EXHIBIT 10.7
ADDENDUM TO PROFESSIONAL CONSULTANT AGREEMENT
This Addendum supplements and modifies the terms and conditions of the
Professional Consultant Agreement (the "Contract") between AT&T Corp. ("AT&T")
and Prosoft I-Net Solutions, Inc. ("Prosoft"), dated March 28, 1997.
Except as specifically modified below, all terms and conditions of the
Contract shall remain in full force and effect.
The following is added as Exhibit D to title Contract:
Exhibit D
1. Prosoft will deliver AT&T SecureBuy Merchant Services Training ("SecureBuy
Training") to AT&T's customers.
2. The minimum number of students required for a course to be offered will be
two students. The maximum number of students in any given class will be twelve
students.
3. Prosoft will charge $495.00 per student for SecureBuy Training. If an
aggregate total (all course locations) of 25 or fewer students are enrolled in a
given month, AT&T receives no compensation from Prosoft. If more than 25
students are enrolled in a given month, Prosoft will pay AT&T $100 per student
for the 26th through 50th student and $150 per student for the 51st and above
student.
4. Any compensation due AT&T from Prosoft shall be made by the 10th day of
the following month.
5. Article 4 of the Contract is amended to add ▇▇▇▇▇▇▇ ▇▇▇▇▇ as the AT&T
Technical Representative for only those issues relating to delivering customer
training on AT&T SecureBuy Merchant Services.
6. This Addendum shall be effective as of the last dated signature set forth
below.
IN WITNESS WHEREOF, this Addendum is executed by duly authorized
representatives of the parties.
AT&T CORP. PROSOFT I-NET SOLUTIONS, INC.
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇ By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
-------------------------------- -----------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇ Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
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Title: Director, New Channel Devel. Title: COO
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Date: 4-7-97 Date: 4-7-97
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PROFESSIONAL CONSULTANT CONTRACT
WITNESSETH:
That in consideration of the agreement expressed herein, AT&T CORP.
("AT&T"), having an office at ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇, a corporation of the State of New York, and Prosoft I-Net Solutions,
Inc. a corporation of the State of Nevada, ("Professional Consultant"),
having an office at ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇, do hereby agree as follows:
ARTICLE 1 - STATEMENT OF WORK
The Professional Consultant shall render all the services specified in
Exhibit A, attached hereto and made a part of hereof, to AT&T, shall
complete such services within the time allowed in this Contract, and shall
meet all interim deadlines, if any specified in Exhibit A. The Services
shall be performed to the satisfaction of AT&T, shall be performed in
accordance with generally accepted professional standards, and shall be in
accordance with such requirements or restrictions as may be lawfully
imposed by governmental authority.
ARTICLE 2 - BILLING AND PAYMENT
The Professional Consultant shall submit invoices for all work performed
under this Contract directly to the AT&T customer trained in accordance
with Exhibit A, and shall be in accordance with the pricing in Exhibit B.
In no event shall AT&T be liable to pay Professional Consultant.
ARTICLE 3 - DURATION
This Contract applies to all work performed by the Professional Consultant
which is described in Exhibit A hereto, whether performed in anticipation
of or following the execution of this Contract, and shall expire two (2)
years from the later date signed by either of the parties to this
Agreement.
This Contract may be terminated by AT&T upon thirty (30) days written
notice.
ARTICLE 4 - REPRESENTATIVES
AT&T's Technical Representative is ▇▇▇▇▇ ▇▇▇▇▇▇ and AT&T's Contract
Representative is ▇▇▇▇ ▇▇▇▇▇, or such other persons as may be designated in
writing by AT&T from time to time. The Professional Consultant's
Representative
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is ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, or such other person as may be designated in writing by
the Professional Consultant from time to time.
