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Exhibit 10.19
MASTER SERVICES AGREEMENT FOR CONSULTING SERVICES
(HEREINAFTER REFERRED TO AS AGREEMENT)
BETWEEN
XXX X. XXXXXX, INC.
(HEREINAFTER REFERRED TO AS WESTON)
0000 XXXXXX XXX
XXXX XXXXXXX, XX 00000
AND
INFRASTRUCTURE REVITALIZATION INSTITUTE
(HEREINAFTER REFERRED TO AS CONSULTANT)
0000 XXXXX XXXXXX XXXX, XXXXX 000
XXXXXX, XXXXXXXX 00000
ARTICLE I - INTRODUCTION
WHEREAS, WESTON, a Pennsylvania Corporation, may from time to time have
work for which it may require the services and expertise of CONSULTANT.
WHEREAS, CONSULTANT has represented to WESTON that it possesses the
appropriate qualifications, expertise and resources to perform such services.
NOW, THEREFORE, the parties agree that the terms and conditions set
forth below shall govern the services to be provided by CONSULTANT to WESTON.
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Exhibit 10.19
ARTICLE 2 - SCOPE OF WORK
(a) WESTON hereby engages CONSULTANT to perform the services
(hereinafter referred to as Services) as may be requested in
Purchase Order Releases issued by WESTON hereunder and agreed
to by CONSULTANT. This agreement authorizes, but shall not
obligate WESTON, to issue Purchase Order Releases in
accordance with Article 4 hereunder. The extent of WESTON's
financial obligation under this agreement shall be the
cumulative total value of all Purchase Order Releases issued
hereunder.
(b) WESTON may propose Work to CONSULTANT as WESTON believes to
be within CONSULTANT's professional competence. CONSULTANT,
in his sole discretion, may accept or reject any Work
proposed by WESTON. CONSULTANT agrees to devote his/her best
professional effort to the accomplishment of each Purchase
Order Release accepted by him/her and to perform with
diligence and expedition, consistent with the highest
recognized professional standards and in compliance with all
applicable laws and regulations.
(c) CONSULTANT will provide professional contracting and
consulting expertise for specific tasks, relating to program
facilitation and development, as well as other projects to be
assigned. The specific duties will be planned in accordance
with definite time requirements to accomplish the various
tasks. As such, each assignment will be specifically defined
by task orders, issued against this Master Agreement.
(d) CONSULTANT shall perform work at locations to be identified in
Purchase Order Releases to be issued hereunder.
ARTICLE 3 - ORDER OF PRECEDENCE
In the event of an inconsistency or ambiguity between the documents comprising
this Agreement and the Purchase Order Releases issued hereunder (including Scope
of Work and all changes and modifications thereto), the following order of
precedence shall govern:
A. Purchase Order Releases including all changes or modifications
thereto;
B. Scope of Work; and
C. Agreement.
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Exhibit 10.19
ARTICLE 4 - PURCHASE ORDER RELEASES
The CONSULTANT shall perform such work as WESTON may, from time to time,
authorize on Purchase Order Releases issued hereunder. A sample Purchase Order
Release is attached hereto as Exhibit A. Only the WESTON authorized
representative identified in Article 6 or alternate individual as may be
designated in writing may execute a Purchase Order Release. Each Purchase Order
Release issued and accepted by the CONSULTANT shall become a part of this
Agreement. Such Purchase Order Releases will describe the effort to be
accomplished, the completion schedule, the compensation schedule, the applicable
contractual provisions, performance benchmarks and all other relevant
information.
Prior to issuance of any Purchase Order Release, WESTON shall provide a detailed
scope of work to the CONSULTANT and obtain from CONSULTANT, a price estimate and
schedule to accomplish such work. The parties hereto will reach mutual agreement
regarding the compensation and schedule for such work prior to final issuance
and authorization to proceed under any Purchase Order Release.
ARTICLE 5 - CONFIDENTIALITY
(a) CONSULTANT shall receive and retain Proprietary Information in
confidence and shall not disclose such information to any
person without the express written authorization of WESTON.
CONSULTANT shall use Proprietary Information solely for the
purpose of performing its obligations hereunder and for no
other purpose. Upon termination of this Agreement, CONSULTANT
shall promptly return all Proprietary Information to WESTON,
and will, if requested by WESTON, execute a certificate
warranting that all Proprietary Information has been returned
to WESTON in accordance with this Agreement.
