MERCK & CO., INC.
PROFESSIONAL SERVICES AGREEMENT
THIS AGREEMENT is entered into this first day of October, 1994 between
MERCK & CO., INC., having a place of business at Xxx Xxxxx Xxxxx, Xxxxxxxxxx
Xxxxxxx, Xxx Xxxxxx 00000-0000 ("MERCK") and JUDGE TECHNICAL SERVICES, INC.,
having a place of business at Xxx Xxxx Xxxxx, Xxxxx 000, Xxxx Xxxxxx,
Xxxxxxxxxxxx 00000 ("VENDOR");
WHEREAS, VENDOR is in the business of providing computer
programming and consulting services; and
WHEREAS, MERCK wishes to obtain from VENDOR, subject to the terms and
conditions contained herein, certain computer programming and consulting
services;
NOW THEREFORE, in consideration of the mutual promises and undertakings
set forth herein, the parties agree as follows:
ARTICLE 1: SERVICES TO BE PROVIDED
1.1 The services set forth in the Merck Contractor Request Form are to be
provided to MERCK by VENDOR. The total fee due VENDOR for such services
is included in the fee referred to in Article 4.
ARTICLE 2: PROGRESS REPORTS
2.1 VENDOR will submit weekly progress reports to Merck's hiring managers,
if requested. All progress reports will be signed by VENDOR and shall
detail the status of VENDOR's performance since the preceding report
and the progress expected to be made in the next succeeding reporting
period.
2.2 VENDOR will submit quarterly reports to MERCK detailing the
professional services provided to MERCK. The quarterly reports will be
submitted in the form attached as Schedule A.
ARTICLE 3: INTELLECTUAL PROPERTY
3.1 VENDOR understands that any information provided by MERCK is the
exclusive proprietary property of MERCK and that the same must be
treated at all times in accordance with the confidentiality provisions
of this Agreement.
3.2 All ownership rights in and related intellectual property rights to any
deliverable, end product, work product, discovery, invention, idea,
know-how and/or technique, including but not limited to software and
data processing
material, developed by VENDOR in the course of performance of services
hereunder, or developed jointly by MERCK and VENDOR shall remain in or
are hereby assigned to MERCK. VENDOR shall furnish to MERCK. all copies
of any applicable source codes, drawings, plans, specifications and
data developed or produced under this Agreement. VENDOR will cooperate
with MERCK and execute such other documents as may be appropriate to
achieve the objectives of this section.
3.3 VENDOR shall not use, sell, sub-lease, assign, give or otherwise
transfer to any third party, any information or material provided to
VENDOR by MERCK or developed by VENDOR under or as a result of this
Agreement, except that VENDOR may provide said information to any of
its officers, employees and subcontractors who VENDOR requires to have
said information for fulfillment of VENDOR's obligations hereunder.
Each officer, employee and/or subcontractor to whom any MERCK
confidential information is to be disclosed shall be advised by VENDOR
of, and bound by the confidentiality and intellectual property terms of
this Agreement.
3.4 VENDOR shall, at all times, treat all information and material provided
to VENDOR by MERCK or developed by VENDOR under or as a result of this
Agreement in accordance with the confidentially provisions of this
Agreement.
3.5 All writings, including without limitation software program code, logic
diagrams, flow charts, procedural diagrams, maps and any documentation
related thereto, produced by VENDOR in the course of its work for MERCK
are considered works made for hire and the property of MERCK, including
without limitation any copyrights on the writings; but to the extent
any such writing, may not, by operation of law or otherwise, be works
made for hire, VENDOR hereby assigns and transfers to MERCK the
ownership of copyright in such works, whether published or unpublished.
VENDOR will cooperate with MERCK and execute such other documents as
may be appropriate to achieve the objectives of this section.
ARTICLE 4: PAYMENT AND FEES
4.1 Payment for all work to be performed under this Agreement shall be made
by MERCK to VENDOR thirty days from receipt of invoice. Said payment
shall be inclusive of all goods and services provided by VENDOR
hereunder, and all other rights, taxes, goods and services to be
provided under this Agreement, and MERCK shall not be liable to VENDOR
for any other or additional fees unless expressly agreed to un writing.
Any taxable portion of services will be separately stated along with
the applicable tax.
