EXHIBIT 10.2
STRATOS - Centrex SERVICES AGREEMENT
This AGREEMENT is entered into this 23rd day of May, 2003, by Stratos
Product Development, LLC. ("Stratos"); a Washington company, and Centrex, Inc
("Client"); an Oklahoma company. Stratos is a design and engineering services
provider. Client desires to engage Stratos to perform certain services on the
terms set forth below. Therefore, in consideration of the mutual covenants and
agreements herein, the parties agree as follows:
1. Services To Be Performed
a. Stratos will perform services for Client on projects as the Client
and Stratos from time to time may mutually agree. For each project undertaken by
Stratos under this Agreement, the parties will enter into a written Statement of
Work in the form attached hereto as Exhibit A. The Statement of Work will
describe the work to be performed (the "Services"), the tangible or intangible
property to be delivered by Stratos to Client (the "Deliverables") and the
schedule for delivery thereof. A Statement of Work must be signed by both
parties and upon signing is incorporated herein by this reference.
b. In each instance, no expansion or alteration of the level or nature
of a Statement of Work will be permitted without prior written agreement signed
by both parties.
c. This Agreement shall control over any conflicting provisions of any
Statement of Work, or purchase order or other communication submitted by Client
unless expressly agreed to in writing signed by Stratos. Stratos hereby objects
to any such additional terms. If Client's purchase order for a Statement of Work
contains a "not-to-exceed" spending limit, and Stratos expressly agrees to such
limit, then: (i) Stratos agrees not to perform Services that cause the total of
its invoices to exceed such limit; and (ii) Client agrees that such limit may
materially hinder Stratos' ability to deliver the Deliverables and complete the
Services under a Statement of Work and excuses any nonperformance as a result
thereof. . If Client's purchase order for a Statement of Work contains a "fixed
bid" spending limit, and Stratos expressly agrees to such limit, then: (i)
Stratos agrees not to perform Services that are not expressly within scope of
this Statement of Work without a prior mutually accepted Change of Scope
agreement; and (ii) Stratos will invoice on a set payment schedule indicated on
the purchase order related to specific deliverables and/or performance
milestones.
2. Assignment of Personnel and Performance of Services
a. The number of personnel Stratos assigns to perform Services will be
determined by mutual agreement of the parties. Stratos, in its sole discretion,
will select those personnel assigned to perform the Services.
b. Unless otherwise specified in a Statement of Work, all Services will
be performed at the offices of Stratos at times to be decided by Stratos in its
sole discretion. Stratos will provide to its employees and agents all materials,
equipment and services that they may need to perform their normal professional
duties. Client will provide any specialized materials and equipment as may be
necessary to complete the Services, including any unusual computer systems or
equipment, and all devices and software that are specific to the Client. Should
Client
require, and Stratos agree, that during some portion of the term of this
Agreement one or more of Stratos' employees or agents work at the Client's
offices, then Client will provide all necessary materials, equipment and
services needed for Stratos' employees or agents to perform their normal
professional duties at that location. Stratos agrees to make its personnel
available to the Client, at the Client's expense, for meetings or other such
purposes to which the parties may mutually agree.
c. All Deliverables conveyed hereunder will be deemed accepted by
Client if not rejected in writing within 15 days after submission to Client. If
Client timely rejects a Deliverable, Client will provide detailed information
for the rejection and Stratos will correct such Deliverable within a mutually
accepted reasonable period of time and resubmit the same to Client for
acceptance in accordance with the provisions of this Paragraph 2c.
d. Client understands that any successful implementation of the
Services and Deliverables depends on substantial and active participation from
Client. Client assumes complete responsibility for management of and control
over its employees, facilities and operations. The execution and follow through
by Client and its employees necessary to keep the Services and Deliverables on
schedule will be the responsibility of Client.
3. Expenses and Deposit
a. Except where other expenses are set forth in a Development Plan,
Client agrees to reimburse Stratos for all reasonable expenses, including travel
and lodging, incurred on Client's behalf, and such other major expenses as shall
be pre-authorized by Client (collectively, the "Charges").
b. Stratos will invoice Client monthly for Charges. Client will pay all
invoices in full within thirty (30) days of receipt of such invoices. All
materials, not including travel, expenses directly incurred by Stratos under a
Statement of Work will have a 20% accounting fee applied when invoiced. Late
payment of any amount due is a material breach of this Agreement and will be
grounds for Stratos to discontinue performance hereunder. Any amounts not paid
by the due date will be subject to a finance charge at a rate equal to the
lesser of 1% per month or the maximum rate allowed by law. Payment of such
finance charge will not excuse or cure Client's breach or default for late
payment. c. Client will provide Stratos with a deposit as outlined in this
Section 3c at initiation of a Statement of Work. For projects less than sixty
(60) days in duration a 50% deposit is required at initiation of a Statement of
Work. For projects longer in duration than sixty (60) days a deposit equal to
the maximum amount of charges incurred under a Statement of Work during a thirty
(30) day period of time is required at initiation of a Statement of Work.