(b) WESTON shall receive and retain all Proprietary Information in
confidence and shall not disclose such information to any
person without the express written authorization of
CONSULTANT. WESTON shall use Proprietary Information solely
for the purpose of performing its obligations hereunder and
for no other purpose. Upon termination of this Agreement,
WESTON shall promptly return all Proprietary Information to
CONSULTANT, and will, if requested by CONSULTANT, execute a
certificate warranting that all Proprietary Information has
been returned to CONSULTANT in accordance with this Agreement.
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Exhibit 10.19
ARTICLE 6 - AUTHORIZED REPRESENTATIVES
The following individuals are the authorized representatives of the respective
parties to execute this Agreement and any subsequent Notices To Proceed issued
hereunder:
CONSULTANT: Xxxxxxxx Xxxxxxx, Executive Vice President
WESTON: Xx Xxxxxxx, Vice President
Any subsequent changes to the authorized representatives cited above must be
mutually agreed to via written modification to this Agreement.
ARTICLE 7 - WORK PRODUCT
(a) All information, including, but not limited to, all designs,
drawings, specifications, standards, processes, manuals,
reports, computer software and related information, first
produced by CONSULTANT for WESTON during the performance of
the Services hereunder, shall be considered Proprietary
Information and shall be retained and used solely in
accordance with the provision of Article 5 hereof. To the
extent any such information comprises work susceptible to
protection under the Copyright laws, CONSULTANT agrees that
such work shall be deemed "work made for hire" hereunder. In
the event that such work is determined not to be "work made
for hire" under the copyright laws, this Agreement shall
operate as an irrevocable assignment by CONSULTANT to WESTON
of the copyright in the work, including all right, title and
interest therein, in perpetuity.
(b) All inventions, improvements and discoveries, whether
patentable or not, first conceived, developed or reduced to
practice by CONSULTANT, either alone or with others, in the
course of the performance of CONSULTANT's Services hereunder,
shall be the sole property of WESTON. All such inventions,
improvements and discoveries shall be promptly disclosed to
WESTON in writing. At WESTON's request and expense, CONSULTANT
agrees to (i) assist WESTON in making application for patents
on such inventions, improvements and discoveries in the United
States and any foreign countries (ii) assign all such
applications to WESTON or its designee without further
charges, (iii) assist WESTON in the prosecution of any patent
application and the enforcement of any resulting patents and
(iv) execute any and all documents necessary for the
accomplishment of the foregoing.
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Exhibit 10.19
ARTICLE 8 - CONFLICTS OF INTEREST
(a) CONSULTANT warrants that, to the best of his knowledge and
belief, there are no relevant facts or circumstances which
could give rise to a conflict of interest under this
Agreement, or that CONSULTANT has disclosed all such relevant
information.
(b) The CONSULTANT agrees that if an actual or potential conflict
of interest is discovered after award, the CONSULTANT will
make a full disclosure in writing to WESTON. This disclosure
shall include a description of actions which the CONSULTANT
has taken or proposes to take, after consultation with WESTON
to avoid, mitigate or neutralize the actual or potential
conflict.
(c) In performing these Services, CONSULTANT shall not communicate
with any officer, representative, employee, elected official
or agency of the U.S. Government or any state or local
government on behalf of WESTON.
(d) If CONSULTANT is a former United States government employee,
CONSULTANT agrees to furnish WESTON all necessary information
regarding any potential conflict of interest.
ARTICLE 9 - SCHEDULE AND TERM OF AGREEMENT
The effective date of this agreement shall be July 1, 1999 and shall continue in
full force and effect for a period of two years thereafter unless earlier
terminated as provided herein.
ARTICLE 10 - COMPENSATION, INVOICING AND PAYMENT
(a) WESTON will pay CONSULTANT for work performed for WESTON as
specifically assigned and defined by WESTON at the rates
presented in Purchase Order Releases and will reimburse
CONSULTANT at cost its reasonable travel, associated food and
lodging and auto rental expenses approved by WESTON and
incurred in the performance of Services up to the maximum
amount specified in Purchase Order Releases. In consideration
of the remuneration set forth herein and for other good and
valuable consideration acknowledged as having been received
but not specifically set forth in this Agreement, CONSULTANT
hereby agrees to release WESTON from any and prior claims
which CONSULTANT may have against
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Exhibit 10.19
WESTON. No entertainment is authorized under this Agreement
and no entertainment expenses will be reimbursed under this
Agreement, except as defined as part of any specific Purchase
Order Release authorized hereunder. Entertainment includes the
purchase of meals or refreshments for any individual other
than CONSULTANT.