4.2 VENDOR agrees that the fees and expenses for the personnel provided
hereunder shall be as set forth in Schedule B, provided that where
Schedule B specifies a range of fees, then the fee shall be as agreed
in writing between VENDOR and MERCK, within the limits specified in
such range. VENDOR further agrees that MERCK shall be given a discount
on all fees for services rendered hereunder un the current Calendar
Quarter, based upon the amount paid to VENDOR for the preceding four
Calendar Quarters under this and any other agreement between VENDOR and
MERCK for computer programming services under Merck's "Preferred Vendor
Program", as provided in Schedule B. For the purpose of the foregoing,
Calendar Quarter shall mean the three month periods ending March 31,
June 30, September 30 and December 31 each year.
4.3 VENDOR will invoice by the tenth day of each month for the previous
month's billable hours. The use of separate invoices for each contract
employee will not be allowed. Invoices shall be submitted to designated
MERCK invoice administrators. VENDOR shall folw the consolidated
invoicing sample attached as Schedule C.
4.4 VENDOR agrees that the amount due VENDOR for personnel provided under
any existing agreement between VENDOR and MERCK for computer
programming services under MERCK's "Preferred Vendor Program" shall be
as specified in Schedule B, effective January 1, 1995, and all such
agreements are hereby amended accordingly. Notwithstanding the
foregoing, all such fees shall at all times be counted toward the
discount referred to in the last two sentences of Article 4.2.
ARTICLE 5: VENDOR'S STAFF
5.1 ln the performance of this Agreement, VENDOR shall at all times act as
and be deemed an independent contractor. Nothing in this Agreement
shall be construed to render VENDOR or any of its employees, agents or
officers, an employee, joint venture, agent, or partner of MERCK.
VENDOR is not authorized to assume or create any obligations or
responsibilities, express or implied, on behalf of or in tile name of
MERCK. It is understood that the employees, methods, facilities and
equipment of VENDOR shall at all times be under VENDOR's exclusive
direction and control.
5.2 Neither MERCK nor VENDOR shall use the other's name for any commercial
purpose without the other party's prior written consent.
5.3 VENDOR's employees assigned to the MERCK account who will be on-site
shall comply with MERCK's health and safety policies, including MERCK's
no smoking policy, and other applicable MERCK policies while on-site.
5.4 VENDOR is responsible for and shall pay all charges for its staff or
employees' salary, insurance, taxes and all other costs, benefits or
expenses, including those arising from injury arising out of the
performance of this Agreement. VENDOR agrees to comply with any
Federal, State or Local withholding requirements applicable to its
staff or employees. In accordance with this Agreement, VENDOR shall
indemnify, defend and hold harmless MERCK against and such salary,
insurance, taxes, benefits, costs or expenses incurred by reason of the
performance of services for MERCK by VENDOR's staff or employees,
without regard to any outside party's description of the employment
status of such person.
5.5 Holidays to be observed for the period covered by this agreement shall
be un accordance with the (personnel assigned) site specific holiday
list. No payment shall be due to VENDOR for holidays unless services
are provided on those holidays.
5.6 MERCK will instruct the VENDORS on the method for screening applicants
and their resumes to ensure that they meet the minimum qualifications
for the job.
5.7 The VENDORS are responsible for submitting to MERCK hiring managers
only resumes of qualified applicants. To ensure that applicants are
qualified, the vendor must conduct personal interviews which may
include validated testing and thoroughly screen resumes to verify the
applicants' claimed educational backgrounds and work experiences. If
applicants do not meet the minimum qualifications for the jobs, the
reasons for submitting their resumes must be provided to the hiring
managers, in writing.
5.8 MERCK shall have the right to require VENDOR to replace any of its
contact employees hereunder if such persons are not providing
satisfactory services. If VENDOR has submitted to MERCK a resume with
respect to such person which VENDOR knows, or reasonably should have
known through the performance of a thorough screening and background
check, contains false information, then MERCK shall have no obligation
to pay any compensation or reimbursement of expenses to VENDOR with
respect to such person.
ARTICLE 6: INSURANCE
6.1 VENDOR shall carry and maintain in force at all times relevant hereto
insurance of the type and minimum coverage amounts as follows:
a. Workmen's Compensation and Employers' Liability
Insurance providing for payment of benefits to and for
the account of employees employed in connection with
the work covered by this
Agreement as required by the statutes of the state where the
work is being performed.
b. Comprehensive General Liability Insurance with minimum
limits of $1,000,000 combined bodily injury and
property damage per occurrence and aggregate.
c. Comprehensive Automobile Liability Insurance in amounts not
less than $1,000,000 combined single limit bodily injury and
property damage per occurrence and aggregate.
