The Summit Group, Inc.
Agreement for Consulting Services
To: The Summit Group, Inc.
0000 Xxxxxx Xxxxx Xxxxxxx
X.X. Xxx 0000
Xxxxxxxxx, XX 00000-0000
Xxxxxxx Xxxxxxxxxxx
2 The Mart
00000 Xxx Xxxxxx Xxx. Xxxxxxx Xxxxx
Xxxxxx, XX 00000
The Customer and The Summit Group, Inc. agree that the following terms and
conditions shall govern in all cases when The Summit Group furnishes
assistance to the customer in the installation, development, modification,
and use of data processing procedures.
Services
Agreement shall cover all assistance performed by The Summit Group
consulting personnel at the Customer's request, including, but not limited
to, special studies, education and training, systems/application analysis,
design and development, programming, conversion and implementation planning,
and installation evaluation. These services may be performed at either the
Customer's or The Summit Group's premises.
Term
This Agreement is effective from the date on which it is accepted by The
Summit Group and shall remain in force until terminated by the Customer upon
one month's prior written notice or by The Summit Group upon three months'
prior written notice. Completion of any specific services or Customer's
failure to order additional services hereunder shall not terminate this
Agreement, it being the intent of the parties to leave this Agreement in
effect in the event of future services.
Charges
The Customer agrees to pay charges for these services, including one-way
billable travel time and reasonable actual expenses, in accordance with The
Summit Group's established rates in effect when the services are rendered.
All billing rates are subject to change by The Summit Group upon two months'
notice.
Charges will be invoiced bi-weekly for services rendered and will be payable
on receipt of invoice.
There sha 11 be added to any charges under this Agreement
amounts equal to any applicable taxes however designated,
levied, or based on such charges or on this Agreement or the
services rendered hereunder, including state and local
privilege or excise taxes based on gross revenue, and any
taxes or amounts in lieu thereof paid or payable by The
Summit Group in respect of the foregoing, exclusive of taxes
based on net income.
The Customer will reimburse The Summit Group for special or unusual expenses
incurred at the Customer's specific request.
Control and Supervision
Customer tasks on which Summit personnel assist shall remain under the
supervision, management, and control of the Customer.
Confidentiality
With respect to financial, statistical, and personnel data relating to the
Customer's business which is confidential, is clearly so designated, and
which is submitted to The Summit Group by the Customer in order to carry out
this Agreement The Summit Group will instruct its personnel to keep such
information confidential by using the same care and discretion that they use
with similar data which The Summit Group designates as confidential.
However, The Summit Group shall not be required to keep confidential any
data which is or becomes publicly available, is already in The Summit
Group's possession, is independently developed by The Summit Group outside
the scope of this Agreement or is rightfully obtained from third parties. In
addition, The Summit Group shall not be required to keep confidential any
ideas, concepts, knowhow, or techniques relating to data processing
submitted to The Summit Group or developed during the course of this
Agreement by Summit personnel or jointly by Summit and Customer personnel.
Rights in Data
All original written material including programs, tapes, listings, and other
programming documentation originated and prepared for the Customer pursuant
to this Agreement shall belong exclusively to The Summit Group. The Summit
Group grants to die Customer a nonexclusive, irrevocable, and royalty-free
license to use this material throughout the world in any of its locations or
in any of its Parent Corporation's locations.
The ideas, concepts, know-how, or techniques relating to data processing,
developed during the course of this Agreement by Summit personnel or jointly
by The Summit Group and Customer personnel shall be treated as follows: (a)
if made by Customer personnel, it shall be the property of the Customer; (b)
if made by Summit personnel, it shall be the property of The Summit Group
and The Summit Group grants to the Customer a non-exclusive, irrevocable,
and royalty-free license throughout the world; (C) if made jointly by
personnel of The Summit Group and the Customer, it shall be jointly owned
without accounting.
This Agreement shall not preclude The Summit Group from developing materials
which are competitive, irrespective of their similarity, to materials which
might be delivered to the Customer pursuant to this Agreement.
Personnel
In recognition of the fact that Summit personnel provided to the Customer
under this Agreement may perform similar services from time to time for
others, this Agreement shall not prevent The Summit Group from performing
such similar services or restrict The Summit Group from using the personnel
provided to the Customer under this Agreement The Summit Group will make
every effort consistent with sound business practices to honor the specific
requests of the Customer with regard to the assignment of its employees;
however, The Summit Group reserves the sole right to determine the
assignment of its employees. The Customer and The Summit Group agree that
they will not, during the term of this Agreement nor for a period of one
year after its termination, solicit for employment or employ, whether as
employee or independent contractor, each other's employees without written
consent.
