms and conditions of this Section 8 per the terms of the
attached Confidentiality Agreement.
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TREATMENT HAS BEEN REQUESTED. ALL SUCH OMITTED MATERIAL HAS BEEN FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 406 PROMULGATED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED.
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9. Proprietary Rights in the Software
a. As between Customer and Consultant, all right, title, and interest
including copyright interests and any other intellectual property, in
and to the Work Product and Inventions (as defined below), including
but not limited to Software (as defined above), data, templates or
materials produced or provided by Consultant hereunder shall be the
property of Customer. The Work Product shall be deemed a "work made
for hire" under the copyright laws of the United States. Consultant
hereby expressly and irrevocably assigns to Customer all of
Consultant's rights, title and interest in and to the Work Product and
Inventions identified herein. Consultant shall execute or cause to be
executed any documents as may be necessary and take such other action
as may be necessary to vest full title and ownership in Customer of
any Work Product and Inventions. Notwithstanding Customer's ownership
of the Work Product and Inventions as described above, Consultant
shall be free to use for Consultant's business purposes any general
and non-tangible ideas, concepts and techniques of general utility
utilized in the Software, provided however that in no event shall the
Software be used by Consultant or disclosed by Consultant to any third
party.
Consultant agrees that it will promptly disclose to Customer all
designs, processes, formulae, technologies, know-how, intellectual
property, systems, trade secrets, inventions, discoveries, copyrights,
improvements and patent or patent rights conceived, reduced to
practice, devised or developed in connection with the Work Product or
otherwise arising or resulting from this Agreement or any previous
agreement between the parties ("Inventions") upon their discovery or
invention by Consultant, its employees, agents or representatives and,
in any event, upon the request of the Customer. Consultant agrees to
render to the Customer all such assistance as the Customer may require
in the prosecution or defense of all interferences which may be
declared involving any of said Inventions. The Customer agrees to pay
all reasonable fees and expenses incurred by Consultant for any
assistance rendered to the Customer pursuant to this Section.
b. Consultant agrees that if Customer is unable because of Consultant's
unavailability, dissolution, or for any other reason, to secure the
signature of an authorized agent of Consultant to apply for or to
pursue any application for any United States or foreign patents, mask
work, copyright or trademark registrations covering the assignment to
Customer above, then Consultant hereby irrevocably designates and
appoints Customer and its duly authorized officers and agents as
Consultant's agent and attorney in fact, to act for and in
Consultant's behalf and stead to execute and file any such
applications and to do all other lawfully permitted acts to further
the prosecution and issuance of patents, copyright, mask work and
trademark registrations thereon with the same legal force and effect
as if executed by an authorized agent of Consultant.
__________________
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TREATMENT HAS BEEN REQUESTED. ALL SUCH OMITTED MATERIAL HAS BEEN FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 406 PROMULGATED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED.
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c. Consultant represents and warrants that it has full and sufficient
right and authority to perform its obligations under this Agreement
and the performance hereunder by Consultant is not in conflict with
any agreement of Consultant or any law by which Consultant is bound.
Consultant represents, warrants and covenants that in performing its
services and obligations under this Agreement, Consultant shall not
infringe any intellectual property or other proprietary right of any
third party.
10. Software Warranty and Disclaimer
a. With respect to Fixed Price Services and Time and Materials Services
in which the parties mutually agree to acceptance criteria, for [**]
([**]) days following the Acceptance Date of the Software as described
in Section 4(c) above, Consultant warrants that the Software will
comply with the Acceptance Criteria and Consultant will at its sole
cost design, code, checkout, document and deliver promptly any
amendments or alterations to the Software that may be required to
cause the Software to meet the Acceptance Criteria on the applicable
test files and data sets. This warranty is contingent upon Customer
advising Consultant in writing of such errors within [**] ([**]) days
from the Acceptance Date and by providing Consultant with sufficient
information to replicate the error and provide the correction thereof
or provide a suitable workaround. This warranty does not apply to
problems that occur in relation to any modification to the Acceptance
Criteria that is introduced after Acceptance Date of the Software
other than modifications introduced to attempt to cause the Software
to meet the Acceptance Criteria.