Deposits are used to retain personnel, for initial Services start up costs,
cover premature termination of a Statement of Work, and to bridge material
expenses incurred by Stratos between invoicing cycles. At completion of a
Statement of Work and acceptance of final deliverables the deposit will be
applied to final charges and any remaining amount will be returned to Client.
c. Stratos will, if so requested by Client and at Client's expense,
prepare and submit at monthly intervals written reports describing work
completed during the period, work that is contemplated for the next period, and
progress against any estimate(s) that have been prepared.
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4. Ownership of Work Products and Technology
a. All ownership, copyright, trade secrecy, and other rights in the
Deliverables, designs, programs, works, inventions, improvements, discoveries,
processes or other properties made or conceived by Stratos relating to the
Services and/or Deliverables, or which result from any Services performed by
Stratos for Client, or which make use of any of Client's equipment, supplies,
facilities or trade secrets (the "Rights and Properties"), other than the
Stratos' Property (as defined below), shall be the rights and property solely of
Client. To the extent any such works may be considered "works made for hire"
under the Copyright Act, they are hereby agreed to be works made for hire;
otherwise, Stratos assigns all such rights, title and interests to Client.
Stratos will assist Client as reasonably requested, and at Client cost for
Stratos' time and expenses, during and after the term of this Agreement to
further evidence and perfect Company's rights in such property, including
without limitation, the execution of additional instruments of conveyance and
assisting Client with applications for patents or other registrations.
b. Stratos retains certain moral rights to the Deliverables and any
work performed by it hereunder, as follows: Stratos shall retain the right to
attribution and to claim authorship for any Deliverables and work, the right to
receive credit and to be known as the original authors of the Deliverables
and/or work, and the right to prevent the use of Stratos' name as the author of
any work which Stratos did not create.
c. Notwithstanding any provision herein to the contrary, Client will
have no rights in any Services or Deliverables until such time as all Charges
arising out of a Statement of Work are paid in full, including interest charges
in paragraph 3.c.
5. Term and Termination
a. The term of this Agreement will commence upon the effective date of
the initial Statement of Work (the "Effective Date"). Unless earlier terminated
as provided herein, this Agreement will terminate without any notice or other
action of either party if there is no Statement of Work is in effect for more
than twelve (12) consecutive months.
b. This Agreement may be terminated by Client with or without cause
upon thirty (30) days notice to Stratos. No termination or expiration of this
Agreement will release Client from the obligation to pay any sum which may then
be owing Stratos or from Client's obligation to perform any other duty or
discharge any other liability incurred prior to such expiration or termination.
c. This Agreement may be terminated by Stratos upon the occurrence of
one or more of the following: (1) if Client seeks protection under any
bankruptcy law; (2) if Client is in material default of any provision hereof
(other than as to the payment of Charges when due) and such default is not cured
within thirty (30) days after giving notice; provided, however, that where such
breach is subject to cure but it is not practicable to effect such cure within
such thirty (30) days, the cure period will be extended provided that Client is
diligently working to effect such cure; and (3) immediately, if Client fails to
pay Charges when due.
d. If Client terminates prior to completion of a Statement of Work,
Stratos will be entitled, as full compensation for Services performed, to keep
any payments already received and
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to Charges incurred up to and including the date of receipt of the termination
notice or the termination date specified in such notice, whichever is later. If
Services are provided on a fixed fee basis, Stratos will be entitled, as full
compensation for Services performed, to keep any payments already received and
to receive a pro rata portion of the next payment due, which will be determined
by allocating an equal portion of such payment to each day between the date the
previous payment was earned and the date on which the next payment is scheduled
to be made. 6. Warranty and Limitation of Liability
a. Stratos will perform Services in a professional and workmanlike
manner, and will make all reasonable efforts to ensure the reliability and
proper functionality of the Services and Deliverables. Stratos disclaims all
other warranties. Client sole recourse is to retain Stratos as necessary, under
the terms of this Agreement, to cure any defects or deficiencies that it may
perceive in the Services or Deliverables.