Proposals for Service
Proposals for services to be rendered under this Agreement may be in
writing. No estimates are guaranteed in any way or to any extent by The
Summit Group and do not change this Agreement to a fixed price contract. The
Summit Group will, however, notify the Customer as soon as practicable if
the estimate win be exceeded, and the Customer may then terminate the
services, paying only for effort expended to that time. Charges will be paid
by the Customer at the established rates whether the charges are above or
below the estimate.
Proposals may include agreed to work schedules of Summit personnel. The
Summit Group will attempt to provide personnel in accordance with such
schedules subject to circumstances beyond The Summit Group's control.
Should a Summit employee be unable to perform scheduled services under this
Agreement because of illness, resignation, or other causes beyond The Summit
Group's reasonable control, The Summit Group will attempt to replace such
employee within a reasonable time, but The Summit Group shall not be liable
for failure to replace such employee within the schedule.
All schedules may be revised by mutual agreement.
Limitation of Liability
The Customer agrees that The Summit Group's liability hereunder for damages,
regardless of the form of action, shall not exceed the total amount paid for
those services associated with the specific task in question. This shall be
the Customer's exclusive remedy.
The Customer further agrees that The Summit Group will not be liable for any
lost profits, nor for any claim or demand against the Customer by any other
party.
No action, regardless of form, arising out of the services under this
Agreement may be brought by either party more than one year after the cause
of action has accrued, except that an action for nonpayment may be brought
within one year of the date of last payment.
The Summit Group does not make any express or implied warranties,
including, but not limited to, the implied warranties of merchantability and
fitness for a particular purpose, and no Year 2000 warranties.
In no event will The Summit Group be liable for consequential damages even
if The Summit Group has been advised of the possibility of such damages.
General
The terms of this Agreement may be modified by The Summit Group upon three
months' written notice to the Customer. The Customer may exercise his right
to terminate; otherwise, such modification shall become effective.
The term "this Agreement" as used herein includes any future written
amendments, modifications, or supplements made in accordance herewith.
The Customer acknowledges that he has read this agreement, understands it,
and agrees to be bound by its terms, and further agrees that it is the
complete and exclusive statement of the agreement between the parties, which
supersedes all proposals oral or written and all other communications
between the parties relating to the subject matter of this agreement.
The Agreement will be governed by the laws of the State of Indiana.
Accepted By:
The Summit Group, Inc.
/s/Xxxxx X. Xxxxxxxxx
Senior Vice President
Date 6/24/99
Client Name
0XxxXxxx.xxx, Inc.
/s/Xxxxxxx X. Xxxxxxxxxxx
President
Date 6/22/99
Addendum to Agreement for Consulting Services
This Addendum dated the 22nd day of June, 1999, to the Agreement for
Consulting Services of even date (the "Agreement") between The Summit Group,
Inc. ("The Summit Group') and 0XxxXxxx.xxx, Inc. ("Customer") sets forth the
terms and conditions which are in addition to and/or modifies those terms
and conditions set forth in the Agreement.
1. In the section entitled "Charges", make the following changes:
a. At the end of the first paragraph, after the words "services- are
rendered". add the words "which rates shall have been provided in advance.".
b. In the second paragraph, after the words "two months' ", insert the words
"Prior written".
2. In the section entitled "Confidentiality", in the last sentence, after
the words "concepts, know-how", delete the words "or techniques relating to
data processing submitted to The Summit Group or".
3. At the end of the section entitled "Rights in Data", add the following
new sentence:
"If outside the commercially developed software packages, The Summit Group
creates some original concept specific to Customer, which provides the
Customer with a competitive advantage, The Summit Group will not share this
concept with Customer's competitors for a period of six (6) months from the
launch of Customer's website, without the prior written consent of Customer.
The list of Customer's competitors is provided as Exhibit A.".
4. In the section entitled "Proposals for Service", the first paragraph, the
first sentence, after the word "Agreement", replace the word "may" with the
word "will".
5. In the section entitled "General", make the following changes:
a. Delete the first paragraph in its entirety and replace it with the
following:
"The terms of this Agreement may only be modified in writing and signed by
both parties.".
b. In the last paragraph replace the word "Indiana" with the word "California".
Except as expressly modified herein, the terms and conditions of the
Agreement are in full force and effect. In, the event of any conflict, the
terms and conditions of this Addendum shall prevail.
Accepted By:
The Summit Group, Inc.
/s/Xxxxx X. Xxxxxxxxx
Senior Vice President
Date 6/24/99
0XxxXxxx.xxx, Inc.
/s/Xxxxxxx X. Xxxxxxxxxxx
President
Date 6/22/99
Exhibit A
Xxxx.xxx
Xxxxxx.xxx
Lycos Auctions
Excite Auctions
Yahoo Auctions
Xxxxxxxxx.xxx
Xxxxxx.xxx
Xxxx.xxx
Auction Universe (Classified Ventures)
First Auction
Xxx.xxx
City Auction
Xxxxxx.xxx
Xxxxx.xxx
Xxxx.xxx
Microsoft Corporation
