EXHIBIT 10.68
AGREEMENT
The terms of this Agreement are based upon an agreement prepared by the
National Association of Computer Consultant Businesses and are subject to the
copyright of that association. Any use of any language in this Agreement by
anyone who is not a member in good standing of that association is prohibited
and will subject the user to damages as well as other civil penalties.
An Agreement made MARCH 7, 1997 by and between ADEPT, INC. with its principal
place of business at 000 XXXXXXXXX XXXX, XXXXXXXXX, XX 00000 (herein after
referred to as ADEPT) and ALTERNATIVE TECHNOLOGY RESOURCES with its principal
place of business at 000 X. XXXXXX, XXXXXXXXXX, XX 00000 (hereinafter referred
to as Contractor).
The parties agree as follows:
1. SCOPE
Contractor agrees pursuant to the terms herein to provide programming and/or
engineering and other specialized services as an independent contractor
directly to the third party user ("TPU") who has engaged ADEPT (or for whom
ADEPT is proposing) to locate temporary staffing of the TPU's project according
to the training, skills, abilities, and experience as established as
requirements by the TPU. ADEPT agrees to examine Contractor's employees'
background for providing services to clients, to refer Contractor's employees
to the TPU for further evaluation and offer of assignment, to negotiate a rate
for those services and to otherwise perform as stated herein. In consideration
of the foregoing, each of the parties agrees to be bound to the other according
to the terms and conditions hereinafter set forth.
2. TERM OF AGREEMENT
Contractor services under this Agreement will terminate at the end of the
minimum time requirement period covered by the Purchase Order (Exhibit A)and
any renewals or extensions thereof ("end date"). Contractor may not voluntarily
terminate its services under this Agreement before the end date unless, as
stated in writing by the TPU, the project has been completed or the services
are no longer required. In addition, the provisions of paragraphs 4, 5, 8, 13,
and 14 shall apply even if the Contractor rejects an assignment offered by the
TPU and does not provide its services, in which case, however, ADEPT shall have
no further obligation to Contractor.
Prior to the commencement of such services, ADEPT and Contractor will execute a
Purchase Order on the form attached as Exhibit "A" for each Consultant provided
by the Contractor which shall be considered part of this Agreement and binding
upon both parties. Contractor's employees' services under this Agreement will
terminate at the end of the minimum time requirement period covered by the
Purchase Order and any renewals or extensions thereof ("end date"), or upon one
calendar day's notice if for any reason the TPU no longer desires the services
of Contractor. Contractor may not voluntarily terminate its services under
this Agreement before the end date unless, as stated in writing by the TPU, the
project has been completed or the services are no longer required.
3. ASSIGNMENT OF CONTRACT
Any work on a project will be in accordance with the terms of this Agreement
and the Purchase Order. Contractor is to provide services through its
personnel named in paragraph 7 of the Purchase Order, for whom it is
responsible, and may not assign its rights under this Agreement or any Purchase
Order and may not subcontract its obligations hereunder to others. ADEPT may
arrange for other independent contractors to perform the same work that
Contractor performs on any assignment in accordance with ADEPT's agreements
with the TPU.
4. RESTRICTIVE COVENANT, NON-COMPETITION, DAMAGES
During the term of this Agreement and any renewals thereof, and for one (1)
year after the expiration of the initial and renewal periods, Contractor agrees
that it will pay a Finder's Fee to ADEPT if (a) Contractor or any of its
personnel provides or attempts to provide (or advises others of the opportunity
to provide), directly or indirectly, any services to any TPU to which
Contractor has been introduced or about which Contractor has received
information through ADEPT or through any TPU for which Contractor has performed
services or to which Contractor was introduced under this Agreement, and (b)
such services are provided. This provision may be waived only on a case-by-
case basis in writing by an executive officer of ADEPT, in its sole discretion,
prior to Contractor taking the action for which waiver is sought. The term
"TPU" includes any affiliates and divisions of the TPU. All Contractor's
personnel working on projects covered by this Agreement are required to agree
in writing to this paragraph 4 and Contractor will provide evidence of same
within five (5) days of the date of this Agreement.
5. REPRESENTATION
Contractor acknowledges for itself and its personnel that information provided
by it (including, but not limited to, resume, interview, references) in
consideration for providing services to or on behalf of the TPU is true to the
best of Contractor's knowledge, that the Contractor is not restricted by any
employment or other Contractor agreement and Contractor understands that any
misstatements or lack of candor by Contractor of the qualifications or
availability of it or its personnel may be grounds for immediate termination by
the TPU of any assignment and constitutes a breach of this Agreement.
Contractor warrants that it maintains a set of books and records which reflect
items of income and expenses of its trade or business.