b. EXCEPT AS PROVIDED IN THIS SECTION 6, STRATOS DOES NOT MAKE, AND
SPECIFICALLY EXCLUDES AND DISCLAIMS ALL OTHER WARRANTIES, WHETHER EXPRESS,
IMPLIED, OR ARISING BY TRADE USAGE OR COURSE OF DEALING, INCLUDING WITHOUT
LIMITATION, ANY AND ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A
PARTICULAR PURPOSE, TITLE, NONINFRINGEMENT, AND IMPLIED INDEMNITIES.
c. IN NO EVENT WILL STRATOS BE LIABLE FOR ANY INDIRECT, CONSEQUENTIAL,
OR INCIDENTAL DAMAGES (INCLUDING BUT NOT LIMITED TO DAMAGES FOR LOST PROFITS,
BUSINESS INTERRUPTION, AND LOSS OF BUSINESS INFORMATION) ARISING OUT OF THE USE,
INABILITY TO USE OR FAILURE OF THE SERVICES OR DELIVERABLES, EVEN IF STRATOS HAS
BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT WILL THE LIABILITY
OF STRATOS (1) UNDER ANY PROVISION OF THIS AGREEMENT, (2) FOR ANY DAMAGES CAUSED
BY A DEFECT OR FAILURE OF DELIVERABLES, OR (3) AS DETERMINED BY A COURT OF
PROPER JURISDICTION HOLDING ANY OF THE ABOVE WARRANTIES OR DISCLAIMERS OF
WARRANTIES INADEQUATE OR INVALID, EXCEED THE AMOUNT ACTUALLY PAID BY CLIENT TO
STRATOS UNDER THE APPLICABLE STATEMENT OF WORK. AMOUNTS PAID BY CLIENT TO
STRATOS UNDER SEPARATE STATEMENTS OF WORK WILL NOT BE AGGREGATED TO ENLARGE OR
EXTEND THIS LIMIT.
7. Confidential Information.
a. Stratos acknowledges that Client's business and the business of the
Client's Affiliates, depends on the preservation of their trade secrets and
other confidential information (the "Confidential Information"). For purposes of
this Agreement, "Affiliates" means any entity currently existing or subsequently
organized or formed that directly or indirectly controls, is controlled by or is
under common control with the Client or the person who control the Client,
whether through the ownership of voting securities, by contract or otherwise.
Stratos agrees to protect and preserve as confidential all of the Confidential
Information of the Client or its Affiliates at any time known to Stratos or in
Stratos' possession or control (whether wholly or partially developed by Stratos
or provided to Stratos) with no less than the diligence, care and efforts which
a prudent owner would use to protect its own confidential information. Stratos
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shall neither use nor allow others to use any of the Confidential Information
for any purpose other than for the sole benefit of Client or its Affiliates
unless specifically approved in writing in advance by an officer of Client.
Stratos shall further assure that its personnel are advised of and observe the
obligations of Stratos set forth in this Agreement.
b. Upon termination or expiration of this Agreement or at Client's
request, Stratos shall return all Confidential Information, including any copies
or reproductions thereof in Stratos' possession or control and shall cease using
any Confidential Information.
c. The obligations of this Section 7 shall not be affected by
termination or expiration of this Agreement and shall be binding upon Stratos
during the term plus a period of one (1) year beyond the termination or
expiration this Agreement. The obligations of this Section 7 shall not apply to
any information that is (i) in the public domain at the time of its disclosure
or thereafter becomes part of the public domain through no fault of Stratos or
(ii) known to Stratos before receipt from Client, as shown by prior written
records or other probative evidence, or (iii) has been rightfully received by
Stratos from a third party authorized to make such disclosure, or (iv) was
independently developed or conceived by Stratos.
8. Non-solicitation.
a. Both Parties acknowledge and agree that during the term of this
Service Agreement, and for a period of twelve (12) months thereafter, it will
not directly or indirectly entice, influence, solicit or otherwise encourage an
employee, agent or contractor to terminate his or her employment or engagement
with the other party. Both Parties acknowledge and agree that such conduct is
detrimental to each other's business success, interferes with actual and
prospective economic relationships, and causes immediate and irreparable damage
to operations.
b. Both Parties acknowledge that each devote substantial time and
resources to recruit, hire, and train its personnel to perform highly skilled
and technical duties and functions. Each Party acknowledges and agrees that this
is a costly and time-consuming endeavor and that the amount of resources and
time invested to recruit, hire and train its highly skilled and technical
employees, agents or contractors is difficult to calculate. In recognition of
the foregoing, the parties agree that should either party, during the term and
within twelve (12) months following termination of this Agreement, directly or
indirectly employ or maintain a separate relationship with a current or former
employee, agent or contractor, who during his or her employment or engagement
with either party performed Services for either party, then said party shall
first pay the other Two Hundred Fifty Thousand Dollars ($250,000.00) for each
current or former employee, agent or contractor that it employs or with whom it
maintains a separate relationship.
