ALTERNATIVE TECHNOLOGY RESOURCES, INC.
REGISTRATION STATEMENT ON
FORM SB-2
EXHIBIT 10.53
MASTER PROGRAMMING AGREEMENT
This is a master agreement between Liberty Mutual Insurance Company (LMIC), a
Massachusetts mutual insurance company having a principal place of business at
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ and 3NET SYSTEMS Inc. a Delaware
corporation having a principal place of business at ▇▇▇ ▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ (said 3NET SYSTEMS, Inc. hereinafter referenced as VENDOR).
LMIC from time to time seeks creation and delivery of custom programmed
software as well as maintenance and enhancement of existing internally created
software applications and desires the services of parties having the skills to
perform these tasks.
▇▇▇▇▇▇ has represented that VENDOR has the ability to supply personnel with
appropriate knowledge and skills because VENDOR maintains a staff
(Consultants), who provide professional services, including but not limited to,
advisory assistance, systems analysis and design, application development,
design and programming, project management, technical services, documentation
and technical writing, education and training.
Subject to the terms and conditions of this Agreement, LMIC is willing to
engage VENDOR to supply services and to pay for the same.
1. OBJECT
VENDOR will provide skilled temporary personnel as requested from time to
time by LMIC to render technical services and computer program creation and
maintenance. The skill sets, experience categories desired and range of rates
payable are set forth in Exhibit A which is annexed hereto and incorporated in
this Agreement by reference.
2. COMPENSATION
(a.) LMIC shall pay VENDOR at the rates provided in Exhibit A.
(b.) The parties agree that VENDOR is not entitled to travel or living
expenses.
(c.) ▇▇▇▇▇▇ agrees to keep such books and records as shall be required to
demonstrate the services rendered and the time spent on each component task
and LMIC reserves the right to audit the same.
(d.) Unless other ae net 30 days.
3. WARRANTIES
COMPUTER PROGRAMS
VENDOR shall clearly and without exception identify any proprietary computer
program or set of programs (all referenced hereafter as Development Tool) which
is or are used by VENDOR to develop or otherwise generate the source code for
any computer program developed under the Agreement. Further if a Development
Tool is in whole or in part embedded in or required for the execution of a
computer program delivered under the Agreement then VENDOR hereby grants a
non-personal, non-exclusive, royalty free, world-wide license to LMIC to use,
2
market or distribute without restriction those parts of the Development Tool
which are embedded in or necessary for the computer program to run.
SERVICES
Consultants shall employ best efforts for all services rendered hereunder.
Minimally all services shall be commercial quality consistent with the level of
expertise sought in each category.
MAINTENANCE OF CONFIDENTIALITY
VENDOR acknowledges and agrees that VENDOR shall have access to proprietary,
confidential business and financial information and plans of LMIC and other
third parties including but not limited to financial information or
intellectual property of third parties licensed to LMIC. VENDOR agrees that all
such information, plans and intellectual property shall be held in the
strictest confidence, that VENDOR shall not reveal the same to any third
parties, that VENDOR shall not make or retain any copies upon termination of
this agreement, nor except for the performance of services under this Agreement
make any use of such information, plans and intellectual property.
INFRINGEMENT
VENDOR warrants that the intellectual property rights of any entity not a
party to this agreement, including without limit or limitation copyrights,
patents, trade secrets or information
protected by contractually imposed disclosure or use restrictions, are not and
shall not be infringed or otherwise violated by VENDOR performance under this
Agreement.
NETWORK SECURITY
VENDOR understands that Consultants shall have limited access to a large,
complex private electronic communication and information network of the Liberty
Mutual Insurance Group. VENDOR understands this Network contains trade
secrets, business plans, proprietary or sensitive information of the Liberty
Mutual Insurance Group, customers of that Group, vendors and suppliers to the
Group, and private persons. Limited access is granted solely to allow VENDOR
to render services contracted under this Agreement. VENDOR agrees that any
Consultant having access to the Network by any means shall honor any
proprietary notices and comply with any restricted access or limited use
notices appearing defend, indemnify and hold harmless the Liberty Mutual
Insurance Group and its personnel from any loss, cost, claim, demand, damage,
liability or expense of any kind arising or related to any unauthorized access
or misuse of the Network or any unauthorized access or misuse of trade secrets,
business plans, proprietary or sensitive information. Authorized access occurs
when a Consultant makes use of Consultant's identification access codes or
passwords to link to the Network by electronic or telecommunications facilities
to perform services under this Agreement. Any other link to the Network is
unauthorized access. Authorized access and use of trade secrets, business
plans, proprietary or sensitive information
occurs when a Consultant reads, copies, publishes, reveals, transmits or acts
on trade secrets, business plans, proprietary or sensitive information or other
information that is provided to Consultant(s) or kept and used by Consultant(s)
under this agreement and only to the extent necessary to perform services under
this Agreement. For the purposes of this Agreement anything outside the scope
of authorized access and use is unauthorized access and misuse. Misuse and
unauthorized access also includes damage or alteration of any trade secrets,
business plans, proprietary or sensitive information stored on the Network.
