Exhibit 10.11
XXXXXXXXX BENEFIT CORPORATION, D/B/A XXXXXXXXX.XXX, CONSULTING AGREEMENT
Agreement made this __ day of _________, 1999 by and between Xxxxxxxxx Benefit
Corporation, d/b/a XxxxXxxxx.xxx ("XxxxXxxxx.xxx"), having a place of business
at 000 Xxxx Xxxxxx Xxxx., Xxxxx 000X, Xxxxxx Xxxxx, Xxxxxxx 00000 and
__________________ ("Broker"), having a place of business at __________________.
WHEREAS, XxxxXxxxx.xxx is in the business of providing, through employees
of XxxxXxxxx.xxx selected by clients, brokers or clients of brokers, as an
independent contractor to clients, or clients of brokers who have requested
brokers to refer temporary staffing, to perform computer programming, software
development, systems analysis, professional engineering, technical writing or
other consulting services and Broker is desirous of retaining XxxxXxxxx.xxx to
provide certain of said consulting services;
NOW, THEREFORE, in consideration of the premises set forth above and for
other good and valuable consideration, the receipt of which is hereby
acknowledged and subject to the terms and conditions of this Agreement, the
parties hereto agree as follows:
1. SERVICES.
Broker hereby retains XxxxXxxxx.xxx to perform the services set forth in
Schedule A to this Agreement and any additional Schedules executed by Broker and
XxxxXxxxx.xxx. Each Schedule for services will be successively lettered [for
example, A, B, C, etc.], will describe the consulting services (the "Services")
that Broker will purchase from XxxxXxxxx.xxx, will name Broker's Client (the
entity that has requested Broker to provide temporary staffing), will set forth
the approximate commencement date and duration of the Services, the name of
XxxxXxxxx.xxx's employee (the "Named Employee") who will perform the Services,
the prices and other details of the Services, and will be signed by an
authorized representative of XxxxXxxxx.xxx and Broker. Schedule A and any other
Schedules executed by Broker and XxxxXxxxx.xxx during the term of this Agreement
(the "Schedules") will be subject to the terms and conditions of this Agreement.
XxxxXxxxx.xxx will use its reasonable commercial efforts to cause the Named
Employee to perform the Services in a good and workmanlike manner. It is
understood and agreed that the Named Employee has been selected by Broker or
Broker's Client to perform the Services, that XxxxXxxxx.xxx has not participated
in such selection and that XxxxXxxxx.xxx does not have the resources, nor will
it have any obligation, to replace the Named Employee with another employee of
XxxxXxxxx.xxx in the event that the Named Employee is unable or unwilling, for
any reason, to perform the Services; XxxxXxxxx.xxx shall have no liability to
Broker or Broker's Client on account of such inability or unwillingness of the
Named Employee.
If Broker orders from XxxxXxxxx.xxx additional Services, such Services
shall be specified in a Schedule which when signed by Broker and XxxxXxxxx.xxx
shall become part of this Agreement and subject to its terms and conditions.
Broker acknowledges that the successful completion of the Services by
XxxxXxxxx.xxx will require the full, timely and good faith cooperation of
Broker, Broker's Client
and their employees, including, without limitation, making available to
XxxxXxxxx.xxx personnel of Broker's Client who will assist in the installation,
testing, and support relating to the Services, and Broker's Client providing in
a timely manner all information and access to key personnel as appropriate to
enable XxxxXxxxx.xxx to perform the Services.
2. AUTHORITY, AND HOURS OF SERVICE.
(a) Authority: XxxxXxxxx.xxx and Broker represent and warrant that they
have the right, power, and authority to enter into this Agreement, and to
perform their obligations under this Agreement.
(b) Hours of Service: XxxxXxxxx.xxx shall provide the Services during
Broker's Client's regular working hours and at a location to be agreed to by
Broker's Client and XxxxXxxxx.xxx, using materials and equipment furnished by
Broker's Client or XxxxXxxxx.xxx. XxxxXxxxx.xxx shall determine the method,
details, and means of performing the Services. Any services provided outside of
the specified hours of service shall be furnished at XxxxXxxxx.xxx's applicable
rates and terms then in effect.
3. PAYMENTS, FEES AND CHARGES.
(a) Broker shall pay XxxxXxxxx.xxx for the Services its rates, fees and
charges set forth in the Schedule for such services. XxxxXxxxx.xxx will maintain
records of the hours that the Services have been performed, have Broker's Client
sign the records to confirm the hours worked, and submit the signed records to
Broker, together with XxxxXxxxx.xxx's invoice for payment based upon the hours
worked. XxxxXxxxx.xxx is entitled to payment of its invoices only upon Broker
receiving the necessary payments from Broker's Client to cover the hours
represented by XxxxXxxxx.xxx's invoice; Broker will use its reasonable
commercial efforts to obtain such payments from Broker's Client. Broker may pay
XxxxXxxxx.xxx's invoice prior to receiving payment from Broker's Client. In the
event that Broker's Client refuses to pay Broker for the Services because of
unsatisfactory performance by the Named Employee and Broker has paid
XxxxXxxxx.xxx for the Services, then, unless XxxxXxxxx.xxx has paid the Named
Employee for the Services, XxxxXxxxx.xxx will refund any overpayment to Broker.