b. Customer acknowledges that the Software is to be partially integrated
with Customer's own software and that Consultant is responsible for
providing maintenance for any failure of the Software attributable
directly or indirectly to capacity, inconsistency or any other
problems with Customer's software.
c. EXCEPT FOR THE WARRANTIES PROVIDED BY CONSULTANT UNDER 9(c), AND 10(a)
ABOVE AND CONSULTANT'S WARRANTY REGARDING YEAR 2000 COMPLIANCE IN
SECTION 20 BELOW, EACH PARTY DISCLAIMS ALL WARRANTIES WITH REGARD TO
THE SOFTWARE AND SERVICES PROVIDED HEREUNDER, INCLUDING ALL IMPLIED
WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
__________________
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TREATMENT HAS BEEN REQUESTED. ALL SUCH OMITTED MATERIAL HAS BEEN FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 406 PROMULGATED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED.
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11. Indemnities
a. Consultant shall defend Customer immediately and indemnify and hold
harmless Customer and its customer and business partners from and
against any and all suits, actions, damages, costs, losses, expenses
(including reasonable attorney's fees) and other liabilities resulting
from any third party's claims (or any settlement agreed to by
Consultant in favor of such third party resulting from such third
party's claims) alleging that the Work Product or any Invention
infringes any of the following of such third party; (i) patent, (it)
trademark, (iii) copyright or (iv) trade secret. Should the Work
Product or any Invention become, or in Consultant's opinion be likely
to become, the subject of a claim of infringement. Consultant shall,
at Consultant's option, (a) obtain for Customer the right to continue
using the Work Product or any Invention pursuant to the terms and
conditions of this Agreement; or (b) replace or modify, at no cost to
Customer, the Work Product or any Invention so that it becomes non-
infringing but functionally equivalent. Such indemnification
obligation shall not apply to any claim based on or arising from (A)
software not claimed to be developed by or on behalf of Consultant,
(B) the combination of the Work Product with other products not
claimed to be owned or developed by or on behalf of Consultant and not
designed or intended to operate with the Work Product, provided the
infringement arises in connection with the combination, (C) the
failure of Customer or an end user to use updated or corrected Work
Product provided by Consultant, or (D) the failure of Customer or an
end user to use the Work Product for its intended purposes. Customer
shall give prompt written notice to Consultant of any claim under this
paragraph and Consultant shall have the right to assume the defense of
such claim and select counsel. Consultant will have the right to
consent to the entry of judgment with respect to, or otherwise settle
such claim. Customer shall cooperate in the defense or prosecution of
such claim.
b. Customer shall defend Consultant immediately and indemnify and hold
harmless Consultant from and against direct damages actually awarded
against Consultant to a third party resulting from such third party's
claims (or any settlement for direct damages agreed to by Customer in
favor of such third party resulting from such third party's claims)
based on the inadequacy and inaccuracy of the Software for its
intended purpose which Customer licensed to such third party.
Consultant shall give prompt written notice to Customer of any claim
under this paragraph and Customer shall have the right to assume the
defense of such claim and select counsel. Customer will have the right
to consent to the entry, of judgment with respect to, or otherwise
settle such claim Consultant shall cooperate in the defense or
prosecution of such claim. The maximum aggregate liability of Customer
for all occurrences under this paragraph is $[**].
12. Limitation of Damages
TO THE EXTENT PERMITTED BY APPLICABLE LAW, EXCEPT FOR (A) CONSULTANT'S
INDEMNIFICATION OBLIGATIONS UNDER SECTION 11(a) ABOVE,
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TREATMENT HAS BEEN REQUESTED. ALL SUCH OMITTED MATERIAL HAS BEEN FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 406 PROMULGATED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED.