SURVIVAL
VENDOR acknowledges and agrees that the foregoing obligations of this section
shall survive the termination or expiration of this contract. ▇▇▇▇▇▇ agrees to
inform in writing any person providing services under this Agreement of the
foregoing obligations of confidentiality; and VENDOR shall take such actions as
necessary or desirable to enforce the same.
3
4. OWNERSHIP
VENDOR acknowledges and agrees for itself and any person providing services
under this Agreement that all right, title and interest, including any
copyright or trade secret right, in
and to any written material related to any of Consultants services under this
Agreement including by way of example and not limitation any system or program
analysis, system and program documentation, and application program code, shall
be vested solely and exclusively in LMIC, and upon the expiration or
termination of this agreement for any reason VENDOR shall give LMIC all copies
of written materials pertaining to the projects undertaken for LMIC by ▇▇▇▇▇▇
and shall retain nothing. The term " written material " shall include by way
of example and not limitation any system or program analysis, system or program
documentation or computer program code of any kind created, conceived or
written in the course of VENDOR'S
performance under this Agreement and regardless whether in a form human
readable or machine readable and regardless whether stored in an electronic or
magnetic storage medium or on paper.
VENDOR shall execute any conveyance on demand of LMIC required or desirable
to carry into effect the aforesaid complete transfer of right, title and
interest. ▇▇▇▇▇▇ agrees to inform in writing any person providing services
under this Agreement of the foregoing obligations and allocation of rights; and
VENDOR shall take such actions as necessary or desirable to enforce the same.
5. STATUS
INDEPENDENT
(1) VENDOR acknowledges and agrees that VENDOR is an independent contractor.
(2) VENDOR agrees that services shall be performed by VENDOR supplied
personnel who have been adequately trained or otherwise selected by VENDOR for
the assignments after having determined that such personnel possess the skills
and qualifications for the assignment.
(3) VENDOR warrants that it has and shall continue to comply at all times
relevant to performance hereunder with all Federal, State and local laws and
regulations, including but not limited to those relating to minimum and
overtime wages and employment discrimination.
VENDOR warrants that it has and shall continue to comply at all times
relevant to performance hereunder with the provisions of the Immigration Reform
and Control Act of 1986 and any other similar or related law, rule or
regulation governing citizens of foreign countries in the United States.
(4) VENDOR shall at all times remain the employer of those personnel on
assignment to LMIC. VENDOR shall assume full responsibility for the payment of
all Federal, State and local taxes, income and otherwise and any contributions
imposed or required under any Federal or State laws regarding unemployment or
social security for those personnel on assignment to LMIC.
In addition, VENDOR shall maintain at its expense, Workers' Compensation
Insurance covering such personnel, which shall provide benefits no less than
those required by all applicable state laws. VENDOR shall also maintain, at
its expense, general liability insurance with a minimum general aggregate limit
of Two Million Dollars ($2,000,000) and an each occurrence limit of One Million
Dollars ($1,000,000). VENDOR shall also obtain a fidelity bond covering
personnel on assignment to LMIC if required by LMIC.
(5) As provided in paragraph 4 above, ▇▇▇▇▇▇ agrees to maintain and be
responsible for the workers' compensation insurance covering personnel on
assignment to LMIC. If any claim for workers' compensation benefits or awards
is asserted against LMIC by any VENDOR personnel or personal representative, in
the event of death, ▇▇▇▇▇▇ agrees to defend, indemnify and save LMIC harmless
with respect to the liability imposed upon LMIC in connection with such claims.
LMIC agrees to give immediate written notice of any such assertion or award to
VENDOR.
4
(6) VENDOR further acknowledges and agrees that neither VENDOR nor any
employee or agent of VENDOR shall be eligible for, nor shall participate in,
any retirement, health, disability, unemployment or other fringe benefit plan
or program applicable to employees of LMIC.