In the event that XxxxXxxxx.xxx has paid the Named Employee for the Services,
then the obligation to refund such overpayment shall be that of the Named
Employee only, but XxxxXxxxx.xxx shall use its reasonable commercial efforts to
cause the Named Employee to refund such overpayment.
(b) Broker shall pay XxxxXxxxx.xxx at XxxxXxxxx.xxx's applicable rates and
terms then in effect for the services performed for Broker or Broker's Client
which are not set forth above and which are requested or approved by Broker.
Broker shall, to the extent approved in advance by Broker's Client, reimburse
XxxxXxxxx.xxx for expenses incurred by XxxxXxxxx.xxx with respect to services
rendered to Broker's Client under this Agreement, including, but not limited to,
the cost of travel required to perform such services.
(c) Unless different payment terms are set forth in a Schedule to this
Agreement, XxxxXxxxx.xxx shall invoice Broker at the end of each two (2) week
period for all fees and charges accrued, and all reimbursable expenses incurred,
during such two (2) week period, and Broker shall pay the invoiced amount within
thirty (30) days of receipt of such invoice. In
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addition to any remedies for non-payment provided for in this Agreement, any
amount payable under this Agreement not paid within thirty (30) days after the
invoice date shall bear interest from the invoice date to the date of payment at
the lesser of one and one-half percent (1 V2%) per month or the highest rate
allowed by applicable law.
4. TERM OF AGREEMENT.
This Agreement shall continue in effect for the period set forth in the
Schedules; if no period is set forth, then it shall be for a period of twelve
(12) months from the date hereof and for such longer period as XxxxXxxxx.xxx is
performing Services under this Agreement.
5. OWNERSHIP OF WORK PRODUCT.
Unless XxxxXxxxx.xxx or the Named Employee and Broker's Client otherwise
agree in writing, all documents, deliverables, software, systems designs, disks,
tapes, and any other materials (collectively "Materials") created in whole or in
part by the Named Employee in the course of providing services to Broker's
Client under this Agreement shall be treated as "work made for hire" (as the
term is defined in Section 101 of the Copyright Act of 1976, as amended) of
Broker's Client and the copyright and all other ownership rights in the
Materials shall be owned by Broker's Client, and the Named Employee shall
immediately disclose to Broker's Client all discoveries, inventions,
enhancements, developments, improvements and similar creations (collectively
"Creations") made, in whole or in part, by the Named Employee in the course of
providing services to Broker's Client. Broker's Client shall own all rights to
the Materials and Creations, including, without limitation, all copyright,
trademark, service xxxx, and patent rights and all other intellectual property
rights in, to and under the Materials and Creations (collectively the
"Intellectual Property"). For good and valuable consideration, XxxxXxxxx.xxx
hereby assigns or will cause the Named Employee to assign to Broker's Client all
right, title and interest, throughout the world, to the Intellectual Property.
6. WARRANTIES.
(a) XxxxXxxxx.xxx warrants that during the period that XxxxXxxxx.xxx is
performing services under this Agreement the Intellectual Property will not
infringe any copyright, United States trademark, patent, or other proprietary
right of any other person. Broker's Client shall promptly notify XxxxXxxxx.xxx
in writing of any claim, action, or proceeding relating to the foregoing
warranty and shall permit XxxxXxxxx.xxx to control the settlement of such claim,
action or proceeding and, through counsel of XxxxXxxxx.xxx's choice, to defend
the claim, action, or proceeding at its expense. Broker's Client shall cooperate
with and assist XxxxXxxxx.xxx, as requested by XxxxXxxxx.xxx, in the defense of
any such claim, action, or proceeding. In the event of any such claim, action,
or proceeding, XxxxXxxxx.xxx may, at its option and expense, either: (x) procure
for Broker's Client the right to use the Intellectual Property; (y) replace or
modify the Intellectual Property to make it non-infringing, but functionally
equivalent; or (z) if the right to continue to use the Intellectual Property
cannot be procured and the Intellectual Property cannot be replaced or modified
at reasonable expense, reimburse Broker's Client for the amount paid, if any,
under this Agreement for the Intellectual Property, less a reasonable sum for
use. It is understood and agreed that any liability or obligation with respect
to the foregoing warranties shall be the liability and obligation of the
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Named Employee, although XxxxXxxxx.xxx will use its reasonable commercial
efforts to cause the Named Employee to perform his or her obligations under this
Agreement. The foregoing states the entire liability of XxxxXxxxx.xxx and the
Named Employee with respect to infringement of any patent, copyright, or other
proprietary right by the Intellectual Property.
