Exhibit 10.5
MASTER CONSULTING SERVICES AGREEMENT
Agreement #4814224
This is an agreement (the "Agreement") between Work Management Solutions
("CONSULTANT"), a company whose address is 00 Xxxxx Xxxxxx, Xxxxxx,
Xxxxxxxxxxxxx 00000 and State Farm Mutual Automobile Insurance Company, its
subsidiaries and affiliates ("STATE FARM"), having its corporate headquarters at
Xxx Xxxxx Xxxx Xxxxx, Xxxxxxxxxxx, Xxxxxxxx, 00000.
W I T N E S S E T H
WHEREAS, it is the desire of the parties that, in accordance with the
terms and conditions hereof, the CONSULTANT shall, from time to time, provide
consulting services to STATE FARM; and
WHEREAS, both parties wish to enter into an agreement which will govern
the relationship of the parties.
ACCORDINGLY, the parties agree as follows:
1. Services. STATE FARM shall from time to time request CONSULTANT to
provide consulting services (the "Consulting Services"). STATE FARM shall make
its request on a work order, the form of which is attached hereto and
incorporated herein as Exhibit A (the "Work Order"). Each Work Order shall be in
the format prescribed in Exhibit A and shall set forth, among other things, the
topics, the location, the materials to be presented to STATE FARM, the hours to
complete the work, the completion date, and the fee to be paid to CONSULTANT.
2. Work Order; Fees. Upon execution of the Work Order by both parties,
CONSULTANT shall provide the Consulting Services as set forth in the particular
Work Order. In consideration of CONSULTANT performing and completing its
responsibilities hereunder, STATE FARM shall pay the CONSULTANT the fee set
forth in the particular Work Order. Such compensation shall be due and payable
on the later of (i) thirty (30) days following completion of the Consulting
Services or (ii) thirty (30) days following STATE FARM's receipt of an accurate
invoice. Additionally STATE FARM shall reimburse CONSULTANT its reasonable
travel expenses.
3. Meetings. In order to provide Consulting Services, CONSULTANT agrees
that at STATE FARM's request it shall meet with STATE FARM personnel at STATE
FARM's office in Bloomington, Illinois. The meeting times shall be mutually
agreeable. Both parties acknowledge that it shall be necessary to cooperate in
order to carry out this Agreement, and each agrees to reasonably cooperate with
the other.
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4. Confidentiality: a. The parties expressly acknowledge that in the
course of their performance hereunder, they may learn or have access to certain
confidential, patent, copyright, business, trade secret, proprietary or other
like information or products of the other party or of third parties, including
but not limited to the other party's vendors, consultants, suppliers or
customers (the Information). Anything in the Agreement to the contrary
notwithstanding, the parties expressly agree that they will keep strictly
confidential any such Information that they learn.
b. STATE FARM and CONSULTANT agree that, for the purposes of the
Agreement, third parties whose duties for STATE FARM require access to the
Information provided under the Agreement shall have access to the Information as
required by such duties, provided that: i) such third parties have agreed in
writing with either STATE FARM or CONSULTANT, in terms no less restrictive than
the confidentiality obligations of the Agreement, to keep confidential the
Information, ii) such third parties have agreed in writing with either STATE
FARM or CONSULTANT not to use the Information for their own benefit or the
benefit of any person or entity besides STATE FARM, and iii) STATE FARM, when
allowing such third parties access to CONSULTANT's Information, will not exceed
the license or use restrictions in the Agreement.
c. CONSULTANT agrees not to use a third party's Information for its own
benefit or the benefit of any person besides STATE FARM.
d. For purposes of this Section 4, the term "Disclosing Party" shall
refer to the party to the Agreement providing the Information to the other
party. The term "Receiving Party" shall refer to the party receiving the
Information in the course of its performance under this Agreement. The term
"Information" shall not include products or information that (i) are in the
public domain or in the possession of the Receiving Party without restriction at
the time of receipt under this Agreement; (ii) are used or released with the
prior written approval of the Disclosing Party; (iii) are independently
developed by the Receiving Party; or (iv) are ordered to be produced by a court
of competent jurisdiction or appropriate regulatory authority, but in such case
the Receiving Party producing the Information agrees to notify the Disclosing
Party immediately and cooperate with the Disclosing Party in asserting a
confidential or protected status for the Information.
e. Each party expressly further agrees that it shall return to Disclosing
Party upon the Disclosing Party's request any such Information and copies
thereof. The provisions of this Section 4 shall survive termination of the
Agreement.
5. Performance Standards; Infringement Indemnification. CONSULTANT
expressly warrants to STATE FARM that:
a. It has the ability and expertise to perform its responsibilities
hereunder and in doing so shall use the highest standards of professional
workmanship. STATE FARM shall have the right to reject any of CONSULTANT's
employees whose qualifications, in STATE FARM's judgment, cannot meet the
standards hereunder.