-15-
AND FOR (B) DAMAGES ARISING OUT OF CONSULTANT'S BREACH OF ITS OBLIGATIONS UNDER
SECTIONS 8 AND 9 ABOVE, IN NO EVENT SHALL EITHER PARTY, ITS AFFILIATES, OFFICERS
OR EMPLOYEES BE LIABLE TO THE OTHER PARTY OR ANY OTHER PERSON OR ENTITY FOR ANY
SPECIAL, INCIDENTAL, INDIRECT, CONSEQUENTIAL, PUNITIVE, MULTIPLE OR RELIANCE
DAMAGES WHATSOEVER, WHETHER SUCH ALLEGED DAMAGES ARE ALLEGED IN CONTRACT, TORT
OR OTHERWISE (INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, LOSS OF
SAVINGS, LOSS OF DATA, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION OR
LOSS OF USE DAMAGES) EVEN IF ANY SUCH ENTITY IS MADE AWARE OF THE POSSIBILITY OF
SUCH DAMAGES OR IF THE DAMAGES ARE FORESEEABLE.
13. Assignment
Consultant shall not assign or transfer all or part of its rights or
obligations under this Agreement nor subcontract any of its obligations under
this Agreement without the prior written consent of Customer and without causing
such assignee, transferee or subcontractor to be bound in writing by the terms
of this Agreement as if it were Consultant. Customer shall have the right to
assign or transfer all or part of its rights or obligations hereunder without
the consent of Consultant.
14. Notices
Any notices required under this Agreement may be hand delivered or shall be
deemed received [**] ([**]) business days after mailing as certified mail,
return receipt requested, or via overnight express delivery, to the following
addresses:
If to Consultants: Attn: General Manager
Technology Providers. Inc.
000 X. Xxxx Xxxxxx
Xxxxx 0
Xxxxxxxxxxx, XX 00000
XXX
If to Customer: Attn: CEO
edocs, Inc.
Apple Hill, Building 2
000 Xxxxxxxxx Xxxx
Xxxxxx, XX 00000
XXX
__________________
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TREATMENT HAS BEEN REQUESTED. ALL SUCH OMITTED MATERIAL HAS BEEN FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 406 PROMULGATED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED.
-16-
15. Arbitration
If any dispute arises under this Agreement, the parties agree that a good
faith attempt to resolve the dispute shall be made by presenting the position of
the parties to the President of the Consultant and the President of the
Customer, or person designated by them, at a meeting at a neutral site. If no
such meeting can be arranged within [**] ([**]) weeks from any request for such
a meeting or if the identified individuals are unable to reach agreement within
[**] ([**]) week after such meeting or if the delays inherent in this dispute
resolution process would cause undue harm to either party as reasonably
determined by the party alleging to experience such harm, the parties agree that
the dispute shall be resolved by binding arbitration by three arbitrators, one
chosen by Customer, one chosen by Consultant and one chosen by the two so
chosen, in the City of Boston, Massachusetts, under the rules of the American
Arbitration Association, and that the award shall be enforceable under any court
having jurisdiction thereof. Notwithstanding the foregoing, either party has
the right to file a claim against the other in a court of competent jurisdiction
within the Commonwealth of Massachusetts in the event that Consultant allegedly
breaches (i) any obligation of confidentiality, including without limitation the
obligations under Sections 8, or (ii) Section 9 of this Agreement or Consultant
otherwise infringes any of Customer's intellectual property rights.
16. Governing Law
This Agreement will be interpreted and governed by the laws of the
Commonwealth of Massachusetts, exclusive of its conflicts of law provisions.
Customer and Consultant each consent to the exclusive personal jurisdiction and
venue in the State and Federal courts within Essex and Suffolk counties,
Massachusetts. The parties hereby waive any law that might provide for an
alternative law or forum.
17. Non-Solicitation
Except as otherwise agreed to in writing by the parties including, without
limitation, agreeing to the amount of the fee to be paid by the hiring party to
the non-hiring, party, the parties agree that during the term of this Agreement,
and for a period of [**] ([**]) months after termination of this Agreement,
neither party shall directly or indirectly solicit for employment, employ or
engage as a consultant any person employed then or within the preceding, year by
the other party and who come in contact with persons directly or indirectly in
the performance of this Agreement.