(b) XxxxXxxxx.xxx warrants that during the period that XxxxXxxxx.xxx is
performing Services under this Agreement the Services will be performed in a
good and workmanlike manner and that the Intellectual Property will be free from
material defects and conform to applicable specifications. XxxxXxxxx.xxx will,
during the period that XxxxXxxxx.xxx is performing Services under this
Agreement, correct any such material defects and bring the Intellectual Property
into material conformance with applicable specifications. It is understood and
agreed that any liability or obligation with respect to the foregoing warranties
shall be the liability and obligation of the Named Employee, although
XxxxXxxxx.xxx will use its reasonable commercial efforts to cause the Named
Employee to perform his or her obligations under this Agreement. The foregoing
states the entire liability of XxxxXxxxx.xxx and the Named Employee with respect
to defects in the Services or non-conformance with specifications.
7. DISCLAIMER OF WARRANTY AND LIMITATION OF LIABILITY.
(a) EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, XxxxXxxxx.xxx and the
Named Employee EXPRESSLY DISCLAIM ANY AND ALL WARRANTIES CONCERNING THE SERVICES
TO BE RENDERED, WHETHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY
WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
(b) Broker's (including Broker's Client's) and XxxxXxxxx.xxx's (including
the Named Employee's) cumulative liability to the other for all claims arising
in connection with the performance of services under this Agreement Services
shall not exceed the total fees payable by Broker under this Agreement for the
specific services giving rise to the claim. IN NO EVENT SHALL Broker (including
Broker's Client) or XxxxXxxxx.xxx (including the Named Employee) BE LIABLE TO
THE OTHER FOR ANY INDIRECT, CONSEQUENTIAL, PUNITIVE, SPECIAL, EXEMPLARY, OR
INCIDENTAL DAMAGES OF WHATEVER KIND AND HOWEVER CAUSED, EVEN IF Broker
(including Broker's Client's) or XxxxXxxxx.xxx (including the Named Employee),
AS APPLICABLE, KNEW OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES.
(c) Broker will use its reasonable commercial efforts to obtain the
agreement of Broker's Client to the provisions of this Article and the previous
Article.
8. INDEPENDENT CONTRACTOR.
XxxxXxxxx.xxx, in performance of this Agreement, is acting as an
independent contractor and shall have exclusive control of the manner and means
of performing the services to be performed under this Agreement. XxxxXxxxx.xxx
has advised the Named Employee that the Named Employee is not an employee of
Broker or Broker's Client and is not entitled to any benefits provided by Broker
or Broker's Client, or by law, to their employees, including, without
limitation, worker's compensation, health, disability, or any other insurance,
vacations, sick days
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or leave, pension or other retirement benefits, or any other benefits under
employee benefit plans. Broker will make not deductions from the fees paid to
XxxxXxxxx.xxx under this Agreement for any federal, state or local taxes. It
shall be XxxxXxxxx.xxx's obligation to make all income tax and other tax
withholdings and payments with respect to the Named Employee.
9. INSURANCE.
XxxxXxxxx.xxx shall provide evidence of the following insurance prior to
commencing the performance of services under this Agreement:
(a) worker's compensation, employers' liability, and occupational disease
insurance meeting statutory minimum requirements;
(b) commercial general liability insurance, including bodily injury,
property damage, and products and completed operations, personal injury, and
advertising injury with the following limits of liability: (i) per occurrence of
$1,000,000, and (ii) general aggregate of $2,000,000; and
(c) automobile liability insurance covering all owned, hired and non-owned
vehicles with a $1,000,000 combined single limit per occurrence.
10. TERMINATION.
Should XxxxXxxxx.xxx or Broker (a) default in the performance of any of its
material obligations under this Agreement for a period of thirty (30) days after
the other has given written notice of such default, or (b) dissolve or become
insolvent or subject any of its property to the appointment of a receiver or
make an assignment for the benefit of creditors, then the other may upon written
notice terminate this Agreement. A waiver of default shall be in writing signed
by both XxxxXxxxx.xxx and Broker and shall not be a waiver of any other or of a
subsequent default. Broker may terminate this Agreement upon written notice to
XxxxXxxxx.xxx in the event that Broker's Client no longer desires the services
of XxxxXxxxx.xxx, but Broker shall use its reasonable commercial efforts to
cause Broker's Client to give XxxxXxxxx.xxx at least fifteen (15) days notice of
termination without cause.
