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PROFESSIONAL
SERVICES AGREEMENT PROFESSIONAL SERVICES AGREEMENT made
as of Date August
15, 2005,
which supersedes any and all current and past agreements, between Customer
Name, a Company located in City, State, a division of Customer Name
(“COMPANY”), a State
Name Corporation
with its principal place of business having an address of __________________,
City name, State,
ZIP CODE,
and Allen Enterprises,
(“SUPPLIER”), a sole independent Consultant
organized
under the Commonwealth
laws of Puerto
Rico, having a place of business in San Juan,
Puerto Rico. W I T N E S S E T H:
WHEREAS, SUPPLIER is qualified to render to COMPANY
the professional services contemplated hereby; and
WHEREAS, COMPANY has now and from time to time in
the future may have the desire to engage SUPPLIER's professional services; and
WHEREAS, SUPPLIER desires to render professional
services to COMPANY on a non‑exclusive basis concerning such matters;
NOW THEREFORE, in consideration of the premises and of the
mutual promises and covenants herein contained, the parties hereto agree as
follows: 1.
Services.
(a) This Agreement
constitutes an offer by COMPANY to SUPPLIER and the acceptance thereof by
SUPPLIER to perform Information
Management Professional Consulting Services
(“Services”) separately executed and
incorporating by reference the terms and conditions of this Agreement.
The Services shall include, where applicable, the scope of work, the
staffing, locations, deliverables, project assumptions, milestones, schedule and
any other information relevant to the Services.
SUPPLIER represents and warrants that it is currently under no obligation
to any third party, nor will it enter into any obligation to a third party
during the term of Services, that would interfere with its rendering to COMPANY
the Services. The
parties agree that the focus and definition of Services may develop and
change during its term and, if so, the parties by mutual agreement will redefine
in writing such Services as needed. (See
Supplier’s Proposal of Services
on Exhibit A). 2. Fees. (a) In consideration of
its acceptance of this Agreement and of its performance of the Services, COMPANY
shall pay SUPPLIER at the rates contained in Exhibit A hereof. In
the absence of contrary terms in the Services, invoices shall be payable within
thirty (30) days of receipt, expenses will be billed at SUPPLIER’s cost on a
monthly basis and SUPPLIER agrees to notify COMPANY immediately upon learning
that professional services or expenses cost estimates, if any, are going to be
exceeded. SUPPLIER agrees to use
COMPANY’s travel service department when requested to do so by COMPANY.
(b)
COMPANY may, without breach, withhold payment of any amounts which are disputed
in good faith if COMPANY delivers a written statement to SUPPLIER describing the
basis of the dispute and the amount being withheld. (c)
COMPANY’s
federal I.D. or social security number is ###-##-####. COMPANY
assumes all responsibility
and liability for
the payment of any taxes due on money received from COMPANY under this
Agreement. Payment hereunder shall
represent full and complete compensation for all obligations assumed by the
SUPPLIER under this Agreement. 3.
SUPPLIER Responsibilities.
SUPPLIER shall use its best efforts to provide the Services in accordance
with the terms hereof, to keep COMPANY advised of the status of the Services, to
permit any representative duly authorized in writing by COMPANY to review and
observe from time to time said Services as are susceptible to such review, to
provide COMPANY with such reports, descriptions, outlines, procedures and the
like, as are appropriate to the nature of the Services contemplated and to keep
records of hours worked and cost of materials used, as well as other reasonable
out‑of‑pocket expenses, which records COMPANY's duly authorized
representative may examine upon reasonable notice to SUPPLIER.
If SUPPLIER is granted a privileged account on COMPANY computer system(s),
use of such account shall be in accordance with COMPANY’s policy(ies) and such
account is subject to audit by COMPANY at any time. 4. Confidential
Information; Rights to Inventions and Copyrights.