6. PAYMENT FOR SERVICES
Payment for services for hours actually worked will be made in the corporate or
business name of Contractor on the periodic basis set forth in the Purchase
Order. Payment to Contractor will be in accordance with the agreed-upon hourly
rate specified in the Purchase Order and no other compensation in any form,
including benefits, will be provided by ADEPT or anyone else. Contractor shall
maintain records of the hours that services have been performed by its
personnel, have a TPU representative verify those hours by signing the records
and submit to ADEPT those records along with Contractor's invoice for the
amount due to Contractor for the hours worked and verified. Payment to
Contractor per its invoice shall be made in accordance with the following:
ADEPT will xxxx the TPU based upon the hours contained in Contractor's invoice
at a rate agreed upon between ADEPT and TPU.
The difference between the amount paid to ADEPT by the TPU and the amount due
to Contractor per its invoice shall be retained by ADEPT as a commission from
the TPU to ADEPT for locating Contractor, arranging for interviews between
Contractor and the TPU, persuading Contractor to work on the project for the
TPU and performing associated administrative functions.
At the request of and as a convenience to Contractor, ADEPT may deliver funds
to it prior to receiving funds from the client. In that event, if ADEPT does
not receive funds from the client that cover all hours set forth in
Contractor's invoice to ADEPT for which such delivery of funds was made, then
Contractor must pay ADEPT an amount equal to any funds delivered by ADEPT to
Contractor based upon hours set forth in that invoice for which the client has
not made payments to ADEPT. Such repayments shall be due immediately upon
written demand mailed to Contractor.
7. TRAVEL, LIVING AND OTHER COSTS
No travel, living, training, entertainment or other costs will be allowed for
Contractors unless authorized and paid by the TPU for whom Contractor is
performing services. ADEPT will provide no training, tools, equipment or other
materials to Contractor. Contractor's invoiced hours will include no time
spent in formal training and any TPU-authorized costs will not include any
reimbursement of formal training. Contractor agrees that it will not reach any
other agreement with TPU or any other party that would permit Contractor to be
paid for any time spent at formal training, to be reimbursed for the costs of
such formal training, or to be provided such formal training by ADEPT, the TPU
or anyone on behalf of ADEPT or the TPU.
In the event the TPU requires an on site interview with Contractor's employee,
Contractor will bear the cost of transportation to the TPU site. ADEPT will
reimburse the Contractor for ground transportation, hotel, meals if necessary.
8. CONFIDENTIALITY/NON-DISCLOSURE
ADEPT is required to maintain the confidentiality of information obtained from
TPUs, as well as information regarding its own business. Contractor agrees
that neither it nor its personnel will disclose to any third party, without the
prior written consent of an executive officer of TPU, any information relating
to the business of TPU, if such information could reasonably be construed as
confidential and was obtained in the course of Contractor's assignment with a
TPU project. Contractor further agrees neither it nor its personnel will
reproduce in any way, divulge, or remove from the premises of TPU, or the
customers and clients of TPU, at any time during assignment or upon leaving the
assignment, any tangible or intangible property whatsoever (except personal
effects) which could reasonably be construed as constituting confidential
information of the TPU, or the customers or clients of the TPU. All
Contractor's personnel working on projects covered by this Agreement are to
agree in writing to this paragraph 8 and Contractor will provide evidence of
same within five days of the date of this Agreement. Contractor agrees to
execute any non-disclosure statement required by TPU in advance of Contractor's
performance on any project of TPU. Contractor further agrees to indemnify and
hold harmless ADEPT for any and all loss, costs and other liability incurred or
threatened, including attorneys' fees, related to violations of the obligations
set forth in this paragraph.
9. CONDUCT, INDEPENDENT STATUS, AND BENEFITS
A. Contractor shall provide competent, professional services in the required
disciplines without instructions from ADEPT, using its own appropriate
independent skill and judgment, and the manner and means that appear best
suitable to it to perform the work. Evaluation of Contractor's performance, if
any, shall be made by the TPU. ADEPT shall have no right or responsibility
hereunder to review such performances, require progress reports, set the order
or sequence for performing of services, or set Contractor's hours or location
of work except that Contractor shall not perform services on ADEPT's premises.
B. Contractor is: A corporation organized pursuant to the Laws of the State
of; doing business under the name and style of ALTERNATIVE TECHNOLOGY
RESOURCES; and certifies that Contractor's federal tax identification number
is.
C. The parties to this Agreement agree that the relationship created by this
Agreement is that of BROKER-INDEPENDENT CONTRACTOR. Contractor agrees and has
advised its personnel, who have agreed as set forth in writing to be provided
to ADEPT within five (5) days of the date of this Agreement, that neither
Contractor nor any of its personnel is an employee of ADEPT or the TPU or is
entitled to any benefits provided or rights guaranteed by ADEPT or the TPU, or
by operation of law, to their respective employees, including but not limited
to group insurance, liability insurance, disability insurance, paid vacation,
sick leave or other leave, retirement plans, health plans, premium "overtime"
pay, and the like. It is understood and agreed that since the Contractor is an
Independent Contractor, ADEPT will make no deductions from fees paid to
Contractor for any federal or state taxes or FICA. ADEPT and the TPU have no
obligation to provide Worker's Compensation insurance coverage for Contractor
or to make any premium "overtime" payments at any rate other than the normal
rate agreed to in the Purchase Order.