ARTICLE 5 - TITLE TO MATERIAL
All right, title and interest in and to all work and work products
developed or produced under this Contract whether in the form of course
development or related training specifications, drawings, sketches, models,
samples, data, computer programs, documentation or other technical or
business information, and all right, title and interest in patents,
copyrights, trade secrets, trademarks and other intellectual property
derived from such work and work products are hereby assigned by the
Professional Consultant to AT&T. All work and work products shall be
delivered to AT&T as required herein or on termination or completion of
this Contract, whichever is earlier, unless the Professional Consultant is
requested in writing to do otherwise. All such work and work products shall
be considered "work made for hire" to the extent allowed by law.
Professional Consultant shall require its employees, agents and
subcontractors developing or producing work or work products under this
Contract to execute and supply to AT&T (and Professional Consultant shall
execute and supply to AT&T) at no extra cost, all such assignments, as AT&T
deems appropriate to assure and perfect such transfer or vesting of all
right, title, and interest in the work, work products and intellectual
property to AT&T.
Any materials developed under this Contract will be provided to AT&T in
appropriate and current "Microsoft Office" formats:
Notwithstanding anything contained in this Article to contrary,
Professional Consultant shall retain all ownership in any materials related
to training previously developed by Professional Consultant, subject to
Professional Consultant's ability to document the date and creation of such
materials.
ARTICLE 6 - CONFIDENTIAL INFORMATION
Any specifications, drawings, sketches, models, samples, data, computer
programs, reports, work, work products, documentation, or other technical
or business information ("Information") furnished or disclosed by AT&T or
developed by the Professional Consultant hereunder is the property of and
shall be deemed confidential to AT&T and shall be returned to AT&T at the
conclusion of this Contract, or shall be destroyed if AT&T shall so direct
in writing, Unless such Information was previously known to the
Professional Consultant free of any obligation to keep it confidential, or
is subsequently made public by AT&T or by a third party having a legal
right to make such disclosure, it shall be held in confidence by the
Professional Consultant, shall be used only for the purposed
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hereunder, and may be used for other purposes only upon such terms and
conditions as may be mutually agreed upon in writing. The Professional
Consultant shall obligate each of its employees, agents and subcontractors
to keep such Information confidential in accordance with the foregoing
requirements. Such obligations shall be in writing (hereafter referred to
as "Confidentiality Agreements"), which writing shall recite that such
Information is the property of AT&T and is to be held in confidence, shall
refer to this Contract by number, and shall be signed by each of the
Professional Consultant's employees, agents and subcontractors having
access to such Information.
ARTICLE 7 - PROFESSIONAL CONSULTANT'S INFORMATION
No specifications, drawings, sketches, models, samples, data, tools,
computer or other apparatus programs, documentation, works, work products,
or other tangible or intangible technical or business information, written,
oral or otherwise expressed, furnished or disclosed by Professional
Consultant to AT&T under this Agreement or in contemplation thereof shall
be considered by Professional Consultant to be confidential or proprietary
unless the subject matter so furnished or disclosed is owned by AT&T under
the Article-Title to Material or the Article-Confidential Information.
ARTICLE 8 - RELATIONSHIP
The Professional Consultant shall exercise full control and direction over
the employees of the Professional Consultant performing the work covered by
this Contract. Any changes in personnel that may be reasonably requested by
AT&T through its authorized representative, whether relating to the number
of employees assigned to the work or the acceptability of particular
employees, shall be made as soon as reasonably possible.
Neither the Professional Consultant nor its employees or agents shall be
deemed to be AT&T's employees or agents. It is understood that the
Professional Consultant is an independent contractor for all purposed and
at all times. The Professional Consultant is wholly responsible for
withholding and payment of all federal, state and local income and other
payroll taxes with respect to its employees, including contributions from
them as required by law.
ARTICLE 9 - INDEMNIFICATION
To the extent not prohibited by law and except when arising from the sole
negligence of AT&T, the Professional Consultant shall indemnify and save
AT&T harmless from the following types of claims, losses, suits, demands,
or liens:
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(a) Any tortuous act, omission, or statement of the Professional Consultant or
any person employed by or under contract with the Professional Consultant
that results in injury (including death), loss, or damage to any person or
property;
(b) Any failure on the part of the Professional Consultant to comply with
applicable government requirements and requirements of law, including the
Occupational Safety and Health Act of 1970, that results in the imposition
of fines or other penalties.