(a) Any information (i) disclosed by COMPANY to SUPPLIER or
learned by SUPPLIER from COMPANY either orally, electronically, visually or in a
document or other tangible form which is either identified as or should be
reasonably understood to be confidential and/or proprietary, including, but not
limited to, existing or contemplated machines, products, processes, techniques
or know‑how, marketing plans and strategies, financial information and
projections and customer and supplier lists and information and (ii) any
proprietary or confidential information or data developed pursuant to the
performance of the Services contemplated hereunder, shall not be disclosed by
SUPPLIER or its employees, representatives or agents to others or used for
SUPPLIER's own benefit without the prior written consent of COMPANY. Notwithstanding the foregoing, information shall not be
considered confidential, proprietary or sensitive only to the extent that such
information (a) is already known to SUPPLIER and not subject to any
confidentiality restrictions at the time it is obtained from COMPANY, (b) is or
becomes publicly known through no wrongful act of SUPPLIER, or (c) is rightfully
received by SUPPLIER from a third party without restriction on further
disclosure. In the event of a
breach or a threatened breach of the terms and conditions of this section,
COMPANY shall be entitled to immediate injunctive relief to prevent the use or
disclosure of proprietary or confidential information, in addition to all other
remedies available to it at law or equity.
All materials supplied to SUPPLIER by COMPANY, and any copies thereof,
shall be returned to COMPANY within thirty (30) days after the completion of any
work under the Agreement or within ten (10) days after COMPANY requests the
return thereof. Access to COMPANY's
computer system(s) is granted solely for the work contracted and for no other
purpose whatsoever. (b)
Any documentation, plans, specifications or other similar type deliverables
created by SUPPLIER in connection with or during the performance of the Services
shall be considered a work made for hire, to the fullest extent permitted by law
and all right, title and interest therein, including the worldwide copyrights,
shall be the property of COMPANY as the employer and party specially
commissioning said work. In the
event that any said copyrightable work or portion thereof shall not be legally
qualified as a work made for hire, or shall subsequently be so held to not be a
work made for hire, SUPPLIER agrees to assign, and does hereby so assign to
COMPANY, all right, title and interest in and to said work or portion thereof,
including but not limited to the worldwide copyrights, extensions of such
copyrights, and renewal copyrights therein, and further including all rights to
reproduce the copyrighted work in copies or phonorecords, to prepare derivative
works based on the copyrighted work, to distribute copies of the copyrighted
work, to perform the copyrighted work publicly, to display the copyrighted work
publicly, and to register the claim of copyright therein.
SUPPLIER, without charge to COMPANY, shall duly execute, acknowledge and
deliver to COMPANY all such further papers, including assignments and
applications for copyright registration or renewal, as may be necessary to
enable COMPANY to publish or protect said words by copyright or otherwise in any
and all countries and to vest title to said works in COMPANY, or its nominees,
their successors or assigns, and shall render all such assistance as COMPANY may
require in any proceeding or litigation involving the rights in said works. [c] The term “invention” shall mean any idea, concept,
know-how, technique or copyrightable work, other than that covered in
subsection (b) above, whether published or unpublished that SUPPLIER first
conceives or reduces to practice while in performance of Services during the
course of a project, and for which a patent, copyright, trademark or service
mark application is filed. Inventions
will be treated as follows: (1)If made by SUPPLIER, it shall remain the property of
SUPPLIER. (2)If made by COMPANY, it shall remain the property of
COMPANY. (3)If made by the personnel of both parties, it and all
patent, copyright, trademark or service mark rights issued thereof shall be
jointly owned by COMPANY and SUPPLIER without accounting. Each party shall have the right to grant licenses to third
parties or assign its rights therein without the consent of the other. All licenses granted to either party, if
any, will include the right to make, have made, use, have used, lease, sell
and/or otherwise transfer any apparatus, and/or practice and have practiced any
method and shall include the right to grant, directly or indirectly, revocable
and irrevocable sublicenses to such party’s subsidiaries or affiliates.
Nothing contained in this Agreement shall be deemed to grant any license
under any patent, copyright, trademark, service mark or other application as
arising out of inventions created as a result of work performed outside of this
Agreement. (d) SUPPLIER shall not originate any publicity, news release, technical article or other public announcement, written or oral, whether to the public press or otherwise, relating to this Agreement or to performance hereunder or the existence of an arrangement between the parties without the prior written consent of COMPANY. 5.
