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Exhibit 10.7
CONSULTING SERVICES AGREEMENT
Agreement No. _________
THIS AGREEMENT is made and entered into as of the 23rd day of May, 1997 by and
between Xxx X. Xxxxxx, Inc. ("Weston" or the "Company"), a Pennsylvania
corporation having its principal offices at 0 Xxxxxx Xxx, Xxxx Xxxxxxx,
Xxxxxxxxxxxx 00000 and GlobeQuest International, Inc. ("Consultant") whose
principal address is 0000 Xxxxxxx Xxxx, Xxxxxxxxx XX 00000.
WHEREAS, Weston is in the business of providing environmental engineering and
consulting services to private industry and governmental clients; and
WHEREAS, Consultant, through its representative, Xxx Xxxxxx, is in the business
of providing organizational, executive, strategic, marketing and administrative
consulting services, and is, by reason of its knowledge, education and expertise
capable of performing the services described herein; and
WHEREAS, Weston's Board of Directors desires, and Consultant has agreed, that
Consultant provide certain consulting services as set forth hereinafter to the
Company.
NOW THEREFORE, in consideration of the premises and the mutual promises
contained herein, and other good and valuable consideration, the parties agree
as follows:
ARTICLE I. SCOPE OF CONSULTING SERVICES.
1. THE SERVICES. Subject to the terms and conditions of this Agreement,
Consultant's representative, Xxx Xxxxxx, shall provide strategic review and
analysis of the Company's current operations, strategic focus, business
development activities and market position, in order to make recommendations to
the Company's Board of Directors to improve the Company's cost-effectiveness and
profitability (such activities are hereinafter referred to as the "Services").
The specific scope and extent of the Services shall be determined by the
Company's President and Chief Executive Officer. Consultant shall prepare such
written reports and documentation relating to the Services as it may be directed
by the
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President and Chief Executive Officer to perform. Xx. Xxxxxx, as Consultant's
agent, shall be bound by the obligations imposed on Consultant under this
Agreement.
2. TIME COMMITMENT. Consultant shall commit such time and resources of Xx.
Xxxxxx as shall be necessary to perform the Services as requested by the
President and Chief Executive Officer of Weston.
3. AUTHORIZED WESTON REPRESENTATIVE. Consultant shall report to the
President and Chief Executive Officer of Weston (the "Weston Representative")
or such other person as the Weston Board of Directors shall designate. All
services performed by Consultant shall be at the direction of the Weston
Representative.
4. RESTRICTION ON DELEGATION. All work hereunder shall be performed
exclusively by Xx. Xxxxxx on behalf of the Consultant except that Consultant
may delegate work with the advance written approval of the Weston
Representative.
ARTICLE II. TERM; TERMINATION.
The initial term ("Initial Term") of this Agreement shall be for the period
commencing May 23, 1997 and ending December 31, 1997. Thereafter the term may be
extended for successive month-to-month periods upon the mutual agreement of the
parties. Each monthly extension of the term shall be evidenced by a writing
executed by the parties. After the Initial Term, this Agreement may be
terminated by either party upon giving thirty (30) days' written notice to the
other. Weston may terminate this Agreement during the Initial Term or any
extension thereof if Consultant breaches this Agreement or is unable to perform
hereunder. In such event, Consultant shall be paid for the number of days
Consultant has performed through the date of termination. The provisions of
Articles V, VI, VIII and XIII shall survive the expiration or any termination of
this Agreement.
Notwithstanding anything herein to the contrary, nothing herein shall be deemed
a guaranty that Weston will request Consultant to perform the Services for any
minimum number of days.
ARTICLE III. CONSULTING FEE.
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1. CONSULTING FEE. Weston shall pay Consultant a consulting fee in the
amount of Two thousand Dollars ($2,000.00) for each full day in which Xx.
Xxxxxx provides the Services. A "full day" is defined as at least eight (8)
hours in one calendar day. The consulting fee shall be pro-rated for any day
in which Xx. Xxxxxx provides the Services for less than a full day.
2. EXPENSES. In the event Xx. Xxxxxx is required to travel in connection with
the performance of services hereunder, Weston shall reimburse Consultant for
such expenses incurred for travel and related food and lodging as are incurred
at the request of, or with the prior approval of Weston. Reimbursement of such
expenses shall be made in accordance with applicable Weston policies, and on the
same basis as though Consultant were an employee of Weston.
Except with respect to the purchase of meals or refreshment for persons other
than Xx. Xxxxxx where such purchase has a legitimate business purpose relating
to the Services, no entertainment is authorized under this Agreement and no
entertainment expenses shall be reimbursed to Consultant hereunder without the
prior written authorization of the Weston Authorized Representative.
In consideration for the fees and reimbursement paid by Weston hereunder,
Consultant hereby releases Weston from any and all claims for fees and/or
expenses incurred by Consultant prior to the commencement of the Initial Term
hereof.
ARTICLE IV. INVOICING AND PAYMENT.