(c) Any failure on the part of the Professional Consultant to satisfy all
claims for labor, equipment, materials and other obligations relating to
the performance of the work hereunder; and
(d) Any act of infringement of any patent, trademark, or copyright or any
unauthorized use of any trade secret or other proprietary interest, except
where such infringement or unauthorized use arises solely from Professional
Consultant's adherence to AT&T's written instructions which are so specific
as to directly cause said infringement or unauthorized use, in which case.
AT&T shall so indemnify Professional Consultant; provided however, if such
instructions specify (i) commercial merchandise which is available on the
open market or is the same as such merchandise or (ii) merchandise of
Professional Consultant's origin, design or selection, and the adherence to
such instructions results in the infringement or unauthorized use, then
Professional Consultant shall indemnify AT&T for any such infringement or
unauthorized use.
Each party shall defend or settle, at its own expense, any action or suit
against the other for which it is responsible hereunder and shall reimburse
the other for reasonable attorneys' fees, interest, costs of suit and all
other expenses incurred by the other in connection therewith. Each party
shall notify the other promptly of any claim for which the other is
responsible hereunder, and shall cooperate with the other in every
reasonable way to facilitate the defense of any such claim.
ARTICLE 10 - INSURANCE
Prior to the commencement of any work, the Professional Consultant shall
take out and maintain sufficient insurance to adequately protect the
Professional Consultant and AT&T: (a) from any and all claims by employees
of the Professional Consultant for personal injury (including death)
whether or not such claims are under applicable workers' compensation acts;
and (b) from any and all claims for injury (including death), loss, or
damage to any person or property which may arise or result from any
allegedly tortuous act or omission of the Professional Consultant or any
person employed by or under contract with the Professional Consultant. In
addition, the Professional Consultant shall take out and maintain
sufficient insurance to satisfy any and all claims by AT&T for
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damages resulting from professional errors and omissions by the
Professional Consultant or any person employed by or under contract with
the Professional Consultant. The Professional Consultant shall require
subcontractors, if any, to carry workers' compensation insurance and
adequate liability insurance.
The selection of the insurance carrier shall be subject to the approval of
AT&T. Certificates of insurance acceptable to AT&T shall be filed with AT&T
and subject to approval by it. AT&T shall not be required to make any
payments under this Contract prior to receiving acceptable certificates of
insurance.
In no event shall the type, form and amount of insurance coverage be less
than the following minimum amounts:
TYPE AMOUNT
Workers' Compensation Insurance As Required by Law
Employer's And Occupational
Disease Liability Insurance $500,000
Comprehensive General Liability $1,000,000
(Including Personal Injury and
Contractual Liability with AT&T
as an Additional Insured)
Automobile Liability Combined Single $1,000,000
Limits Covering Owned, Nonowned
and Hired Vehicles (Including
Bodily Injury and Property Damage
with AT&T as an Additional Insured
Professional Errors and Omissions $500,000 Each Occurrence
ARTICLE 11 - RECORDS
Records of all of the Professional Consultant's costs in performing the
services covered in this Contract, including the costs of labor, equipment,
materials, and other disbursements, shall be kept on a generally accepted
accounting basis and shall be available to AT&T or its authorized
representative during normal business hours for a period of three years
after final payment has been made by AT&T or for a period of three years
after final adjustment of the payment schedule following termination as
otherwise provided herein, whichever is later.
The originals of the Confidentiality Agreements required herein shall be
retained by the Professional Consultant for a period of five (5) years, or
in the alternative, shall be delivered to AT&T at its request.
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ARTICLE 12 - ASSIGNMENT
This Contract is one for personal services and may not be delegated or
assigned by the Professional Consultant. Any purported delegation of duties
or assignment by rights by the Professional Consultant under this Contract
is void. All subcontractors shall provide that subcontractors are subject
to all terms and conditions set forth in the Contract documents. All work
performed by a subcontractor shall be deemed work performed by the
Professional Consultant.