D. It shall be the Contractor's responsibility to PROVIDE WORKER'S
COMPENSATION INSURANCE and, if applicable, pay any premium "overtime" rate, for
its employees who work on the project covered by this Agreement and to make
required FICA, FUTA, income tax withholding or other payments related to such
employees, (and to provide ADEPT with suitable evidence of the same whenever
requested). In the event of any claims brought or threatened by any party
against ADEPT or the TPU relating to the status, acts or omissions of
Contractor or its personnel, Contractor agrees to cooperate in all reasonable
respects, including to support the assertions of employment status made in this
agreement.
10. WORKING FOR MULTIPLE FIRMS
Contractor may, to the extent consistent with this Agreement, provide its
services for others and through other BROKERS.
11. LIABILITY
Because of the independent status of the Contractor, it is solely and
completely accountable for the services it provides to the TPU, and neither the
TPU nor its customers and clients, nor ADEPT, shall have any liability
whatsoever to any party for such services provided by Contractor or its
personnel. ADEPT will not indemnify Contractor for any liability incurred by
Contractor, its agents or employees. Contractor understands that ADEPT will
act in good faith to describe the task requirements set forth by the TPU, but
that because Contractor has the opportunity to discuss directly with the TPU
these task requirements prior to acceptance of the project assignment offered
by the TPU, and because ADEPT has no right to control any aspect of the project
on which the Contractor will be working, Contractor hereby releases ADEPT from
any liability relating to representations about the task requirements or to the
conditions under which the Contractor will be working. Contractor also agrees
to release ADEPT from any liability for statements made by ADEPT, without
malice, to third parties who inquire about Contractor's performance.
12. INSURANCE
In addition to any other insurance required by this Agreement, Contractor will
obtain for itself and its personnel before providing services, at its own
expense, comprehensive GENERAL LIABILITY (GL) INSURANCE COVERAGE FOR PROJECTS
COVERED BY THIS AGREEMENT, FOR LIMITS OF LIABILITY NOT LESS THAN FIVE HUNDRED
THOUSAND $500,000 DOLLARS. A certificate of such insurance shall be furnished
to ADEPT within five (5) days of the date of this Agreement. Contractor agrees
to indemnify and hold ADEPT harmless from any and all liability or expense
that ADEPT may incur by reason of bodily injury to any person, or property
damage, or both, solely and proximately caused by the acts of Contractor, its
agents, servants, and employees while performing work or services pursuant to
this Agreement, including attorneys' fees.
13. BREACH
Any breach of any provision of this Agreement by Contractor or its personnel
entitles ADEPT to recover from Contractor damages and injunctive relief.
Contractor agrees that because monetary damages are likely to be inadequate,
ADEPT shall be entitled to temporary injunctive relief (by proving to a court a
likelihood of breach by Contractor) and to permanent injunctive relief (by
proving to a court such breach). If ADEPT is successful in recovering damages
or obtaining injunctive relief, Contractor agrees to be responsible for paying
all of ADEPT's expenses in seeking such relief, including all costs of bringing
suit and all reasonable attorneys' fees.
14. MISCELLANEOUS
A. This Agreement and any attachments or exhibits hereto represent the entire
agreement and understanding of the parties and any modification thereof shall
not be effective unless contained in writing signed by both parties. No other
document, including any agreement between ADEPT and the TPU, shall be deemed to
modify any terms of this Agreement unless expressly stated in writing to do so
and signed by both ADEPT and the Contractor.
B. Each provision of the Agreement shall be considered severable such that if
any one provision of clause conflicts with existing or future applicable law,
or may not be given full effect because of such law, this shall not affect any
other provision of the Agreement which can be given effect without the
conflicting provision of clause.
C. To the extent that there may be any conflict between the terms of this
Agreement and any Purchase Order which may be given hereto, this Agreement
shall take precedence.
D. Contractor represents that Contractor has read and understands the terms of
this Agreement, has had an opportunity to ask any questions and to review this
Agreement with legal counsel of its choice, and is not relying upon any advice
from ADEPT in this regard.
E. This Agreement shall be governed by the laws of the Commonwealth of
Massachusetts and any litigation in connection herewith shall be brought in the
state or federal courts of said Commonwealth.
IN WITNESS WHEREOF, the parties have hereunto set their hands and seals on the
month, day, and year first above written.
ADEPT, Inc. ALTERNATIVE TECHNOLOGY RESOURCES
Business Name of Contractor
XXXXXX X. XXXXX XXXXXX XXX XXXXXX
By Xxxxxx X. Xxxxx By Xxxxxx Xxx Xxxxxx
Title: Chief Financial Officer Title: President
Date: February 28, 1997 Date: February 24, 1997