Exhibits.
All personnel providing material portions of the Services must be
approved by COMPANY in writing. Personnel
shall have adequately performed similar duties for other companies and possess
not only the appropriate technical skills, but also the ability to communicate
clearly to COMPANY and to follow directions.
COMPANY may reject personnel based on their work profile or, failure
to successfully complete all COMPANY
Safety
, cGMP requirements
and others as established,
and once
Services have commenced, due to his/her
performance. Unless otherwise agreed to by COMPANY in writing, SUPPLIER will
maintain continuity of personnel for the duration of an engagement, unless
extended illness or employment termination prevent SUPPLIER from doing so. Each
employee, representative or agent of SUPPLIER who performs work pursuant to this
Agreement shall execute an agreement in the form of Exhibit A
hereto. SUPPLIER represents that it
and its personnel providing services are not employees of any University or
institution of higher learning. 6. Term. The term of this Agreement
shall be from the date hereof to Date
____________.
Individual Services commencing prior to the termination date will be
allowed to run to completion under these terms and conditions.
COMPANY reserves the right to terminate
upon (5) days of written notice, 7.
Insurance. SUPPLIER and its
permitted subcontractors agree to procure and maintain in full force and effect
during the term of this Agreement valid and collectible insurance policies in
connection with its activities as contemplated hereby which policies shall
provide for the type of insurance and amounts of coverage as follows:
(a) Comprehensive general liability insurance covering premises,
products, completed operations, independent contractors, personal injury and
blanket broad form contractual liability. Minimum
coverage required is:
Bodily Injury
$1,000,000
each person
$2,000,000 per occurrence
Property Damage
$1,000,000
per occurrence
or
Bodily Injury & Property Damage
$2,000,000 combined single limit,
per occurrence
(b) Statutory workers’ compensation insurance with statutory limits for
the States where any Services is to be provided.
(c) Employers’ liability insurance with limits of not less than
$500,000 per occurrence.
(d) Comprehensive automobile liability insurance, for all owned, hired or
used vehicles, covering bodily injury and property damage, with coverage
identical to that in subsection (a) above.
(e) Any insurance required by any employee benefit act or any applicable
statute or governmental regulation.
SUPPLIER will designate COMPANY as “additional insured” under each
section of its Comprehensive General Liability and Automobile Liability
policies. Upon COMPANY's request,
SUPPLIER shall provide to COMPANY a certificate of coverage or other written
evidence reasonably satisfactory to COMPANY of such insurance coverage.
The evidences shall include the agreement for the insurer to give notice
to COMPANY at least thirty (30) days prior to the effective date of any
cancellation, lapse or material change in the policy. 8.
Warranty. Supplier
represents and warrants to COMPANY that:
(a) The Services provided pursuant to this Agreement are of merchantable
quality, conform to all aspects of any specifications provided by COMPANY or the
manufacturer, or both, and is suitable for COMPANY’s intended uses and
purposes in the ordinary course of its business to the extent that such uses and
purposes are known or reasonably should be known to SUPPLIER;
(b) The Services provided in connection with this Agreement will comply
with all applicable Federal, State or Municipal statutes, laws, rules or
regulations, permits, licenses and certificates, including those relating to
occupational health and safety. Without
limiting the foregoing, SUPPLIER represents and warrants that it shall comply
with all present and future statutes, laws, ordinances and regulations relating
to the provision of the Services being provided hereunder, including, without
limitation, those enforced by the Department of Labor under OSHA.
(c) The performance of its obligations under this Agreement will not
result in a violation or breach of, and will not conflict with or constitute a
default under, its Certificate of Incorporation or corporate by laws or any
agreement, contract, commitment or obligation to which SUPPLIER or any of its
Affiliates is a party or by which it is bound;
(e) Any software used by SUPPLIER in providing the Services does
not infringe upon the Intellectual Property Rights of any third party;
(f) Services shall be performed in a professional manner in accordance
with industry standards and practices applicable to the performance of such
Services;
(g) All employees of SUPPLIER, and its permitted subcontractors, will
obey facility safety and environmental standards; and
(h) SUPPLIER shall have obtained all necessary permits, licenses and
certifications, including for its employees, for operating and maintaining
equipment and for performing Services. All third
party warranties and representations shall be for the benefit of COMPANY, its
customers and the users of the products and/or services in which they may be
incorporated. 9. Indemnification.