1. INVOICES. Consultant shall submit invoices for completed services in a
form acceptable to Weston within ten (10) days following the end of each
month in which Xx. Xxxxxx provides the Services. Invoices shall include the
following detail:
a. This Agreement number, Consultant's name, dates of service, and
number of hours worked each day by Xx. Xxxxxx.
b. A detailed list of expenses in a format reasonably acceptable to
Weston, together with copies of original documentation of such expenses.
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Original invoices shall be submitted together with one copy to the Weston
Representative who shall approve such invoice upon reasonable satisfaction that
the Services have been satisfactorily performed.
2. PAYMENT. Payment shall be issued to Consultant within 30 days after receipt
and approval of each invoice. Weston shall have no obligation to reimburse
Consultant for any expenses incurred, or any services performed, in violation of
any law, Weston Business Ethics Policy or in contravention of this Agreement.
ARTICLE V. WORK PRODUCT.
1. OWNERSHIP OF WORK PRODUCT. All information, including, but not limited to,
all designs, processes, manuals, reports, computer data and related information,
first produced by Consultant for Weston in performing the Services shall be the
sole property of Weston. All such information shall be considered proprietary
information and shall be retained and used solely in accordance with the
provisions of this Agreement. To the extent any such information comprises work
susceptible to protection under applicable copyright laws, Consultant agrees
that such work shall be deemed "work made for hire" hereunder. In the event that
such work is determined not to be "work made for hire," this Agreement shall
operate as an irrevocable assignment by Consultant to Weston of the copyright in
the work, including all right, title and interest therein, in perpetuity.
2. INVENTIONS AND PATENTS. All inventions, improvements and discoveries, whether
patentable or not, first conceived, developed or reduced to practice by
Consultant, either alone or with others, in the course of the performance of the
Services, or as a consequence of Consultant's receipt of information hereunder,
shall be the sole property of Weston. All such inventions, improvements and
discoveries shall be promptly disclosed to Weston in writing. At Weston's
request and expense, Consultant agrees to (i) assist Weston in making
application for patents on such inventions, improvement and discoveries in the
United States and any foreign countries (ii) assign all such applications to
Weston or its designee without further charges, (iii) assist Weston in the
prosecution of any patent applications and the enforcement of any resulting
patents and (iv) execute any and all documents necessary for the accomplishment
of the foregoing.
ARTICLE VI. CONFIDENTIALITY.
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1. PROPRIETARY INFORMATION. All information received by Consultant in the course
of performing the Services, other than information publicly available or
publicly disclosed shall be deemed "Proprietary Information." Consultant shall
receive and retain all Proprietary Information in confidence and shall not
disclose such information to any person without the express written
authorization of Weston. Consultant shall use Proprietary Information solely for
the purpose of performing his obligations hereunder and for no other purpose.
Upon termination of this Agreement, Consultant shall promptly return all
Proprietary Information to Weston, and will, if requested by Weston, execute a
certificate warranting that all Proprietary Information has been returned to
Weston in accordance with this Agreement.
2. RELATIONSHIP WITH WESTON. Consultant shall be deemed an independent
contractor for all purposes hereunder.
3. NON-SOLICITATION OF EMPLOYEES. Consultant shall not, directly or indirectly,
from the date of this Agreement until two (2) years after termination of this
Agreement, solicit, hire or otherwise induce any Weston employee to leave the
employment of Weston; nor shall Consultant induce any Weston employee to become
an employee of, or otherwise become associated with, any company or business
other than Weston, without the written approval of Weston. This paragraph shall
apply to inducement, hiring or solicitation of any Weston employee regardless of
position.
4. NON-SOLICITATION OF CLIENTS. Consultant will not, directly or indirectly,
from the date of this Agreement until two (2) years after termination of this
Agreement, solicit the trade or patronage, in competition with Weston, of any
Weston clients or of any prospective clients with whom Weston has pending
proposals. This restriction shall only apply to clients or prospective clients
with whom Consultant had direct or indirect contact during the pendency of this
Agreement.
ARTICLE VII. CONFLICTS OF INTEREST
1. REPRESENTATION CONCERNING CONFLICTS. Consultant hereby warrants and
represents that to the best of its knowledge and belief there are no relevant
facts or circumstances which could give rise to an actual or potential conflict
of interest under this Agreement, and that Consultant has disclosed to Weston
all information having any relevance to an actual or
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potential conflict of interest. Xx. Xxxxxx'x interest in Consultant has been
disclosed to Weston's Board of Directors, which has approved Weston's engagement
of Consultant under this Agreement.
2. DISCLOSURE. Consultant agrees that if an actual or potential conflict of
interest is discovered after execution of this Agreement, Consultant will make
full disclosure to Weston in writing. This disclosure shall include a
description of actions which Consultant has taken or proposes to take to avoid,
mitigate or neutralize the actual or potential conflict, and all actions taken
for such purposes shall be in consultation with Weston.