(b) For tasks performed on a time and materials basis, CONSULTANT
shall use the labor categories and corresponding fully loaded
rates as provided in Attachment A. Such rates shall be
renegotiated at the end of the first year of this agreement
and annually thereafter. CONSULTANT may amend this labor
category and rate schedule to provide for additional labor
categories as needed.
(c) CONSULTANT shall submit invoices for completed Services (in a
form acceptable to WESTON) within 30 days of the date of
performance of the Work. Invoices shall include, but not be
limited to the following:
1. The Agreement number, Work Order number, Purchase
Order Release number, dates of service, name of
authorized WESTON representative.
2. Names of personnel and title, net unit price or
hourly rate for Services rendered, extended totals,
expenses by category and total amounts due.
3. Invoices shall be submitted as an original and one
copy to:
Xxx X. Xxxxxx, Inc.
Xxx Xxxxxx Xxx
Xxxx Xxxxxxx, XX 00000-0000
Attn: Accounts Payable
One (1) copy shall also be forwarded to the authorized WESTON
representative under separate cover.
(d) Payments shall be issued to CONSULTANT net 30 days after
receipt and approval of CONSULTANT's invoices by the
authorized WESTON representative. WESTON shall be under no
obligation to reimburse CONSULTANT for any expenses incurred
in violation of any law or to compensate CONSULTANT for any
Services, the performance of which violated any law.
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Exhibit 10.19
ARTICLE 11 - TERMINATION
Either party may terminate this Agreement upon thirty (30) days written notice.
Further, WESTON may terminate this Agreement at any time if CONSULTANT breaches
this Agreement or is unable to perform. Termination of this Agreement will not
affect the provisions of Article 5 and 7 which shall remain in effect for a
period of five (5) years from the date of termination.
ARTICLE 12 - SUPPLEMENTAL PROVISIONS
WESTON may, under certain Purchase Order Releases issued under this Agreement
flow down certain clauses from its Client contracts. CONSULTANT agrees to comply
with all supplemental provisions made a part of any specific Purchase Order
Release authorized hereunder.
ARTICLE 13 - RECORDS RETENTION
CONSULTANT shall retain all billing records related to this Agreement in legible
form for a period of five (5) years from date of final payment hereunder, or as
specified in WESTON's Client Contract, whichever period is greater. CONSULTANT
authorizes WESTON to inspect and audit these records during business hours with
prior notice to CONSULTANT.
ARTICLE 14 - TAXES
CONSULTANT shall have sole responsibility for payment of all Federal, State
(unless provided with a Non-taxable Transaction Certificate), Local and other
income taxes and for all employment and other taxes applicable to the
consideration paid to CONSULTANT hereunder. CONSULTANT further agrees to
indemnify and hold WESTON harmless from and against any and all claims related
to such taxes.
ARTICLE 15 - INDEPENDENT CONTRACTOR
In performance of all Services, CONSULTANT shall be deemed to be an "independent
contractor" and as such, shall not be entitled to any benefits applicable to the
employees of WESTON. The CONSULTANT declares that he is engaged in an
independent business and that similar services are provided for other clients
and WESTON is not the CONSULTANT's sole and only client. CONSULTANT shall in no
way be deemed to be an agent or representative of WESTON. CONSULTANT shall have
no authority to bind or speak for WESTON except as may be specifically given to
CONSULTANT in writing from time to time.
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Exhibit 10.19
ARTICLE 16 - INSURANCE
CONSULTANT shall maintain insurance at its own expense for Services performed
hereunder. Such insurance shall include, but not be limited to, Comprehensive
General Liability ($300,000 Minimum). Certificates of insurance shall be
provided to WESTON immediately upon request.
ARTICLE 17 - WARRANTY
CONSULTANT warrants: (a) that it possesses the expertise, capability, equipment
and personnel to properly and professionally perform its Services hereunder,
that it is properly and legally licensed (if applicable) to perform such
Services, and that it shall at all times in the performance of such Services
comply with all applicable laws, ordinances and regulations and shall perform
all Services in a good, workmanlike, professional, efficient and non-negligent
manner; and (b) it does not and during the period of performance of this
Agreement will not represent any competitor of WESTON without first providing
WESTON notice describing the scope of work and the competitor.
ARTICLE 18 - INDEMNIFICATION
The CONSULTANT agrees to indemnify and hold harmless WESTON, its officers,
directors, agents and employees for any loss, including reasonable and actual
attorney's fees, costs or damages that WESTON may incur as a result of the
negligent acts or omissions of the CONSULTANT or the CONSULTANT's employees or
agents.