18. Modification of the Agreement
This Agreement may only be modified by a written agreement duly signed by
persons authorized to sign agreements on behalf of Customer and of Consultant,
and variance from the terms and conditions of this Agreement in any purchase
order or any other written notification from the Customer will be of no effect.
__________________
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TREATMENT HAS BEEN REQUESTED. ALL SUCH OMITTED MATERIAL HAS BEEN FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 406 PROMULGATED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED.
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19. Enforceability
If any provision or provisions of this Agreement shall be held to be
invalid, illegal or unenforceable, the validity, legality and enforceability of
the remaining provisions shall not in any way be affected or impaired thereby.
20. Y2K Compliance
With respect to Fixed Price Services and Time and Materials Services in
which the parties mutually agree in advance that the Software developed in
connection with such services will be Year 2000 compliant, Consultant represents
and warrants to Customer that such Software delivered to the Customer hereunder
shall be "Year 2000 Compliant". "Year 2000 Compliant" means that the Software,
when used in accordance with its associated documentation, has been designed and
tested by the Consultant and will be capable of correctly processing,
displaying, providing and/or receiving "DATE" data type and associated calendar
arithmetic over a broad range of dates, including the year 2000 and beyond, but
only to the extent that the Software is intended to so process, display, provide
and/or receive "DATE" data type and associated calendar arithmetic.
Notwithstanding the foregoing, this warranty shall not apply to any problems
associated with software, firmware, products or other technology with which the
Software is combined, exchanges data and/or interoperates, provided such item
has not been provided by Consultant. In addition to any other remedies Customer
may have for Software that is not "Year 2000 Compliant", Customer's remedy shall
be for Consultant to repair or replace the Software in order to make it "Year
2000 Compliant" at no charge to the Customer.
21. Survival of Obligations
The provisions of Sections 6 through 9, 10(c) and 11 through 23 of this
Agreement shall survive the termination or expiration of this Agreement as a
continuing agreement of Customer and Consultant.
22. Force Majeure
Neither party shall be held liable or deemed to be in default for any delay
or failure in performance under this Agreement resulting from acts reasonably
beyond the control of such party, including, without limitation, extreme
weather, acts of God, acts or regulations of any governmental or supra-national
authority or national emergency, accident, riot, fire or other natural calamity.
The party whose performance is so affected, upon prompt notice thereof to the
other party, shall be excused from such performance to the extent caused by the
force majeure interruption, provided that the party so affected shall use all
reasonable efforts to remove such cause or causes of non-performance as soon as
practicable it being understood that the fees otherwise due hereunder from
Customer to Consultant shall not be due with respect to any period for which
Services are not performed due to the occurrence of any event described in this
paragraph.
__________________
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TREATMENT HAS BEEN REQUESTED. ALL SUCH OMITTED MATERIAL HAS BEEN FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 406 PROMULGATED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED.
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23. Entire Agreement
This agreement and the attachments hereto constitute the entire agreement
between the parties for the Services provided as of the Effective Date of this
Agreement and thereafter. It does not supersede any prior agreement for
Services rendered prior to the Effective Date of this Agreement; notwithstanding
the foregoing, Section 2 of that certain Assignment and Consent dated as of [**]
by and among Consultant, Customer and edocs, Inc., a California corporation, is
hereby deleted in its entirety and replaced with the following:
"Notwithstanding edocs California's ownership of all right, title and interest
in such Software, TPI shall be free to use for TPI's business purposes any
general and non-tangible ideas, concepts and techniques of general utility
utilized in the Software, provided however that in no event shall the source
materials for the Software or the Software be used by TPI or disclosed by TPI to
any third party."
IN WITNESS WHEREOF, Consultant and Customer have caused this Agreement to
be signed and delivered by their duly authorized officers and effective as of
the date first above written.
TECHNOLOGY PROVIDERS, INC. EDOCS, INC.
"Consultant" "Customer"
By: [**] By: [**]
---- --------------------
Printed Name: [**] Printed Name: Xxxxx X. Xxxxxxx
---- ----------------
Title: President and COO Title: CEO
----------------- ---
__________________
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TREATMENT HAS BEEN REQUESTED. ALL SUCH OMITTED MATERIAL HAS BEEN FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 406 PROMULGATED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED.