ARTICLE 13 - GOVERNMENTAL REQUIREMENTS
The Professional Consultant agrees not to discriminate against any employee
or applicant for employment because of race, color, religion, sex, age,
national origin or handicap, and shall during the performance of this
Contract comply with all applicable Executive Orders and federal
regulations as set forth in Attachment A annexed hereto.
ARTICLE 14 - REQUIREMENTS OF LAW
The Professional Consultant shall comply, at its own expense, with the
provisions of all applicable state and municipal requirements and with all
state and federal laws and regulations applicable to the work and to the
Professional Consultant as a Professional Consultant, as an employer of
labor or otherwise. The Professional Consultant shall further comply with
all rules and regulations and licensing requirements pertaining to its
professional status and that of its employees, partners, associates,
subcontractors and others employed to render the services hereunder,
ARTICLE 15 - SAFETY OF WORK
The Professional Consultant shall be responsible for the safety of the
work, In discharging that responsibility, it shall comply with the
requirements of the Occupational Safety and Health Act of 1970, as amended,
and any other federal, state or local act or other requirement of law
affecting safety and health.
ARTICLE 16 - PUBLICITY, ADVERTISING
The Professional Consultant agrees not to advertise, promote or publicize
matters relating to the services performed under this Contract or to
mention or imply any relationship or connection with AT&T in such
advertising, promotion or publicity without the prior written consent of
AT&T.
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ARTICLE 17 - WRITTEN NOTICE
Unless otherwise provided herein, whenever notice or consent is required to
be given by the terms of this Contract, it shall be in writing and shall be
given to and by the Contract Representatives designated under this
Contract.
ARTICLE 18 - RIGHT TO ENTRY
Each party shall have the right to enter the premises of the other party
during normal business hours with respect to the performance of this
Contract subject to all applicable plant rules and regulations, company
security regulations and procedures, and governmental security laws and
regulations.
ARTICLE 19 - WAIVER
The failure of either party at any time to enforce any right or remedy
available to it under this Contract with respect to any breach or failure
by the other party shall not be construed to be a waiver of such right or
remedy with respect to any other breach or failure by the other party.
ARTICLE 20 - SEVERABILITY
In the event that any one or more of the provisions contained herein shall
for any reason be held to be unenforceable in any respect under the law of
any state or of the United States of America, such unenforceability shall
not affect any other provision of this Contract, but this Contract shall
then be construed as if such unenforceable provision or provisions had
never been contained herein.
ARTICLE 21 - SURVIVAL OF OBLIGATION
The obligations of the parties under this Contract that by their nature
continue beyond the expiration of this Contract shall survive any
termination or cancellation of this Contract.
ARTICLE 22 - CHOICE OF LAW
The construction, interpretation and performance of this Contract shall be
governed by the local laws of the State of New York.
ARTICLE 23 - CAPTIONS
The captions in this Contract are included for convenience only and shall
not be construed to define or limit any of the provisions contained herein.
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ARTICLE 24 - ENTIRE AGREEMENT
This Contract constitutes the entire agreement between the Professional
Consultant and AT&T relating to the subject matter hereof and shall not be
changed in any manner except by a writing executed by both parties. Other
than as expressly provided herein, both the Professional Consultant and
AT&T agree that no prior or contemporaneous oral representations form a
part of their agreement.
IN WITNESS WHEREOF, the Professional Consultant and AT&T have executed this
Contract in duplicate on the day and year below written.
AT&T CORP. PROSOFT I-NET SOLUTIONS, INC.
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇ By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
-------------------------------- -----------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇ Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
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Title: Director, New Channel Devel. Title: Chairman/CEO
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Date: 3-31-97 Date: 3-29-97
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Exhibit A
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1. Prosoft will deliver training on the following AT&T Web Site Services, and
the corresponding application tools:
EW3 with Microsoft FrontPage
EW3 with NetObjects Fusion
2. Each AT&T Product Management Technical Representative will reach agreement
with Prosoft relative to course frequency and training location on a
quarterly basis, with a minimum delivery of one class offered per location
per quarter.