6.2 Upon written request by MERCK, VENDOR shall increase the above
insurance limits or obtain additional insurance coverage.
6.3 All insurance policies shall contain an endorsement waiving
all subrogation rights against MERCK.
6.4 Prior to the commencement of this Agreement, certificates of insurance
evidencing the coverage required above shall be filed with MERCK. Such
certificates shall be issued by insurers approved by MERCK shall
provide that the insurer must give MERCK not less than thirty (30) days
advance notice of any change in or cancellation of coverage and shall
name MERCK as an additional named insured, as applicable.
6.5 Neither failure of VENDOR to comply with any or all of the insurance
provisions of this Agreement, nor the failure to secure endorsements on
the policies as may be necessary to carry out the terms and provisions
of this Agreement shall be construed to limit or relieve VENDOR from
any of its obligations under this Agreement, including this insurance
clause.
ARTICLE 7: TERM AND TERMINATION
7.1 The effective date of this Agreement and the rights created herein
shall be the date that this Agreement is fully executed by the parties,
except that the terms and conditions regarding intellectual property
rights and confidentiality shall apply to all disclosures of
confidential information and all discoveries and developments occurring
prior to the execution of this Agreement. Subject to the remaining
provisions of this Article 7, the term of this Agreement shall expire
on the second anniversary of the effective date of this Agreement.
7.2 With respect to adjusting prices after one year, if the parties want to
amend the agreement to change the fee structure by mutual agreement,
they can do so without any special language in the contract. If either
party disagrees, there will be no change to the fee structure.
7.3 The rights and obligations created herein shall be subject to
termination only in accordance with the termination provisions of this
Agreement.
7.4 MERCK SHALL HAVE THE RIGHT TO TERMINATE THIS AGREEMENT OR SERVICES
COVERED BY ANY CONTRACTOR REQUEST FORM UNDER THIS AGREEMENT AT ANY TIME
WITH WRITTEN NOTICE AND FOR ANY REASON AND WITHOUT LIABILITY OTHER THAN
TO PAY FOR SERVICES PERFORMED THROUGH TERMINATION. IN SUCH EVENT,
VENDOR SHALL BE BOUND BY ALL CONFIDENTIALITY, INTELLECTUAL PROPERTY,
WARRANTY AND INDEMNITY OBLIGATIONS IN ACCORDANCE WITH THE TERMS AND
CONDITIONS OF THIS AGREEMENT.
7.5 Upon MERCK's termination of this Agreement, VENDOR will cease all work
being performed under this Agreement and destroy or deliver to MERCK
all copies of and any and all
materials or information provided by MERCK to VENDOR or created by
VENDOR hereunder, whether complete or partially complete. Upon MERCK's
termination of services under any Contractor Request Form, VENDOR will
cease all work being performed under such Contractor Request Form and
destroy or deliver to MERCK all copies of any and all materials or
information provided by MERCK to VENDOR or created by VENDOR hereunder
which relate thereto, whether complete or partially complete.
Termination by MERCK of services under any Contractor Request Form
shall not affect any other services being rendered under any other
Contractor Request Form. If requested by MERCK, VENDOR shall certify to
MERCK, in writing, that the foregoing steps have been taken.
7.6 Termination of this Agreement by MERCK under this Article shall not
effect either party's duty to perform any obligation under this
Agreement arising prior to such termination.
7.7 If, at the natural expiration of the term of this Agreement, any of
VENDOR's personnel are engaged in work on one or more MERCK projects
which are incomplete, MERCK may, at its option, require VENDOR to
continue to supply such personnel for such projects, at the rates and
on the terms specified in this Agreement, until such projects are
complete.
ARTICLE 8: CONFIDENTIALITY/PROTECTION OF MERCK'S PROPRIETARY
RIGHTS
8.1 VENDOR understands and agrees that all materials and information
provided by MERCK or developed by VENDOR hereunder are valuable assets
of MERCK and are to be considered MERCK's proprietary information and
property.
8.2 VENDOR will treat the all materials and information provided by MERCK
or developed by VENDOR hereunder with the degree of care necessary to
insure that unauthorized disclosure does not occur
8.3 Except as is set forth in this Agreement, VENDOR will not use,
disclose, make or have made any copies of any materials or information
provided by MERCK or developed by VENDOR, in whole or in part, without
MERCK's prior written approval.