WESTON agrees to indemnify and hold harmless the CONSULTANT, its officers,
directors, agents and employees for any loss, including reasonable and actual
attorney's fees, costs or damages that WESTON may incur as a result of negligent
acts or omissions of WESTON or WESTON's employees or agents.
Neither party shall be liable to the other for incidental, indirect or
consequential damages, except where same arises out of the gross negligence or
willful misconduct of the other party.
ARTICLE 19 - CHANGES
WESTON may, at any time by written notice to CONSULTANT, make changes to any of
the documents constituting this Agreement. Claims for additional compensation or
extension of time (adjustments) under this Article must be made in writing
within ten (10)
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Exhibit 10.19
days of issuance of a change notice from WESTON. Failure to provide such written
claim shall constitute a waiver of such claim for adjustment. No claims for
adjustment will be accepted by WESTON after final payment hereunder. Failure to
reach mutual agreement regarding such adjustments hereunder shall constitute a
dispute to be resolved under Article 22 of this Agreement.
ARTICLE 20 - ASSIGNMENT
This Agreement may not be assigned by CONSULTANT, either in whole or in part,
without the prior written consent of WESTON and any attempted assignment shall
be null and void and without force and effect.
ARTICLE 21- YEAR 2000 COMPLIANCE WARRANTY
In addition to all other representations and warranties made hereunder, the
CONSULTANT represents and warrants to WESTON that all Services furnished
hereunder including any and all deliverables developed or required to be
provided hereunder, including without limitation, all designs, drawings,
specifications, standards, processes, manuals, reports, computer software and
related information are fully compliant in all respects with the Year 2000, and
those Services will operate and perform without errors, malfunctions or defects
(including specifically errors, malfunctions or defects relating to date data
representing or referencing different centuries or more than one century) at all
times prior to, during and after the calendar year 2000 A.D. In the event any
such errors, malfunctions or defects are detected in the Services furnished by
the CONSULTANT hereunder, CONSULTANT shall, at its sole cost and expense,
promptly repair or replace the defective Services with Services of like quality,
form, fit and function in all respects as they relate to Year 2000 compliance.
The warranties of CONSULTANT shall survive expiration or earlier termination of
this Agreement, and shall extend to WESTON and all users of the Services.
ARTICLE 22 - DISPUTES
Any dispute arising under this Agreement, including disputes under termination,
not settled by agreement of the parties, shall be decided by litigation in a
court of competent jurisdiction. Pending any decision, appeal, suit, or claim
pursuant to this Article, CONSULTANT shall proceed diligently with the
performance of the work authorized under this Agreement. The rights of WESTON
and the obligations of CONSULTANT shall survive completion of performance in
accordance with the provisions of this Agreement and the Purchase Order Releases
issued thereunder and final payment hereunder.
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Exhibit 10.19
ARTICLE 23 - SEVERABILITY
Any provision or part thereof of this Agreement held to be void or unenforceable
under any law or by any court shall be deemed stricken, and all remaining
provisions shall continue to be valid and binding upon the parties. The parties
may reform or replace such stricken provision or part thereof with a valid and
enforceable provision which expresses the intent of the stricken provision.
ARTICLE 24 - GOVERNING LAW
This Agreement shall be governed by and interpreted in accordance with the laws
of the Commonwealth of Pennsylvania, exclusive of the choice of law rules
thereof, as if therein wholly to be performed.
ARTICLE 25 - NON-EXCLUSIVITY
This Agreement is non-exclusive.
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Exhibit 10.19
ARTICLE 26 - ENTIRE AGREEMENT
This Agreement, including all Purchase Order Releases issued hereunder,
constitutes the sole and only agreement of the parties hereto and supersedes any
prior understandings or written or oral agreements between the parties with
respect to the subject matter hereof. This Agreement may be amended only by a
writing signed by the duly authorized representative of each party.
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed by
their duly authorized representatives.
CONSULTANT:
BY:
NAME: Xxxxxxxx X. Xxxxxxx
(Print/Type)
TITLE: Executive Vice President
DATE: 11/11/99
XXX X. XXXXXX, INC. (WESTON):
BY:
NAME: Xxxxxx X. Xxxxxxx,Xx.
(Print/Type)
TITLE: VP, Marketing
DATE: 11/11/99
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Exhibit 10.19
Attachment A
IRI Rate Schedule
(Effective 11/11/99)
Senior Consultant $85.00
Consultant/Project Manager $65.00
Web Developer $60.00
Writer/Communications Expert $55.00
Jr. Writer/Researcher $35.00
Administrative Support $25.00
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