Notwithstanding any provision(s) of SUPPLIER's proposal(s) attempting to
limit the amount of SUPPLIER's liabilities, if any, SUPPLIER shall indemnify and
hold harmless COMPANY and its Affiliates, and their officers, directors and
employees, from and against any and all claims, losses, damages, judgments,
costs, awards, expenses (including reasonable attorneys' fees) and liabilities
of every kind (collectively, "Losses") arising out of or resulting
from (i) any breach by SUPPLIER of any of its warranties, guarantees,
representations, obligations or covenants contained herein and (ii) any
negligent acts or omissions or the intentional or willful misconduct of any of
SUPPLIER’s personnel. (iii)
COMPANY’s property, and arising
directly or indirectly from SUPPLIER’s negligence or breach of any provision
of this Agreement, (iv) any personal injury claim or loss arising, directly or
indirectly, from SUPPLIER’s negligence or breach of any provision of this
Agreement, (v) SUPPLIER’s breach of any confidentiality obligation under
this
Agreement, and (vi) the work product, or any portion thereof, violating any
patent, copyright or other proprietary right of any third person. 10.
Independent Contractor. It
is expressly stipulated, agreed and understood between the parties that the
relationship between SUPPLIER and COMPANY shall be that of independent
contractor and not employer‑employee or principal‑agent.
Neither party shall have the authority to legally bind the other in
contract, debt or otherwise. 11.
Assignment; Etc. This
Agreement shall inure to the benefit of and be binding upon the parties hereto
and their respective permitted successors and assigns.
Nothing contained herein shall give to any other person any benefit or
any legal or equitable right, remedy or claim.
Anything contained herein to the contrary notwithstanding, this
Agreement shall not be assignable by SUPPLIER without the prior written consent
of COMPANY, which consent may be withheld in the sole discretion of COMPANY.
COMPANY may, without the consent of SUPPLIER, sell, assign or otherwise
transfer this Agreement and the rights, benefits and duties hereunder to any
affiliate of COMPANY. 12.
Complete Agreement. This
Agreement and the other writings referred to herein or delivered pursuant
hereto which form a part hereof contain the entire understanding of the parties
with respect to its subject matter. There
are no restrictions, promises, warranties, covenants or undertakings other than
those expressly set forth herein or therein.
This Agreement supersedes all prior agreements and understandings among
the parties with respect to its subject matter. This Agreement may be amended only by a written instrument
duly executed by the parties hereto. 13.
Notices. All
notices, claims, certificates, requests, demands and other communications
hereunder shall be in writing and shall be delivered personally or sent by
facsimile transmission, air courier, or registered or certified mail, return
receipt requested, addressed to the address set forth at the beginning of this
Agreement, or to such other address as the party to whom notice is to be given
may have furnished to the other parties in writing in accordance herewith.
Any such communication shall be deemed to have been delivered (i) when
delivered, if delivered personally, (ii) when
sent (with confirmation received), if sent by facsimile transmission on a
business day, (iii) on the first business day after dispatch (with confirmation
received), if sent by facsimile transmission on a day other than a business day,
(iv) the first business day after dispatch, if sent by air courier, and (v) the
third business day after mailing, if sent by mail.
14.
Severability In
the event that any provision of this Agreement would be held in any jurisdiction
to be invalid, prohibited or unenforceable for any reason, such provision, as to
such jurisdiction, shall be ineffective, without invalidating the remaining
provisions of this Agreement or affecting the validity or enforceability of such
provision in any other jurisdiction. Notwithstanding
the foregoing, if such provision could be more narrowly drawn so as not to be
invalid, prohibited or unenforceable in such jurisdiction, it shall, as to such
jurisdiction, be so narrowly drawn, without invalidating the remaining
provisions of this Agreement or affecting the validity or enforceability of such
provision in any other jurisdiction. 15.