SCHEDULE A
Agreement for Consulting Services
-------------------------------------------------------------------------------
Customer Name: edocs, Inc.. Agreement Date: [**]
Retainer Basis Services Rates/Resources
---------------------------------------
Qty Description of Services or Project Team Daily Rate Monthly Rate Extended
Resources Per person Monthly Rate
[**] US Project Manager (on-site) [**] [**]
[**] Offshore Senior Technology Manager [**] ([**] days) [**] [**]
[**] Offshore Project Manager [**] [**]
[**] Offshore Team leaders [**] [**]
[**] Offshore Engineers [**] [**]
[**] Offshore QC Team Leader [**] [**]
[**] Offshore QC Engineers [**] [**]
[**] Offshore Technical Writer [**] [**]
[**] Offshore Release Engineer [**] [**]
[**] Offshore Maintenance Team Leader [**] [**]
[**] Offshore Maintenance Engineers [**] [**]
[**] Total Monthly Payment for Retainer Basis Services $[**]
__________________
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TREATMENT HAS BEEN REQUESTED. ALL SUCH OMITTED MATERIAL HAS BEEN FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 406 PROMULGATED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED.
TIME AND MATERIALS RATES
------------------------
US Consultant Time and Materials Daily Rate $[**]/day*
-------------------------------------------
US Architect Time and Materials Daily Rate $[**]/day*
------------------------------------------
* For personnel of Consultant who reside in the US. Subject to availability.
Offshore Personnel Time and Materials Daily Rate: $[**]/day for Project Manager
------------------------------------------------
and Team Leaders and $[**]/day for all other categories of personnel set forth
in the table above ("Offshore Daily Rate").
Cost of Living Adjustment for Local Services (as defined in Section 3(a) of
--------------------------------------------
Agreement)
Cost of Living Adjustment for Local Services for Retainer Basis Services:
------------------------------------------------------------------------
$[**]/day (paid for at the lesser of (a) [**] or (b) if less than [**] is worked
in [**], such lesser number of days only)
Cost of Living Adjustment for Local Services for Offshore Personnel Time and
----------------------------------------------------------------------------
Materials Services: $[**]/day (paid for at the lesser of (a) [**] or (b) if
------------------
less than [**] is worked in [**], such lesser number of days only)
EDOCS, INC. TECHNOLOGY PROVIDERS, INC.
[**] [**]
------------------------------ -------------------------------------------
edocs, Inc. signature Date Technology Providers, Inc. signature Date
Xxxxx X. Xxxxxxx [**]
------------------------------ -------------------------------------------
Name Name
CEO President
------------------------------ -------------------------------------------
Title Title
__________________
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TREATMENT HAS BEEN REQUESTED. ALL SUCH OMITTED MATERIAL HAS BEEN FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 406 PROMULGATED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED.
Schedule B
----------
CONFIDENTIALITY AGREEMENT
-------------------------
Confidentiality Agreement entered into on [**], between edocs, inc.
("edocs") and Technology Providers, Inc. (the "company"). edocs and the Company
agree that the following terms and conditions shall apply when edocs discloses
Proprietary Information and Technology as defined below to the Company.
edocs is disclosing to the Company certain commercially valuable,
proprietary and confidential information and trade secrets with respect to
edocs' (and edocs' customers, potential customers, business partners, and
potential business partners (collectively, the "edocs Business Associates"))
business, products and sales and marketing strategies, including without
limitation, information and tangible and intangible property which may relate to
the edocs' and edocs' Business Associates' business, finances, operations,
strategic planning, product and marketing plans, customer and supplier and
prospect lists and data, research and development activities, current or
proposed products, designs, patents, patent rights, applications, processes,
technologies, trade secrets, software technology, computer source code and
object code, hardware and software designs and specifications, schematics, flow
charts, logic diagrams, processes, drawings, specifications, programs, models,
financial information and projections, formulae, data, know-how, developments,
designs, improvements, software programs, sales and marketing strategies, and
other valuable business information and products (collectively, the "proprietary
information and technology").