3. COMMUNICATIONS WITH GOVERNMENTAL OFFICIALS. In performing the Services,
Consultant shall not communicate with any officer, representative, employee,
elected official or agency of the government of any country, with the exception
of the United States, or any subdivision thereof on behalf of Weston without
having first obtained the written consent of the Weston Representative.
4. GOVERNMENT EMPLOYMENT. If Consultant or any person performing work for
Consultant hereunder has been a United States government employee within the
past three (3) years, Consultant agrees to furnish Weston all relevant
information regarding any potential conflict of interest.
ARTICLE VIII. RECORDS RETENTION.
Consultant shall retain all records documenting amounts invoiced to Weston under
this Agreement in legible form for a period of five (5) years from date of final
payment hereunder. Consultant authorizes Weston to inspect and audit these
records during business hours upon prior notice to Consultant. Except for
documentation of amounts invoiced to Weston described above, upon the
termination or expiration of this Agreement, Consultant shall immediately
deliver to Weston all documents relating in any way to the performance of the
Services.
ARTICLE IX. TAXES.
Consultant shall have sole responsibility for payment of all Federal, state
(unless it provides Weston with a Non-taxable Transaction Certificate), local
and other sales, use, income and all employment and other taxes applicable to
the fees paid to Consultant
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hereunder. Consultant agrees to indemnify and hold Weston harmless from and
against any and all claims and liability relating to such taxes.
ARTICLE X. INDEPENDENT CONTRACTOR.
For all purposes in performing its services, Consultant shall be deemed to be an
independent contractor and as such, shall not be entitled to any benefits
applicable to the employees of Weston. Consultant declares that it is engaged in
an independent business, that similar services are provided for other clients
from time to time, and Weston is not Consultant's sole and only client.
Consultant's authority to bind or speak for Weston shall be limited by Weston's
By-Laws and applicable law, and further limited and defined by the authority
granted by the Authorized Representative and the Board of Directors from time to
time.
ARTICLE XI. WARRANTY.
Consultant warrants and represents that: (a) it possesses the expertise,
capability, equipment and personnel to properly and professionally perform the
services; (b) to the extent it is required to do so, it is properly and legally
licensed to perform the services; (c) it shall at all times in the performance
of such services comply with all applicable laws, ordinances and regulations;
(d) it shall perform all services in a good, workmanlike, professional,
efficient and non-negligent manner; and (e) it does not, as of the date of this
Agreement, and during the period of performance under this Agreement, shall not
represent any competitor of Weston without first fully disclosing to Weston in
writing the scope of work and the name of such competitor and obtaining Weston's
written consent in advance of such representation.
ARTICLE XII. INDEMNIFICATION.
Consultant agrees to indemnify and hold harmless Weston, its officers,
directors, agents and employees for any loss, including reasonable and actual
attorney's fees, costs or damages that Weston may incur as a result of the
negligent acts or omissions of the Consultant or the Consultant's employees or
agents.
Neither party shall be liable to the other for incidental, indirect or
consequential damages, except where such damages arise out of the gross
negligence or willful misconduct of the other party.
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ARTICLE XIII. ASSIGNMENT.
This Agreement may not be assigned by Consultant, either in whole or in part,
without the prior written consent of Weston. Any attempted or purported
assignment shall be null and void and without force and effect.
ARTICLE XIV. DISPUTES.
Any dispute arising under this Agreement not settled by agreement of the
parties, including disputes arising as a result of termination, shall be decided
by litigation in a court of competent jurisdiction. Pending any decision,
appeal, suit, or claim pursuant to this Article, Consultant shall proceed
diligently with the performance of the work authorized under this Agreement.
ARTICLE XVI. SEVERABILITY.
Any provision or part of this Agreement held to be void or unenforceable under
any law or by any court shall be deemed stricken, and all remaining provisions
shall continue to be valid and binding upon the parties. The parties may reform
or replace such stricken provision or part thereof with a valid and enforceable
provision which expresses the intent of the stricken provision.
ARTICLE XVII. GOVERNING LAW.
This Agreement shall be governed by and interpreted in accordance with the laws
of the Commonwealth of Pennsylvania, exclusive of the choice of law rules
thereof, as if wholly to be performed therein.
ARTICLE XVIII. ENTIRE AGREEMENT. This Agreement constitutes the sole and
exclusive agreement of the parties hereto and supersedes any prior
understandings or written or oral agreements between the parties. This
Agreement may be amended only by
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a writing signed by the Authorized Representative of each party.
IN WITNESS WHEREOF, intending to be legally bound hereby, the parties have
caused this Agreement to be executed by their duly authorized representatives.
GLOBEQUEST XXX X. XXXXXX, INC.
INTERNATIONAL, LTD.
(CONSULTANT)
BY:______S/____________ BY: _____S/____________
NAME: XXX XXXXXX NAME: XXX XXXXXX
TITLE: PRESIDENT TITLE: COO
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