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b. All materials (the "Materials") provided to STATE FARM by
CONSULTANT as a product of the Consulting Services, and the ideas and techniques
contained therein with respect to STATE FARM's business, shall be the sole and
absolute property of STATE FARM.
c. Any Materials, or Consulting Services furnished or used under
this Agreement do not or will not infringe upon or violate a patent, copyright,
license or other property or proprietary right held, or misappropriate a trade
secret or other property right claimed by a third party. CONSULTANT at its own
expense shall defend and hold STATE FARM fully harmless against any action
asserted against STATE FARM (and specifically including costs and reasonable
attorneys' fees associated with any such action) to the extent that it is based
on a claim that use of the Materials within the scope of this Agreement
infringes any patent, copyright, license or other property right or proprietary
right of any third party. STATE FARM shall promptly notify CONSULTANT in writing
of any such claim. If as a result of any claim of infringement against any
patent, copyright, license or other property right or proprietary right of any
third party, STATE FARM is enjoined from using the Materials, or if either party
believes that the Materials are likely to become the subject of a claim of
infringement, STATE FARM at its option may terminate this Agreement and receive
a full refund of any fees paid hereunder, or request that CONSULTANT at its
option and expense procure the right for STATE FARM to continue to use the
Materials, or replace or modify the Materials so as to make it non-infringing.
6. Work Made for Hire. The parties agree that the Materials produced
hereunder shall be considered a work made for hire. CONSULTANT further
transfers, assigns, sells, and conveys all rights to the Materials hereunder,
including but not limited to copyright, trademark, trade secret, and patent
rights.
7. Use of State Farm Name. CONSULTANT shall not disclose or otherwise
identify STATE FARM or any of its affiliates or subsidiaries orally or in any of
CONSULTANT's advertising, publications, or other media to be displayed or
disseminated to CONSULTANT's customers or other parties.
8. Independent Contractor. The parties expressly agree that the
CONSULTANT shall be an independent contractor for all purposes in the
performance of this Agreement and shall not be an employee of STATE FARM.
9. Hold Harmless. CONSULTANT expressly agrees anything herein to the
contrary notwithstanding, that it shall indemnify and hold harmless STATE FARM
against any damages of any kind whatsoever, including costs and reasonable
attorneys' fees, STATE FARM shall incur as a result of the negligent acts or
omissions of CONSULTANT, its employees or agents, while on STATE FARM's
premises.
10. LIMITATION OF LIABILITY. UNDER NO CIRCUMSTANCES WHATSOEVER SHALL
STATE FARM BE LIABLE TO CONSULTANT FOR ANY SPECIAL,
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CONSEQUENTIAL, INDIRECT, OR INCIDENTAL DAMAGES OF ANY KIND WHATSOEVER. IN NO
EVENT WHATSOEVER SHALL STATE FARM'S LIABILITY TO CONSULTANT FOR ANY REASON
WHATSOEVER EXCEED IN THE AGGREGATE THE MUTUALLY AGREED TO COMPENSATION FOR
SERVICES PROVIDED UNDER THE WORK ORDER.
11. Limitation of Actions. No action, whether in contract or tort,
including negligence, arising out of the performance of services under this
Agreement may be brought by either party more than eighteen (18) months after
the cause of action accrues.
12. No Waiver. It is expressly understood that if either party, on any
occasion fails to perform any term of this Agreement, and the other party does
not enforce that term, the failure to enforce on that occasion shall not prevent
enforcement on any other occasion.
13. Liquidated Damages. If either party neglects or fails to perform any
of its obligations under this Agreement and such failure continues for a period
of ten (10) days after notice thereof, the other party shall have the right to
terminate this Agreement. On written notification to CONSULTANT, STATE FARM may
at any time terminate the services of individual employees or agents of
CONSULTANT for reasons of performance or conduct. Both parties acknowledge that
the determination of actual damages in the case of nonperformance by either
party will be difficult or impossible. Both parties therefore agree that damages
under this Agreement will be as follows: In the event of CONSULTANT's default,
CONSULTANT shall forfeit its fees hereunder and no fee shall be payable to it;
in the event of STATE FARM's default, CONSULTANT shall receive only the portion
of the total fee representing work previously completed, but in no event shall
this amount exceed the total fee. This measure of damages shall be interpreted
as liquidated damages, and not as a penalty.
14. Assignment. CONSULTANT may not assign its duties under the Agreement
to any other entity, including an entity which affiliates or merges with or
acquires CONSULTANT, except when such assignment is approved in advance by STATE
FARM in writing, which approval STATE FARM may in its sole discretion grant or
deny.
15. Time is of the Essence. CONSULTANT acknowledges that time is of the
essence to STATE FARM.
16. In the event STATE FARM, in its sole discretion, decides to loan
equipment to CONSULTANT to facilitate CONSULTANT's performance of the Consulting
Services, CONSULTANT shall be responsible for any loss or damage to such
equipment.
This Agreement together with the exhibit attached hereto shall be an agreement
binding upon each of the parties hereto, their successors, and to the extent
permitted their assigns. This Agreement shall be governed by the laws of the
State of Illinois without regard to its conflicts of law principles. This
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Agreement cannot be amended or otherwise modified except as agreed to in writing
by each of the parties hereto. This Agreement and the exhibit attached hereto
represent the sole agreement between the parties and supersedes and merges any
prior agreement oral or written between the parties with respect to the subject
matter hereof. This Agreement shall become effective on the date the second of
the two parties to sign executes this Agreement below.
WORK MANAGEMENT SOLUTIONS STATE FARM MUTUAL AUTOMOBILE
00 Xxxxx Xxxxxx INSURANCE COMPANY
Xxxxxx, XX 00000 Xxx Xxxxx Xxxx Xxxxx
Xxxxxxxxxxx, XX 00000
/s/ X. X. Xxxxxx /s/ Xxx Xxxxxxxx
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Signature Signature
X. X. XXXXXX Xxx Xxxxxxxx
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Printed or Typed Name Printed or Typed Name
V.P. Consulting Services Director
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Title Title
July 10, 1998 7/18/98
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Date Date
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