11. OTHER SERVICE.
At the Broker's request, other services not specified in this Agreement
will be furnished by the Named Employee on a reasonable efforts basis at
XxxxXxxxx.xxx's applicable rates and terms then in effect.
12. ACCESS TO FACILITIES.
XxxxXxxxx.xxx shall have reasonable access to Broker's Client's facilities
to provide services under this Agreement, and Broker shall provide a safe place
in which to perform such services.
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13. CONFIDENTIALITY.
Broker's Client may provide XxxxXxxxx.xxx with technical data, trade
secrets, plans for products or services, client or supplier lists, marketing
plans, software, source code for software, financial documents or data,
inventions, processes, technology, designs, and other information and documents
of Broker's Client or Broker's Client's clients ("Confidential Information").
Confidential Information shall not include information that: (a) is or becomes
generally available to the public other than as a result of a disclosure by
XxxxXxxxx.xxx; (b) is or becomes available to XxxxXxxxx.xxx on a
non-confidential basis; and (c) is independently developed by the XxxxXxxxx.xxx
without the use of the Confidential Information. XxxxXxxxx.xxx will not disclose
and will keep confidential the Confidential Information, except to employees,
consultants, or agents to whom disclosure is necessary to render services under
this Agreement and who shall be bound by the terms hereof, using the same care
as it uses to maintain the confidentiality of its most confidential information.
XxxxXxxxx.xxx may disclose Confidential Information pursuant to any
governmental, judicial, or administrative order, subpoena, or discovery request,
provided that XxxxXxxxx.xxx uses reasonable efforts to notify Broker's Client of
such order, subpoena, or discovery request so that Broker's Client may seek to
make such disclosure subject to a protective order or confidentiality agreement.
14. GENERAL.
Neither Broker nor XxxxXxxxx.xxx shall be responsible for any failure to
perform any obligation under this Agreement due to strikes or causes beyond its
reasonable control; this provision does not affect Broker's obligation to make
payment that is otherwise due.
XxxxXxxxx.xxx and Broker shall be entitled to assign this Agreement and its
rights hereunder to the purchaser of all or substantially all of its assets, or
to the surviving entity in any merger or consolidation.
This Agreement, including all Schedules, constitutes the entire agreement
between XxxxXxxxx.xxx and Broker with respect to the furnishing by XxxxXxxxx.xxx
of Services by the Named Employee. No provision of this Agreement shall be
deemed waived, amended, or modified by either party unless such waiver,
amendment or modification be in writing signed by the party against whom it is
sought to enforce the waiver, amendment or modification.
Any notice required or permitted to be given by either party under this
Agreement shall be in writing and shall be sent by personal or overnight
commercial delivery to the address specified by each party herein.
In any action or proceeding to enforce any of the terms or provisions of
this Agreement or on account of the breach hereof, the party prevailing shall be
entitled to recover all its expenses, including, without limitation, reasonable
attorney's fees.
The terms and conditions of this Agreement, including all Schedules, shall
prevail notwithstanding any variance with the terms and conditions of any order
submitted by Broker for XxxxXxxxx.xxx services.
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IN WITNESS WHEREOF, the parties to this Agreement have caused it to be duly
executed by their respective duly authorized officers or representatives on the
day and year first above written.
Xxxxxxxxx Benefit Corporation, d/b/a Broker:_____________________________
XxxxXxxxx.xxx
By:____________________________________ By:_________________________________
Date:__________________________________ Date:_______________________________
Schedule A
To Agreement between Xxxxxxxxx Benefit Corporation, d/b/a XxxxXxxxx.xxx
("XxxxXxxxx.xxx") and _________________ ("Broker"), dated _________________,
1999.
The Services, Broker's Client on behalf of whom the Services will be performed,
the commencement date and duration of the Services, the name of XxxxXxxxx.xxx's
employee who will perform the Services, the prices, terms of payment and other
details of such Services referred to in the Agreement (the "Agreement") to which
this Schedule A is attached are as follows:
Description of the Services to be performed by the Named Employee:
Broker's Client:
The commencement date and duration of the Services:
XxxxXxxxx.xxx employee assigned to perform the Services (the "Named Employee"):
Rate:
Overtime rate:
Invoicing frequency:
Payment terms:
IN WITNESS WHEREOF, the parties hereto each acting with proper authority have
executed this Schedule A, on the date written above.
Xxxxxxxxx Benefit Corporation, d/b/a Broker:_____________________________
XxxxXxxxx.xxx
By:____________________________________ By:_________________________________
Name:__________________________________ Name:_______________________________
Title:_________________________________ Title:______________________________
Date:__________________________________ Date:_______________________________