8.4 VENDOR shall not be liable for disclosure or use of any materials or
information provided by MERCK or developed by VENDOR hereunder which
is:
a. possessed by VENDOR prior to receipt from MERCK, other
than through prior disclosure by MERCK;
b. published or available to the general public otherwise
than through a breach of this Agreement; or
c. obtained by VENDOR from a third party with a valid
right to make such disclosure, provided that said third
party is not under a confidentiality obligation to
MERCK.
8.5 In the event that VENDOR is required by judicial or administrative
process to disclose any information or materials required to be held
confidential hereunder, VENDOR shall promptly notify MERCK and allow
MERCK a reasonable time to oppose such process before making
disclosure.
8.6 VENDOR understands and agrees that any use or dissemination of
information in violation of this Agreement will cause MERCK irreparable
harm, will leave MERCK with no adequate remedy at law and shall entitle
MERCK to injunctive relief.
ARTICLE 9: WARRANTIES
9.1 VENDOR warrants that the product of the work performed hereunder will
not violate or conflict with any intellectual property rights of any
third persons including, but not limited to, said persons' copyrights,
patents and trademarks.
9.2 VENDOR warrants that VENDOR's work hereunder will not contain any
modules designed or intended to disable any software or hardware,
encrypt data, corrupt memory, or in any way hinder MERCK's full use of
any system, hardware, software or equipment.
9.3 VENDOR will only access MERCK computer facilities following a request
by MERCK to do so. Access will be made using an account name and
password supplied by MERCK. VENDOR warrants that access to this system
will not be attempted by any other means.
ARTICLE 10: PATENT, TRADEMARK AND COPYRIGHT INDEMNIFICATION
10.1 MERCK will notify VENDOR, in writing, of any claim against MERCK that
any part of the product of the work performed hereunder by VENDOR
infringes a United States patent or copyright.
10.2 Upon being notified of any action brought against MERCK based on a
claim that the product of the work performed hereunder infringes a
United States patent or copyright, VENDOR, at VENDOR's sole cost, shall
defend MERCK in said action, perform any negotiations for settlement or
compromise of the action and pay any and all settlements reached and/or
costs and damages awarded in any such action, including reasonable
attorney's fees. MERCK will provide reasonable assistance if requested
by VENDOR, at no expense to MERCK. VENDOR shall also (i) obtain for
MERCK the right to use such product, (ii) modify the product so as to
render it non-infringing or (iii) if (i) and (ii) are not possible,
refund all amounts paid by MERCK hereunder for such product.
ARTICLE 11: LIMITATION OF LIABILITIES
11.1 Except for violation by VENDOR of Articles 3, 8, 9, and 10 herein,
neither party shall be liable to the other for special, indirect,
consequential or incidental losses or damages of any kind or nature
whatsoever, including but not limited to lost profits, lost records or
data, lost savings, loss of use of facility or equipment, loss by
reason of facility shut-down or non-operations or increased expense of
operations, or other costs, charges, penalties, or liquidated damages,
regardless of whether arising from breach of contract, warranty, tort,
strict liability or otherwise, even if advised of the possibility of
such loss or damage or if such loss or damage could have been
reasonably foreseen.
ARTICLE 12: DISPUTE RESOLUTION
12.1 Any controversy, claim, or dispute arising out of or relating to this
Agreement, or the breach thereof, shall be settled through good faith
negotiation between the parties. In the event that said negotiations
are not successful, the controversy, claim, or dispute shall be
resolved through arbitration before three (3) arbitrators. Such
arbitration shall take place in Newark, New Jersey and shall proceed in
accordance with the Commercial Arbitration Rules of the American
Arbitration Association and the laws of the State of New Jersey without
regard to the provisions thereof concerning conflict of laws. Within
seven (7) calendar days of either party making a demand for
arbitration, -MERCK and VENDOR shall each select one (1) arbitrator.
The third arbitrator shall be designated by the arbitrators selected by
the parties within thirty (30) days of the demand for arbitration. If
any arbitrator is not selected within the prescribed time period either
party may apply to the president of the American Arbitrators
Association for the appointment of such arbitrator. The determination
of the majority of the arbitrators shall be binding regardless of
whether one of the parties fails or refuses to participate in the
arbitration and said determination shall be enforceable by any court of
competent jurisdiction. All costs and expenses of the arbitration
(including fees of the arbitrators) shall also be split equally between
the parties.
ARTICLE 13 ASSIGNMENT
13.1 Neither party may assign any rights or delegate any obligations created
by this Agreement without the prior written consent of the other party.