Dispute Resolution. Any controversy
or claim arising out of or relating to this Agreement or the validity,
inducement, or breach thereof, shall be settled by arbitration before a single
arbitrator in accordance with the Commercial Arbitration Rules of the American
Arbitration Association (“AAA”) then pertaining, except where those rules
conflict with this provision, in which case this provision controls.
The parties hereby consent to the jurisdiction of the Federal District
Court for the District of New Jersey for the enforcement of these provisions and
the entry of judgment on any award rendered hereunder.
Should such court for any reason lack jurisdiction, any court with
jurisdiction shall enforce this clause and enter judgment on any award.
The arbitrator shall be an attorney specializing in business litigation
who has at least 15 years of experience with a law firm of over 25 lawyers or
was a judge of a court of general jurisdiction. The arbitration shall be held in New Brunswick, New Jersey
and the arbitrator shall apply the substantive law of New York, except that the
interpretation and enforcement of this arbitration provision shall be governed
by the Federal Arbitration Act. Within
30 days of initiation of arbitration, the parties shall reach agreement upon and
thereafter follow procedures assuring that the arbitration will be concluded and
the award rendered within no more than six months from selection of the
arbitrator. Failing such agreement,
the AAA will design and the parties will follow such procedures.
Each party has the right before or during the arbitration to seek and
obtain from the appropriate court provisional remedies such as attachment,
preliminary injunction, repletion, etc., to avoid irreparable harm, maintain the
status quo or preserve the subject matter of the arbitration.
THE ARBITRATOR SHALL NOT AWARD ANY PARTY PUNITIVE, EXEMPLARY OR
CONSEQUENTIAL DAMAGES, AND EACH PARTY HEREBY IRREVOCABLY WAIVES ANY RIGHT TO
SEEK SUCH DAMAGES. 16.
Governing Law. This
Agreement shall be governed by and construed in accordance with the laws of the
Commonwealth of Puerto Rico applicable to contracts made and performed wholly
therein. 17.
Waivers. The
waiver by any party of a breach of any provision of this Agreement shall not
operate or be construed as a waiver of any subsequent breach.
18. Business Continuity. SUPPLIER is now planning and taking action to implement and will continue to implement, in a commercially reasonable manner, any and all measures to make all of its systems and software Year 2000 compliant. SUPPLIER will perform the Services strictly according to the terms of this Agreement and otherwise shall meet the needs of its relationship with COMPANY, including preparation of estimates, performance schedules, orders, confirmations and delivery of conforming Services, invoices and collection of payments in a timely and efficient manner throughout the term of this Agreement. 19.
Counterparts. This
Agreement may be executed in any number of counterparts, and each such counterpart
hereof shall be deemed to be an original instrument, but all such counterparts
together shall constitute but one agreement.
IN WITNESS WHEREOF,
the parties hereto have caused this Agreement to be duly executed as of the day
and year first above written. CUSTOMER'S NAME By: ______________________ By: __________ Date: ______________________________ EXHIBIT A SERVICE
RATES
FOR 2005 – Proposal
(Copy
of the Proposals to be attached to this contract as part of the Exhibit A) CONFIDENTIALITY,
COPYRIGHT AND INVENTION AGREEMENT
In
connection with the Professional Services Agreement dated__________,
("Agreement"), between COMPANY
INC Allen Enterprises, ("SUPPLIER") and CUSTOMER'S NAME
("COMPANY"), and for good and valuable consideration, the receipt of
which is hereby acknowledged, the undersigned employee, consultant or agent of
SUPPLIER, as the case may be ("EMPLOYEE"), hereby agrees as follows: 1.
EMPLOYEE acknowledges that he/she may have access to information, either
orally, electronically, visually or in a document or other tangible form, which
COMPANY considers confidential, proprietary, and/or sensitive, the disclosure of
which could result in substantial and irreparable damage to COMPANY's
competitive advantage. EMPLOYEE
agrees that he/she will regard and preserve as confidential all information
received or learned from COMPANY, its affiliate companies or its suppliers in
connection with its activities under the Agreement, and will not, without the
prior written consent of COMPANY, disclose to any person, firm or enterprise, or
use for his/her own benefit, any such information.