9. Indemnification. During and after the term of the Project, Client at its own
expense will defend, indemnify and hold harmless Stratos and its officers,
directors and employees from and against any actual or alleged third party
action, claim, loss, liability or damages based on or relating to the failure of
Client to comply with any safety regulations, safety codes or safety labeling
requirements relating to the Project, provided that Stratos promptly notifies
Client in writing of any such claim. Client shall have the right to control the
defense of all such claims, lawsuits and other proceedings and related
settlement negotiations. In no event shall Stratos settle any such claim,
lawsuit or proceeding without Client's prior written approval.
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10. General
a. Neither party shall have the right to assign this Agreement without
the prior written consent of the other party; provided that either party shall
have the right to assign this Agreement to any person or entity that acquires or
succeeds to all or substantially all of such party's business or assets upon
written notice to the other party.
b. No modification of or amendment to this Agreement, nor any waiver of
rights under this Agreement, shall be effective unless in writing signed by the
party to be bound. To the extent any terms of this Agreement, a Statement of
Work or a Client purchase order are deemed to be inconsistent, the terms of this
Agreement shall govern. If any provision of this Agreement is determined by a
court of competent jurisdiction to be invalid or unenforceable, such
determination shall not affect the validity or enforceability of any other part
or provision of this Agreement. This Agreement shall be deemed to be jointly
prepared by the parties hereto and neither party shall claim the benefit of any
rule of interpretation which would cause ambiguities in this Agreement to be
interpreted against the party who drafted it.
c. All notices permitted or required will be in writing and will be
given in person, by confirmed facsimile or by first class mail delivered to the
party at the respective facsimile number or address below or to a substituted
facsimile number or address of which a party may inform the other by notice.
d. The provisions of Sections 3.c., 4, 5.d., 6, 7, 8, 9 and 10 shall
survive termination or expiration of this Agreement.
e. This Agreement shall be governed by the laws of the State of
Washington without regard to its conflicts of law principles. Any dispute
regarding the interpretation or validity of or otherwise arising out of this
Agreement shall be subject to the exclusive jurisdiction of the Washington state
courts in and for King County (or, if there is federal jurisdiction, the U.S.
District Court for the Western District of Washington).
f. If an action at law or in equity or other proceeding is commenced to
enforce or interpret the terms of this Agreement, the prevailing party in such
action will be entitled to recover reasonable attorney's fees and costs, in
addition to any other relief to which the party may be entitled.
g. A party is excused from its obligations under this Agreement to the
extent such party (or a third party upon whom such party relies) sustains a loss
by strike, fire, flood, windstorm, accident, act of God or other similar or
dissimilar calamity or occurrence out of the reasonable control of such party
which materially interferes with the conduct of such party's business,
regardless of whether or not any such loss has been insured.
IN WITNESS WHEREOF, the parties have executed or caused to be executed this
Agreement as of the date first written above.
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STRATOS PRODUCT CENTREX, INC.
DEVELOPMENT, LLC
By: /s/ XXXX X. XXXXXXX By: /s/ X.X. XXXXXXXX, XX.
Its: Director of Business Name: Xxxxxx X. Xxxxxxxx, Xx.
Development Its: CEO
Address: Market Place Tower PH-B Address: 0000 X. Xxxxxx Xxx.
0000 Xxxxx Xxxxxx Xxxxx, XX 00000
Xxxxxxx, XX 00000
Attn: Attn: X.X. Xxxxxxxx
Ph: Ph: 000-000-0000
Fax: Fax: 000-000-0000
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Attachment A
Form of Statement of Work
Statement of Work No. ___
This Statement of Work relates to services to be accomplished by
Stratos Product Development Group, Inc. ("Stratos") on a time and
materials basis under the terms and conditions of the SERVICES
AGREEMENT dated --- by and between Stratos and
("Client").
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1. General Nature of Services:
2. Scope of Work:
[a. Description b. Deliverables]
3. Estimated Labor Cost:
[a. Anticipated Personnel Category Hours]
4. Estimated Time Schedule:
Estimates do not represent a guarantee of, or limitation on, amounts to be
invoiced or time of completion. Work-related travel and out-of-pocket expenses
are not included in these estimates. Any additional services, requested by
Client and agreed to by Stratos but not described above, will be on a time and
materials basis at the rates provided in the then current Stratos Hourly Rate
Schedule.
AGREED AND ACKNOWLEDGED AS OF .
-----------------------------------------
STRATOS PRODUCT DEVELOPMENT GROUP, Inc. Client
Signed: Signed:
Name:
Name: Title:
Title:
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