This Agreement shall be binding upon the heirs, successors, legal
representatives and valid assigns of the parties.
ARTICLE 14: TAXES
14.1 To the extent that the goods or services to be provided hereunder are
subject to any sales, use, rental, personal property and any other
taxes, payment of said taxes is MERCK's responsibility and said taxes
have been included in the payment terms referred to in Article 4 of
this Agreement. VENDOR shall be liable for any and all taxes on any and
all income it receives from MERCK under this Agreement.
ARTICLE 15: AUDIT
15.1 VENDOR's records, which shall include, but not be limited to,
accounting records, time sheets, written policies and procedures, test
results, reports, correspondence, memoranda and any other documentation
relating to this Agreement, shall upon three business days prior notice
be open to inspection and subject to audit and/or reproduction, during
normal working hours, by MERCK or its authorized representative to the
extent necessary to adequately evaluate claims submitted by VENDOR,
required by governmental authorities or desirable for any other valid
business purpose. For the purpose of such audits, inspections,
examinations and evaluations, MERCK or its authorized representative
shall have access to said records beginning on the effective date of
this Agreement and continuing until five (5) years after the date of
final payment by MERCK to VENDOR pursuant to this Agreement.
ARTICLE 16: FORCE MAJEURE
16.1 Neither party hereto shall be considered in default in the performance
of its obligations hereunder, except the obligation to make payments
hereunder, to the extent that the performance of any such obligation is
prevented or delayed by any cause, existing or future, which has
neither
been caused nor contributed to by such party, and which is beyond the
reasonable control of such party.
ARTICLE 17: GOVERNING LAW
17.1 This Agreement shall be governed by and construed in accordance with
the laws of the State of New Jersey.
ARTICLE 18: SEVERABILITY
18.1 If any provision of this Agreement is found invalid or unenforceable by
a court of competent jurisdiction, the remainder of this Agreement
shall Continue in full force and effect.
ARTICLE 19: SURVIVAL BEYOND COMPLETION
19.1 Unless expressly limited herein or in a subsequent writing by the
parties, the terms, provisions, representations and warranties
contained in this Agreement shall survive MERCK's final acceptance of
the goods and services to be provided or performed herein for a period
of ten (10) years.
ARTICLE 20: RESERVATION OF RIGHTS
20.1 Neither party's delay or failure in enforcing any of right or remedy
afforded hereunder or by law shall prejudice or operate to waive that
right or remedy or any other right or remedy which it shall have
available; nor shall any such failure or delay operate to waive either
party's rights to any remedies due to a future breach of this
Agreement, whether of a like or different character.
ARTICLE 21: ENTIRE AGREEMENT
21.1 This Agreement together with MERCK's Purchase Order and Contractor
Request Form referred to in Article I constitutes the entire agreement
between the parties hereto and supersedes any previous agreements or
understandings whether oral or written. The printed terms and
conditions contained in any other purchase orders, invoices or other
documents issued by MERCK or VENDOR with respect to this Agreement,
whether previously or in the future, shall be of no effect and shall be
superseded by, this Agreement.
21.2 No modification or waiver of the provisions of this Agreement shall be
valid or binding on either party unless in writing and signed by both
parties.
ARTICLE 22: REVIEW BY LEGAL COUNSEL
22.1 Each of the parties agrees that it has had the opportunity to have this
Agreement reviewed by their respective legal counsel. Accordingly, the
rule of construction that any ambiguity in this Agreement is to be
construed against the drafting party shall not apply.
ARTICLE 23: NOTICES
23.1 Any notice given hereunder shall be sent in writing by certified mail,
return receipt requested or be overnight courier service which provides
a delivery receipt to the other party's business address set forth on
the first page or to such other address as such party shall most
recently have designated in writing and shall be addressed to the
attention of such person as such party shall most recently have
designated un writing. Such notices shall be effective when received.
Notices directed to VENDOR shall be sent to:
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Notices directed to MERCK shall be sent to:
Executive Director, Information Technology Procurement
Merck & Co., Inc.
Xxx Xxxxx Xxxxx
XX Xxx 000
Xxxxxxxxxx Xxxxxxx, XX 00000-0000
with a copy to the Office of the Secretary at MERCK's business address first set
forth above. The date of such notice shall be the date on which the notice is
received.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement
to be executed by their duly authorized representatives.
MERCK & CO., INC.
BY:
TITLE:
DATE:
JUDGE TECHNICAL SERVICES, INC.
BY:
TITLE:
DATE:
