MASTER CONSULTING SERVICES AGREEMENT
This Master Consulting Services Agreement (this "Agreement" which term shall
also include all Work Orders) is made this 28 day of July, 1999 between
INTEGRATED INFORMATION SYSTEMS, INC. ("IIS") located at 0000 X. Xxxxxxxxxxxx
Xxxxxxx, Xxxxx 000, Xxxxx, Xxxxxxx 00000 and XxxXx.xxx, a wholly owned
subsidiary of DEERBROOK PUBLISHING, INC. ("Client") located at 0000 Xxxxx 00xx
Xxxxx, Xxxxxxx, XX 00000. This Agreement sets forth the terms and conditions
under which IIS will provide services and/or materials to Client.
ARTICLE I DEFINITIONS.
The following terms shall have the following meanings in this Agreement and all
attached Work Orders:
1. "Project" shall mean the totality of services and materials IIS
provides to Client pursuant to a Work Order.
2. "Scope of Work" shall mean the specific services to be rendered by IIS
to Client in furtherance of a Project as defined in a Work Order.
3. "Work Order(s)" shall mean the document(s) that: (i) is numbered for
identification; (ii) details the Scope of Work to be performed by IIS
including all applicable deliverables or other materials to be
provided; and (iii) specifies the applicable hourly rate or fixed
price for performing the Scope of Work. A new Work Order will be
required for each new Project. Each Work Order shall be effective,
incorporated into, and form a part of this Agreement when executed by
IIS and Client.
ARTICLE II STAFFING.
1. IIS agrees to furnish consultants qualified to render services in
accordance with the Scope of Work set forth in a Work Order. IIS will
use reasonable efforts to ensure the continuity of its consultants
assigned to a Project but shall have discretion to replace or change
members of its staff working on a Project provided that replacement
personnel do not result in added cost to Client or delay in a Project.
ARTICLE III FEES.
1. IIS will xxxx Client at the rate(s) or in the amount specified in the
applicable Work Order for services and materials rendered by IIS.
2. Client shall be invoiced for expenses incurred by IIS in rendering
services to Client including travel, meals, hotels, car rentals,
special insurance required by Client, mileage, and other applicable
expenses. Any individual expense in excess of $300.00 shall require
the prior approval of Client. IIS's fees do not include any taxes,
duties, tariffs or other governmental charges or expenses imposed in
connection with this Agreement and such taxes shall be billed to
Client.
3. IIS's standard hours of operation are Monday through Friday (excluding
all holidays) 8:30 am. to 5:30 p.m. For Work Orders performed on an
hourly basis, services rendered by IIS on holidays or during
non-standard hours of operation shall be billed at one and one-half
the rates set forth in the applicable Work Order. Work during
nonstandard hours is subject to the prior approval of Client.
ARTICLE IV BILLING AND PAYMENT FOR SERVICES.
1. IIS shall send a written invoice to Client for services rendered and
materials provided every two weeks. Invoices are due upon receipt.
Invoices not paid in full within thirty (30) days of the invoice date
shall accrue interest at the rate of one and one-half percent (1.5%)
per month until paid in full except as to those invoices (or portions
of invoices) under dispute as set forth in subparagraph 2 below. Any
amount outstanding for more than forty-five (45) days after the date
of invoice shall constitute a material breach of this Agreement by
Client.
2. If Client has objection to a charge set forth in an invoice, Client
shall send written notice of its objection to IIS, and the reasons
therefor, within twenty (20) days of the date of the invoice being
objected to. Upon receipt of an objection, IIS shall undertake to
provide Client with back-up documentation to support its charge for
the services
and/or materials in dispute. If Client does not object to an invoice
in writing within twenty (20) days of the invoice date, Client shall
have accepted the charges set forth therein. Any disputed amounts
shall not affect payment of non-disputed charges and expenses.
ARTICLE V TERMINATION.
1. Client shall have the right to terminate this Agreement and/or any
Work Order upon fifteen (15) days' prior written notice to IIS. Client
agrees to pay IIS for services performed up to the effective date of
termination. Notice of termination of any Work Order shall not be
considered notice of termination of this Agreement unless specifically
stated in the notice.
2. IIS shall have the right to terminate this Agreement and/or any Work
Order upon fifteen (15) days' prior written notice to Client provided
that IIS shall provide all services and materials to Client that
Client has paid for prior to IIS's notice of termination.
3. IIS shall have the right to terminate this Agreement and/or suspend
its services upon three (3) days' prior written notice to Client if
any IIS invoices remain unpaid thirty (30) days after the invoice
date.
4. Either party shall have the right to terminate this Agreement upon a
material breach by the other party.
ARTICLE VI NON-SOLICITATION.
1. IIS has invested significant resources in the hiring, education,
development, and training of its employees. Accordingly, Client agrees
that during the term of this Agreement, and for a period of twelve
(12) months following the termination of this Agreement, Client will
not directly or indirectly: (i) hire or employ any of IIS's employees,
consultants, or staff; (ii) hire or employ any former employee of IIS
unless such former employee has not been employed by IIS for at least
six (6) months; (iii) make an offer to or solicit any of IIS's
employees to terminate their employment with IIS; (iv) solicit or
receive any services from any of IIS's employees excluding the
services such employees are rendering to Client in connection with
this Agreement; or (v) use, solicit, or receive the services of any
former IIS employee if such employee leaves the employment of IIS and
thereafter becomes employed by any third party that is rendering
services to Client.
2. The parties agree that a breach of this provision will result in
damages to IIS that are difficult to ascertain with certainty.
Accordingly, in the event of a breach of this provision, IIS shall
have the right to:
(a) Apply for a temporary restraining order, temporary injunction,
permanent injunction, or other provisional remedy (collectively
"Provisional Remedy") in any court or forum of its choosing. If
IIS does choose to commence an action in court, the parties waive
their right to a trial by jury;
(b) Receive fixed monetary damages for violation of this
non-solicitation provision in the amount of three (3) times the
annual salary IIS was paying to such employee(s) before a
violation of this provision was discovered by IIS;
(c) Collect all costs and damages associated with a violation of this
provision within two (2) weeks of a court's or arbitrator's
finding/order that Client violated this non-solicitation
provision (the "Finding"). The damages will be due even if there
exists in such suit (or other action) issues that were not
resolved by the Finding. Such damages shall be provable by
affidavit of an IIS officer or employee with pertinent knowledge.
A Finding can be made following: (i) any evidentiary hearing;
(ii) any motion to dismiss; (iii) any hearing in connection with
IIS's application for a Provisional Remedy; (iv) any motion for
summary judgment; (v) a trial, arbitration, or other similar
dispositive hearing; or (vi) at any other time after suit is
initiated by IIS.
ARTICLE VII CONFIDENTIALITY.
1. The parties agree to retain in confidence all information transmitted
to it by the other party pursuant to this Agreement that the
disclosing party identifies as being proprietary and/or confidential
or that, by the nature of the circumstances surrounding the
disclosure, ought in good faith to be treated as proprietary and/or
confidential ("Confidential Information"). Confidential Information
includes, but is not limited to: business plans and designs; customer,
vendor, and partner lists; this Agreement and all Work Orders
(including IIS rates); technical, financial and business information
and models; proposed business deals, reports , plans, and market
projections; and
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software programs, data, source code, and other technical information.
The parties will not make use of such Confidential Information except
under the terms and during the existence of this Agreement. Neither
party will disclose to any third person any Confidential Information
without the express consent of the other party.
2. Confidential Information does not include information that is: (a)
aleady in the possession of the receiving party or is known by the
receiving party at the time of receiving the same without breach of
any duty owed to the disclosing party; (b) publicly known through no
wrongful act of the receiving party; (c) rightfully received from a
third party, provided the receiving party complies with any
restrictions imposed by any such third party; or (d) disclosed by the
receiving party pursuant to a requirement of a court order,
governmental agency or other applicable law or regulation or disclosed
in connection with any dispute resolution under this Agreement.
ARTICLE VIII LIMITATIONS.
1. IIS makes no warranties with respect to products provided or services
rendered pursuant to this Agreement and disclaims all warranties,
express or implied, including, without limitation, warranties of
merchantability, fitness for a particular purpose, title, and
non-infringement.
2. IIS shall not be liable for any incidental, special, punitive,
indirect, or consequential damages, lost or inaccurate data, business
interruption, or lost profits under any contract, tort (including
negligence), strict liability, breach of warranty, or other legal or
equitable theory, even if the remedies provided for in this Agreement
fail of their essential purpose and even if IIS has been advised of
the possibility or probability of such damages. IIS's liability to
Client shall not exceed the amount actually paid by Client to IIS
pursuant to the applicable Work Order giving rise to the dispute.
ARTICLE IX NOTICE.
1. Any notice or other communication required under this Agreement shall
be deemed sufficiently made on the date of delivery if delivered in
person or by overnight commercial courier service with tracking
capabilities with costs prepaid, or five (5) days after the date of
mailing if sent by certified first class U.S. mail, return receipt
requested and postage prepaid, at the address of the parties set forth
below or such other address as may be given from time to time under
the terms of this notice provision:
IIS: Integrated Information Systems, Inc.
Attention: Xxxxx Xxxxxx
0000 Xxxx Xxxxxxxxxxxx Xxxxxxx, Xxxxx 000
Xxxxx, Xxxxxxx 00000-0000
Client: Deerbrook Publishing
Attention: Xx. Xxx Xxxxxxxxxx
0000 Xxxxx 00xx Xxxxx
Xxxxxxx, XX 00000
ARTICLE X INDEMNIFICATION.
1. IIS agrees to defend Client against, and pay the amount of any adverse
final judgment (or settlement to which IIS consents) resulting from
third party claim(s) that the computer code or materials (other than a
commercial/off-the-shelf product or pre-existing work of Client)
developed by IIS and provided to Client pursuant to the terms of this
Agreement ("Developments") infringe any United States copyright;
provided that IIS is notified promptly in writing of the claim, has
the opportunity to assume sole control over its defense or settlement,
and Client provides reasonable assistance in the defense of the same.
2. In the event IIS or Client receives information concerning a copyright
infringement claim related to the Developments, IIS may, at its
expense, either: (i) procure for Client the right to continue to use
the alleged infringing Developments; or (ii) replace or modify the
Developments to make them non-infringing, in which case Client shall
thereupon cease use or distribution of the alleged infringing
Developments.
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3. IIS shall have no liability for any infringement claim based on
Client's: (i) specifications, directions, or requirements provided to
IIS for such Developments; (ii) manufacture, marketing, distribution,
or use of any Developments after written notice that Client should
cease such activity due to such a claim; (iii) combination of any
Developments with a software or hardware product, program, or data not
supplied by IIS; or (iv) adaptation, enhancement, or modification of
any Developments not performed by IIS.
4. Client agrees to defend IIS against, and pay the amount of any adverse
final judgment (or settlement to which Client consents) in connection
with any claims arising under Section 3 above, or claims arising out
of the distribution, marketing, or use of the Developments; provided
that Client is notified promptly in writing of any such claim, and has
the opportunity to assume sole control over its defense or settlement,
and IIS provides reasonable assistance in the defense of the same.
5. Client shall indemnify and hold IIS harmless from and against any and
all claims or causes of action against IIS to the extent such claim or
action is based on a claim that an IIS employee or consultant
performing services at the offices or premises of Client was subject
to any physical injury, mental injury, discriminatory conduct,
harassment, or any other actionable activity by Client, an employee or
consultant of Client, or any third party on Client's premises. Client
shall pay the costs and damages, including attorneys' fees, in respect
of such claim provided the Client is given notice in writing of such
claim. Client shall control the defense of such action.
6. This Article XI shall survive any termination of a Work Order or this
Agreement.
ARTICLE XI MISCELLANEOUS PROVISIONS.
1. Entire Agreement. This Agreement is a complete and exclusive statement
of all the terms and conditions of the agreement among the parties
with respect to the subject matter hereof. This Agreement supersedes
and terminates any previously existing negotiations, understandings,
and agreements that may exist between the parties. This Agreement
shall not be varied, supplemented, qualified or interpreted by any
prior course of dealing between the parties hereto or by any usage of
trade.
2. Headings. Headings and captions in this Agreement are for convenience
only and are not to be used to interpret this Agreement.
3. Severability. If any provision of this Agreement is found to be
illegal or unenforceable, then, notwithstanding such finding, this
Agreement shall remain in full force and effect and such provision
shall be deemed stricken or modified to the minimum extent necessary
to make it enforceable; provided, however, that the intent of the
parties when entering into this Agreement is maintained.
4. Assignment. This Agreement and any rights or obligations hereunder
shall not be assigned by contract or operation of law without the
prior written agreement of both parties except in such case where all
or substantially all of the assets or stock of a party to this
Agreement is sold to a third party and such third party agrees in
writing to be bound by the terms and conditions of this Agreement.
Upon prior consent of Client, IIS may use subcontractors to perform
services for Client in connection with a Project.
5. Amendment and Waiver. Except as otherwise expressly provided herein,
this Agreement may only be amended or modified in a writing signed by
both parties. The failure of either party to enforce its rights under
this Agreement at any time for any period shall not be construed as a
waiver of such rights and shall not be deemed a waiver of any right of
either party to insist upon the strict performance of this Agreement.
6. Independent Contractor. IIS shall act as an independent contractor and
shall be responsible for all social security, unemployment, workers'
compensation, and other withholding taxes for all of its employees.
7. Force Majeure. Except for Client's obligation to pay for
services/materials rendered by IIS, if either party is prevented from
complying, either totally or in part, with any of the terms or
provisions of this Agreement by reason of fire, flood, storm, strike,
lockout, or other labor trouble, riot, war, rebellion, accident or
other acts of God, then upon written notice to the other party, the
requirements of this Agreement, or the affected provisions hereof to
the extent affected, shall be suspended during the period of such
disability. During such period, the party not prevented from complying
may seek to have its needs (which would otherwise be met hereunder)
met by
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others without liability hereunder. The party prevented from complying
shall make all reasonable efforts to remove such disability within
thirty (30) days of giving such notice.
8. Compliance with Laws. IIS and Client shall comply with all applicable
laws and regulations with respect to this Agreement. Client
acknowledges that the services provided by IIS and the related
software and other materials are subject to United States export
control laws and regulations and Client confirms that it will not
export or reexport them, directly or indirectly, either to: (i) any
countries that are subject to U.S. export restrictions (currently
including, but not necessarily limited to, Cuba, Iran, Iraq, Libya,
North Korea, Syria, and Sudan), or to any national of any such
country; or (ii) any end-user whom Client knows or has reason to know
will utilize them in the design, development, or production of
nuclear, chemical, or biological weapons; or (iii) any end-user who
has been prohibited from participating in U.S. export transactions by
any federal agency of the U.S. government.
9. Governing Law. This Agreement shall be construed pursuant to the laws
of the State of Arizona. Unless waived by IIS, the exclusive
jurisdiction and venue of any action related to this Agreement,
including the enforcement of any arbitration award, shall be the
Maricopa County Superior Court, Arizona and the parties submit to the
jurisdiction and venue of such court for the purpose of any such
action.
10. Arbitration. Any dispute, claimed breach, or controversy arising out
of or in relation to this Agreement shall be settled by binding
arbitration in Phoenix, Arizona in accordance with the then-prevailing
Commercial Arbitration Rules of the American Arbitration Association
by a single arbitrator mutually agreed upon by both parties, and
applying Arizona state law without regard to the conflicts of law
provisions thereof, or if applicable, U.S. federal law. The
arbitration award shall be final and binding upon the parties.
Notwithstanding the foregoing, either party shall have the right to
seek and obtain appropriate equitable and Provisional Remedies
exclusively in Maricopa County Superior Court, Arizona.
11. Remedies. The rights and remedies of a party set forth herein with
respect to the failure of the other to comply with the terms of this
Agreement (including, without limitation, rights of termination of
this Agreement) are not exclusive, the exercise thereof shall not
constitute an election of remedies, and the aggrieved party shall in
all events be entitled to seek whatever additional remedies may be
available in law or in equity.
12. Attorneys' Fees. The prevailing party in any action that arises out of
this Agreement shall be entitled to recover costs and expenses
including, without limitation, reasonable attorneys' fees.
13. U.S. Government Restricted Rights. Any Developments that Client
licenses or acquires under this Agreement for or on behalf of the
United States of America, its agencies and/or instrumentalities, are
provided to Client with Restricted Rights. Use, duplication, or
disclosure by the Government is subject to restrictions as set forth
in subparagraph (c)(l)(ii) of The Rights in Technical Data and
Computer Software clause at DFARS 252.227-7013 or subparagraphs (c)(1)
and (2) of the Commercial Computer clause at 48 CFR 52.227-19, as
applicable. Contractor/manufacturer is IIS, Inc. 0000 X. Xxxxxxxxxxxx
Xxxxxxx, Xxxxx, XX 00000-0000.
14. Counterparts. This Agreement may be executed in two (2) or more
counterparts, each of which shall be deemed an original and all of
which together shall constitute one instrument.
15. Successors and Assigns. Upon mutual consent, the provisions of this
Agreement shall inure to the benefit of, and be binding upon, the
parties and their respective successors and assigns and transferees by
operation of law, whether or not any such person or entity shall have
become a party to this Agreement.
IN WITNESS WHEREOF, the parties hereto have duly executed this
Agreement:
/s/ Xxxxx X. Xxxxxx /s/ Xxx Xxxxxxxxxx
------------------------------------ ----------------------------
Integrated Information Systems, Inc. Deerbrook Publishing
By: Xxxxx X. Xxxxxx By: Xxx Xxxxxxxxxx
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WORK ORDER #001
IN CONNECTION WITH THE MASTER CONSULTING SERVICES AGREEMENT
PROJECT NAME: XXXXX.XXX WEB INITIATIVE DEVELOPMENT -- PHASE 1
This Work Order is made pursuant to the Master Consulting Services Agreement
(the "Agreement") effective on July 20, 1999 between Integrated Information
Systems, Inc. ("IIS") and XxxXx.xxx, a wholly owned subsidiary of Deerbrook
Publishing, Inc. ("Client") and is incorporated therein by reference.
Capitalized terms not otherwise defined have the meanings provided in the
Agreement.
1. SERVICES. IIS shall perform the Scope of Work identified below for Client.
Any dates provided are estimates only.
In order to meet an extremely aggressive time frame for phase 1, IIS will
provide Time-and-Materials consulting and coding services to build an
XxxXx.Xxx web-site infrastructure.
IIS anticipates performing some or all of the following services for Client
relating to Site Server Commerce Edition Development & Integration for
Client's web initiative.
* Provide consulting for the Site Server Architecture.
* Project Management.
* Provide consulting for infrastructure services.
* General web consulting (i.e. interface design, graphic design, etc.)
* Overall marketing strategies as appropriate to the e-Commerce
initiative
* Provide development services for the following:
1. A common "site Look and Feel metaphor" (primary priority)
2. Deerbrook co-brand e-Commerce PUBLIC site (primary priority)
3. XxxXx.Xxx e-Commerce Catalog (base E-commerce site) also referred
to as the "PUBLIC" site (primary priority)
4. XxxXx.Xxx e-Commerce PRIVATE site (primary priority)
5. Provide a common auction (secondary priority)
A formal project effort will be initiated after August 16, 1999, to expand
the basic functionality of the system to meet all of the client's
requirements. The full IIS life cycle design and development process, with
defined documents and project plans, will be followed for all successive
phases of this project.
2. RATES.
The hourly rates shown below shall be applicable to this Work Order only
for the Scope of Work set forth above.
All services performed by IIS in connection with the Scope of Work shall be
performed by IIS at an hourly rate of $165.00 per hour.
IIS invoices shall be directed to Client's representative for payment at
the address shown below.
Xxxxxx X. Xxxxxxxxxx
XxxXx.xxx c/o Deerbrook Publishing, Inc.
0000 Xxxxx 00xx Xxxxx
Xxxxxxx, XX 00000
Work Order #001 -- Page 1
3. COMMENCEMENT DATE. Services under this Work Order will begin on or about 20
August 1999 and will continue until the Scope of Work is finished by IIS.
THEREFORE, the parties have executed this Work Order in duplicate
originals.
INTEGRATED INFORMATION SYSTEMS, Inc. CLIENT
0000 X. Xxxxxxxxxxxx Xxxx. #000 XxxXx.xxx, a wholly owned subsidiary
Xxxxx, Xxxxxxx 00000-0000 of Deerbrook Publishing, Inc.
0000 Xxxxx 00xx Xxxxx
Xxxxxxx, Xxxxxxx 00000
By: /s/ Xxxxx X. Xxxxxx By: /s/ X. Xxxxxxxxxx
--------------------------------- ---------------------------------
Signature Signature
Xxxxx X Xxxxxx X. Xxxxxxxxxx
------------------------------------ ------------------------------------
Name (Print) Name (Print)
V.P. Business Development President, XxxXx.xxx
------------------------------------ ------------------------------------
Title Title
28-July-99 7/29/99
------------------------------------ ------------------------------------
Effective Date Date
Work Order #001 -- Page 2