Notwithstanding the foregoing, information shall not be considered
confidential, proprietary or sensitive only to the extent that such information
(a) is already known to EMPLOYEE and not subject to any confidentiality
restrictions at the time it is obtained from COMPANY, (b) is or becomes publicly
known through no wrongful act of EMPLOYEE, or (c) is rightfully received by
EMPLOYEE from a third party without restriction on further disclosure.
In the event of a breach or a threatened breach of the terms and
conditions of this section, COMPANY shall be entitled to immediate injunctive
relief to prevent the use or disclosure of proprietary or confidential
information, in addition to all other remedies available to it at law or equity.
All materials supplied to EMPLOYEE by COMPANY, and any copies thereof,
shall be returned to COMPANY within thirty (30) days after the completion of any
work under the Agreement or within ten (10) days after COMPANY requests the
return thereof. Access to COMPANY's
computer system(s) is granted solely for the work contracted and for no other
purpose whatsoever. 2.
Any documentation, plans, specifications or other similar type
deliverables created by EMPLOYEE in connection with or during the performance of
Services hereunder shall be considered a work made for hire, to the fullest
extent permitted by law, and all right, title and interest therein, including
the worldwide copyrights, shall be the property of COMPANY as the employer and
party specially commissioning said work. In
the event that any said copyrightable work or portion thereof shall not be
legally qualified as a work made for hire, or shall subsequently be so held to
not be a work made for hire, EMPLOYEE agrees to assign, and does hereby so
assign to COMPANY, all right, title and interest in and to said work or portion
thereof, including but not limited to, the worldwide copyrights, extensions of
such copyrights, and renewal copyrights therein, and further including all
rights to reproduce the copyrighted work in copies or phono records, to prepare
derivative works based on the copyrighted work, to distribute copies of the
copyrighted work, to perform the copyrighted work publicly, to display the
copyrighted work publicly, and to register the claim of copyright therein.
EMPLOYEE, without charge to COMPANY, shall duly execute, acknowledge and
deliver to COMPANY all such further papers, including assignments and
applications for copyright registration or renewal, as may be necessary to
enable COMPANY to publish or protect said words by copyright or otherwise in any
and all countries and to vest title to said works in COMPANY, or its nominees,
their successors or assigns, and shall render all such assistance as COMPANY may
require in any proceeding or litigation involving the rights in said works. 3. The term
“invention” shall mean any idea, concept, know-how, technique or
copyrightable work, other than that covered in subsection (b) above,
whether published or unpublished that SUPPLIER first conceives or reduces to
practice while in performance of Services during the course of a project, and
for which a patent, copyright, trademark or service mark application is filed.
Inventions will be treated as follows: (1)If made by SUPPLIER, it shall remain the property of
SUPPLIER. (2)If made by COMPANY, it shall remain the property of
COMPANY. (3)If made by the personnel of both parties, it and all
patent, copyright, trademark or service mark rights issued thereof shall be
jointly owned by COMPANY and SUPPLIER without accounting.
Each party shall have the right to grant licenses to third parties or
assign its rights therein without the consent of the other. All
licenses granted to either party, if any, will include the right to make,
have made, use, have used, lease, sell and/or otherwise transfer any apparatus,
and/or practice and have practiced any method and shall include the right to
grant, directly or indirectly, revocable and irrevocable sublicenses to such
party’s subsidiaries or affiliates. Nothing
contained in this Agreement shall be deemed to grant any license under any
patent, copyright, trademark, service mark or other applications arising out of
inventions created as a result of work performed outside of this Agreement. 4.
If EMPLOYEE is granted a privileged account on COMPANY's computer
system(s), it is subject to audit by COMPANY at any time.
Employee Signature: ______________________________
Employee Name:
_______________________________
Social Security #:
_______________________________ Copyright (C) Dale M. Allen, San Juan, Puerto Rico, 2011 |
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