Company agrees to keep strictly confidential all such Proprietary
Information and Technology so received by it and to use such Proprietary
Information and Technology solely for the purpose of providing research and
development and related services to edocs. Company agrees that any and all
Proprietary Information and Technology disclosed to Company by edocs is and
shall remain the proprietary and confidential information and property of edocs
or the edocs Business Associates, as applicable. Company may not use any of the
Proprietary Information and Technology referred to above for any purpose other
than the above-stated purpose without the prior written consent of edocs.
Company agrees to use the utmost degree of care to maintain and protect any
and all Proprietary Information and Technology as confidential and not to use
for its own commercial benefit or disclose the Proprietary Information and
Technology to any third party except as provided in the next sentence. Company
will disclose the Proprietary Information and Technology only to those of its
employees and subcontractors (to the extent such subcontractors are pre-approved
by edocs ("Subcontractors")) to the extent either such employees or
Subcontractors require knowledge or access to the Proprietary Information and
Technology for the limited purpose of providing research and development and
related services to edocs and who have executed a confidentiality agreement with
Company. Company will inform those employees and Subcontractors who have access
to the Proprietary Information and Technology that such information is valuable
confidential information and trade secrets of edocs or the edocs Business
Associates, as applicable.
__________________
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TREATMENT HAS BEEN REQUESTED. ALL SUCH OMITTED MATERIAL HAS BEEN FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 406 PROMULGATED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED.
-2-
Company shall use its best efforts to ensure compliance with the
confidentiality obligations of this Agreement by its employees and
Subcontractors having access to the Proprietary Information and Technology.
Company agrees not to provide any portion of the Proprietary Information and
Technology to any of its employees and Subcontractors who do not have a need to
know the Proprietary Information and Technology in connection with providing
research and development and related services to edocs. Upon request of the
edocs, Company agrees to return within 3 days all copies of any such Proprietary
Information and Technology which was previously obtained by it.
Company's obligations as to the Proprietary Information and Technology
shall not apply to any portion of the Proprietary Information and Technology:
(a) of which Company presently has knowledge or which is in Company's possession
prior to the initiation of a relationship between the parties and of which it
did not learn through any contact with edocs previous to the initiation of the
relationship; (b) which is presently publicly available or a matter of public
knowledge or public domain generally; or (c) which is lawfully received by
Company from a third party who is or was not bound in any confidential
relationship to edocs.
edocs grants no license, by implication or otherwise, under any of its or
the edocs Business Associates', as applicable, copyrights, patents, trade
secrets, trademarks or tradename rights, as a result of the disclosure of the
Proprietary Information and Technology to Company under this Agreement. The
terms of this Agreement apply to all Proprietary Information and Technology
provided by edocs to Company commencing with the date on which Company and edocs
first commenced discussions regarding a possible business relationship between
edocs and Company.
Company acknowledges that edocs shall not have an adequate remedy in the
event that Company breaches this Agreement and that edocs will suffer
irreparable damage and injury. In such event, Company agrees that the edocs, in
addition to any other available rights and remedies, shall be entitled to an
injunction restricting Company from committing or continuing any violation of
this Agreement. The parties agree to submit to the jurisdiction of the courts
of the Commonwealth of Massachusetts for the purpose of interpreting or
enforcing any of the provisions of this Agreement. This Agreement shall be
governed by the laws of the Commonwealth of Massachusetts.
EDOCS, INC. TECHNOLOGY PROVIDERS, INC.
By: [**] By: [**]
----------------- ----------------------
Title: CEO Title: President and COO
----------------- ----------------------
Date: Date:
----------------- ----------------------
__________________
[**] INDICATES MATERIAL THAT HAS BEEN OMITTED AND FOR WHICH CONFIDENTIAL
TREATMENT HAS BEEN REQUESTED. ALL SUCH OMITTED MATERIAL HAS BEEN FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 406 PROMULGATED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED.