3. AT&T will establish and furnish the necessary number of training test
accounts for each of the services.
4. The minimum number of students enrolled for a course to be offered will be
four students. The maximum number of students in any given class will be
twelve students. Prosoft, at their discretion, can deliver training on
AT&T services with enrollments of less than four students.
5. Prosoft will provide a teaching coach for any course with ten or more
students enrolled. The teaching coach will be responsible for being fully
versed in the software tool being provided in connection with the service,
the underpinning AT&T service, and their activities will be under direction
of the lead instructor in support of course delivery. Prosoft will meet the
volume requirements to provide training to AT&T's clients within two weeks
of a client or AT&T request for the course.
6. Prosoft will be responsible for providing student course material which
meets the AT&T's specification.
7. Prosoft will be responsible for providing access to AT&T's Web Site
Services protected staging platforms utilizing AT&T's Managed Internet
Services facilities. AT&T will provide Prosoft, while necessary, the
Digital Internet Tunneling software and service which will provide access
via WorldNet MIS services to the AT&T Web Site Services staging platform
for purposes of Prosoft to conduct customer training.
8. Prosoft will provide and maintain an area in each of their training
facilities for the merchandising of AT&T products and services. All
collateral materials for these displays will be provided by AT&T.
9. AT&T reserves the right to inspect and reject any Prosoft training facility
that does not meet AT&T's minimum level of training facility standards.
10. Prosoft will be responsible for all course registration and student
billing. Prosoft will provide telephone registration and course information
support to the AT&T customer through the use of a toll free number
terminating at Prosoft's facility. All calls received at this number will
be handled as AT&T customer calls.
11. Charges to the AT&T customer for the delivered training will be determined
by AT&T, based upon a negotiated rate.
12. Prosoft will provide a plan for the optional delivery of courses at the
customer's location.
13. All Prosoft satisfaction guaranties and follow on training support
options published in either Prosoft's Course Catalog or on their Web site
will be provided and extended to AT&T customers attending Prosoft
delivered courses.
14. Prosoft agrees to deliver only the approved curriculum for AT&T's customer
training.
15. All AT&T customer data is considered proprietary.
16. Prosoft will maintain a minimum average student course evaluation score of
four.
17. Prosoft will provide AT&T access to student course evaluations within
seventy-two hours of course completion.
18. Prosoft will provide accurate student enrollment and attendance
verification to AT&T within seventy-two hours of course completion.
19. Prosoft will present a certificate of completion to each student at the
conclusion of the course.
20. Prosoft will commit to establishing sixty-five training centers by July
31st, 1997, and eighty-five training centers by January 1st, 1998.
Exhibit B
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The cost to AT&T or an AT&T customer, for delivered courses will be at least 10%
below Prosoft's standard list price for a similar course, (by way of example
only, Internet/Intranet Publishing Using Microsoft FrontPage 97, Code 2IP-FP),
or $337.50 per course day, which ever is lower.
Exhibit C
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WorldNet MIS Boilerplate Agreement
Contingencies:
1) Prosoft will purchase AT&T WorldNet Managed Internet Services exclusively
for providing access to the Internet at all of their training facilities in
accordance with AT&T's standard terms and conditions.
a) Service contracts signed and implementation schedules developed and
agreed upon within 45 days of the execution of this contract.
b) All service agreements will be for a minimum of two year terms.
c) Prosoft will commit to establishing sixty-five training centers by July
31st, 1997, and eighty-five training centers by January 1st, 1998.
2) AT&T will provide Prosoft, while necessary, the Digital Internet Tunneling
software and service which will provide access via WorldNet MIS services to
the AT&T Web Site Services staging platform for purposes of Prosoft to
conduct customer training.