6. TERM & TERMINATION
(1) The term of this Agreement shall commence upon the date first set forth
below and the terms and conditions hereof shall remain in force perpetually
except that the rates set forth in Exhibit A shall be in force for one year
from the commencement date. Such rates shall automatically renew for
additional twelve month periods unless ninety (90) days prior to each
anniversary of the commencement date either party shall have issued a notice of
termination of all services under this Agreement or unless ninety (90) days
prior to each anniversary
VENDOR shall have proposed new rates which have been rejected by LMIC not
less than thirty (30) days prior to such anniversary. The foregoing
notwithstanding, and in consideration of ▇▇▇▇▇▇'s placing a first priority on
LMIC requests for personnel ahead of all other customers of VENDOR, the parties
have agreed as follows. At the end of the first six (6) month period from the
commencement date, and each six (6) month period thereafter, the actual rate
assigned to each Consultant shall be reviewed by both parties and may be
increased by mutual consent.
Any Consultants services under this agreement shall be terminable by LMIC
immediately for cause. In all other cases except as provided herein, LMIC may
terminate further services under this Agreement upon ten (10) days written
notice. Upon termination or expiration VENDOR shall surrender all written
material in accord with the provisions of this agreement.
(2) If LMIC is dissatisfied with any Consultant assigned to perform
services under this Agreement, LMIC shall have the right to discontinue
Consultant's services upon 24 hours notice ch event VENDOR will use its best
efforts to assign within two (2) weeks, another qualified person to complete
the assignment. In addition, if LMIC is dissatisfied with any Consultant and
as a result elects to discontinue Consultant's services within the first thirty
(30) days of a Consultant's assignment at LMIC, LMIC will be entitled to a
refund equal to fifty (50) percent of the Consultant's time billed to LMIC
within that thirty (30) day period.
(3) Employment Termination. Should an assigned Consultant terminate while
performing services for LMIC, VENDOR will use its best efforts to assign within
five (5) business days, another equally qualified person to complete the
assignment.
7. GENERAL AGREEMENTS
DISPUTES
The parties will attempt in good faith to resolve any controversy or claim
arising out of or relating to this agreement promptly by negotiations between
senior executives of the parties who have authority to settle the controversy.
The disputing party shall give the other party written notice of the dispute.
Within twenty days after receipt of said notice, the receiving party shall
submit to the other a written response. The notice and response shall include
a) a statement of each party's position and a summary of the evidence and
arguments supporting its position, and b) the name and title of the executive
who will represent that party. The executives shall meet at a mutually
acceptable time and place within thirty days of the date of the disputing
party's notice and thereafter as often as they reasonably deem necessary to
exchange relevant information and to attempt to resolve the dispute.
If the matter has not been resolved within sixty days of the disputing
party's notice, or if the party receiving said notice will not meet within
thirty days, either party may initiate mediation of the controversy or claim in
accordance with the Center for Public Resources Model Procedure for Mediation
of Business Disputes.
5
If the matter has not been resolved pursuant to the aforesaid mediation
procedure within sixty days of the initiation of such procedure, or if either
party will not participate in a mediation, the controversy shall be settled by
arbitration in accordance with the Center for Public Resources Rules for
Non-Administered Arbitration of Business Disputes, by three arbitrators, of
whom each party shall appoint one. The arbitration shall be governed by the
United States Arbitration Act, 9 U.S.C. Sections 1-16, and judgment upon the
award rendered by the Arbitrators may be entered by any court having
jurisdiction thereof. The place of arbitration shall be Boston, Massachusetts.
The arbitrators are not empowered to award damages in excess of actual damages,
including punitive damages.
All deadlines specified in this section may be extended by mutual agreement.
The procedures specified in this section shall be the sole and exclusive
procedures for the resolution of disputes between the parties arising out of or
relating to this Agreement; provided,
however, that a party may seek a preliminary injunction or other preliminary
judicial relief if in its judgment such action is necessary to avoid
irreparable damage. Despite such action the parties will continue to
participate in good faith in the procedures specified in this section. All
applicable statutes of limitation shall be tolled while the procedures
specified here are pending. The parties will take such action, if any, required
to effectuate such tolling.
LMIC shall provide written notice to:
President
3NET Systems, Inc.
▇▇▇ ▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
VENDOR shall provide written notice to:
Liberty Mutual Insurance Company
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇. ▇. 03801.
attn: Manager - Information Systems - Human Resources
AGREEMENTS REGARDING EMPLOYMENT
The parties acknowledge that from time to time Conf the other, then the
approached party may require the individual seeking such change to notify the
employer and receive an acknowledgment from the employer.
If LMIC'S Information Systems Department hires or independently and directly
contracts a Consultant supplied by VENDOR during the term or within ninety (90)
days of termination or expiration of a Schedule under which such person is or
has rendered services, then VENDOR'S sole, exclusive and complete remedy for
any claim, suit, damage, cost or expense arising from or related to any loss of
the Consultant's services, termination of an employment relationship,
interference with contract or any other cause of action whether in contract or
in tort shall be payment of the following sums:
Total Length of Service per Consultant
Month % of LMIC Annual Salary
1 and 2 20%
3 and 4 15%
5 and 6 10%
6
7 and beyond 0%
If VENDOR hires LMIC Personnel:
% of LMIC Annual Salary
At anytime the VENDOR is supplying Consultants 10%
INDEMNIFICATION
VENDOR shall defend, indemnify and hold harmless LMIC, its officers,
directors and employees and any of its affiliates from and against any and all
liabilities including but not limited to all liabilities or claims for bodily
injury and property damage, all other claims, demands, losses, costs, damages
or expenses, including reasonable attorney's fees regardless of the nature of
the same arising from VENDOR'S representations in this Agreement, the services
performed hereunder, VENDOR'S or VENDOR'S employee's or agent's acts or
failures to act pursuant to the performance of the services under this
Agreement or in any manner touching upon the relationship of the parties
arising from this Agreement. This indemnity obligation shall survive any
termination or expiration of this Agreement.
CHOICE OF LAW
The interpretation of this contract and the allocation of rights, duties,
responsibilities and obligations arising under the Agreement shall be governed
by the substantive law of the Commonwealth of Massachusetts.
REFORMATION
If any term or condition of this Agreement is found by a court of competent
jurisdiction to be illegal, unlawful or otherwise unenforceable the parties
agree that such term or condition shall be reformed as nearly as may be
possible to carry forth the intentions of the parties and that such illegality,
unlawfulness or unenforceability shall not act to void any other term or
condition of this Agreement nor to void the Agreement as a whole.
HEADINGS
The headings of the sections of this Agreement are for convenience of the
parties only, do not form part of the Agreement and shall not affect the
interpretation of this Agreement.
EFFECTIVE
This document is effective upon execution by the last of the parties to sign
and is material consideration for the acquisution of Consultants services
hereunder.
SUCCESSORS
This agreement is binding upon and shall inure to the benefit of the
successors in interest and assigns of the parties.
ENTIRE AGREEMENT
This Agreement and each Exhibit is the exclusive statement of the entire
agreement of the parties in regard to the subject matter hereof and supersedes
any and all other representations
oral or written and any other agreements between them.
7
The parties or their authorized representatives have read this agreement,
understand it and have executed as of the 9th day of October, 1996.
3NET SYSTEMS, Inc. LIBERTY MUTUAL INSURANCE COMPANY
By ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ By ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Vice President Vice President
8
EXHIBIT A
DEFINITION OF PROGRAMMING EXPERTISE AND COMPENSATION SCHEDULE
The levels of programming expertise required are:
Programmer: 2-4 years exp. - Responsible for programming and testing
assignments which involve maintenance of existing programs or development of
new programs. Participates in analysis, design, programming and modification
of programs for customer applications.
Programmer Analyst: 5-7 years exp. - Responsible for the initiation and design
of new applications and defining changes/problems with existing programs.
Designs and analyzes programs using technical skills in multi-functional areas.
Requires relatively complex programming and testing assignments and analysis
work.
Sr. Programmer Analyst: 7-9 years exp. - Responsible for the initiation and
design of new applications and defining changes/problems with existing
programs. Designs and analyzes programs using technical skills in
multi-functional areas. Requires complex programming and testing assignments
and analysis work.
Technical Analyst: 10+ years exp.- Designs and develops applications that are
of a broad scope and on multi-platforms. Provides technical expertise to a
project team and acts as a consultant to management. Accountable for hardware
and software evaluations and installations. Responsible for the development of
operating procedures within a specific application. Responsible for all
aspects of the development, implementation and maintenance of an assigned
project or system.
Technical Expertise Level Hourly Compensation
Cobol, PL/1 IMS DB/DC,
DB2, TSO, Telon, JCL Programmer $35 - 40
" Programmer Analysts $40 - 45
" Sr. P/A $45 - 50
" Techni, 4D, Mac Internals
Programmer $45 - 50
" Programmer Analysts $50 - 55
" Sr. P/A $60 - 65
" Technical Analyst $70 - 75
