Exhibit 10.11
PROFESSIONAL SERVICES AGREEEMNT
This Professional Services Agreement dated 3-27-00, (the "Agreement") is between
ISES Corp. (Which together with its parent, affiliates and subsidiaries is
herein called "client"), and Icon Laboratories, Inc., a Florida corporation with
offices at 3636 Westown Parkway, Suite 101, West Des Moines, IA 50266
("Consultant").
In consideration to the mutual promises, covenants and conditions contained
herein, and for other good and valuable consideration the receipt and
sufficiency of which is hereby acknowledged, Client and Consultant agree as
follows:
1. Statement of Work
Consultant shall, from time to time, perform services specified on
individual Statements of Work ("SOW") which shall reference this Agreement
and shall be deemed a part hereof. The parties agree that time is of the
essence to this Agreement and to these Statements of Work. To be valid,
Statements of Work must be executed by Client and Consultant.
2. Cost and Payment
Client shall pay Consultant compensation according to the provisions of
each Statement of Work attached hereto. Unless otherwise specified, if
payment is based on an hourly rate, any periods of work of less than an
hour will be computed on a pro rata basis to the nearest half hour. When
travel has been approved in writing prior to the time the expense is
incurred, Client will reimburse Consultant for travel expenses. Client
shall make payment to Consultant within thirty (30) days after receipt by
Client of Consultant's invoices and any supporting documentation, if
requested. A 1.5% per month late fee will be added to all late invoices.
Each invoice submitted by Consultant will provide complete supporting
detail, including names(s) of person(s) who performed the services, dates
of services, hours or days worked and billing rates.
3. Confidentiality/Non-Disclosure and Publicity
a. Consultant agrees during the term of this Agreement and any Statements
of Work executed hereunder and thereafter to hold in confidence and
not to directly or indirectly reveal, report, publish, disclose or
transfer any Confidential Information to any person or entity, or
utilize any Confidential Information for any purpose except in the
course of the undersigned's work for Client. For purposes of this
Agreement, "Confidential Information" shall mean information or
material that is i) proprietary and/or confidential to Client; ii)
designated as Confidential Information and provided to Consultant by
Client; or iii) developed by Consultant for Client, of which the
undersigned obtained knowledge or access through or as a result of
Consultant's relationship with Client, including, but not limited to
any Confidential Information obtained from Client, prior to entering
into this Agreement. Confidential Information shall also include any
information which Client obtains from another party and which Client
treats as proprietary or designates as Confidential Information,
whether or not owned or developed by Client. Information publicly
known that is generally employed by trade at or after the time the
undersigned first learns of such information, or generic information
or knowledge which the undersigned would have learned in the course of
similar employment or
work elsewhere in the trade, shall not be deemed part of the
Confidential Information. At the termination of this Agreement, or any
Statement of Work executed hereunder, Consultant shall return all
Confidential Information related to the terminated project or, at
Client's option, destroy the Confidential Information and provide
Client with proof of such destruction.
b. The parties shall maintain the terms of this Agreement and any
Statements of Work executed hereunder in confidence and neither party
may originate any publicity, news release or other public announcement
relating to this Agreement or any Statement of Work without first
obtaining the other party's prior written consent, except as otherwise
required by law or governmental regulation (in which event reasonable
prior notice shall be given to the other party).
4. Ownership of Work Product
All discoveries, designs, information, ideas, artwork, and training
materials (including, but not limited to any leader's guide, student
guides, overheads, software, posters, and video tapes) developed by
Consultant as a result of performance of services hereunder, and/or
through the use of any of the Confidential Information or Client's
equipment or facilities ("Work Product") shall be transmitted only to
Client, is work made for hire, as provided by the United States
Copyright Act, and shall become the exclusive property of Client and
shall be regarded by Consultant as Confidential Information and subject
to the foregoing provisions. Consultant may not use such Work Product
for any other purpose without the express written consent of Client.
The foregoing restriction on use shall not apply to materials developed
by Consultant outside of the services provided hereunder and without
use of the Work Product or its derivatives.
5. Independent Contractor
The relationship of Consultant and Client shall be that of independent
contractors. Neither party, nor their agents or employees, shall be deemed
to be the agent or employee of the other. Neither party shall have the
right to bind the other, transact any business in the other's name or on
its behalf or incur any liability for or on behalf of the other.
Each party shall comply with all applicable federal, state and local wage
and tax laws relating to such party and shall be solely responsible for
paying all wages to its employees and agents, for obtaining insurance for
its employees and agents and for withholding and paying all applicable
federal, state, and social security taxes, unemployment taxes and any
similar taxes on behalf of its employees and agents.
6. Termination
a. Either party may immediately terminate this Agreement and/or any
associated Statement of Work without cause by giving the other party
thirty (30) days prior written notice.
b. For Cause--If Consultant fails to make any delivery in accordance with
the agreed delivery date or schedule or otherwise fails to observe or
comply with any of the other instructions, terms, conditions, or
warranties applicable to this Agreement, or fails to make progress so
as to endanger performance of this Agreement, or in the event of any
proceedings by or against Consultant in bankruptcy or insolvency or
appointment of a receiver or trustee or any assignment for the benefit
of creditors, Client may, in addition to any other right or remedy
provided by this Agreement or by law, terminate all or any part of
this Agreement by telegraphic or other written
notice to Consultant without any liability by Client to Consultant on
account thereof. In the event of termination for cause, Client may
produce or purchase, or otherwise acquire articles elsewhere on such
terms or in such manner as Client may deem appropriate.
c. Upon termination of this Agreement and/or any associated Statement of
Work, Consultant shall promptly return to Client, all Client's
property in its possession, including, but not limited to keys,
badges, access cards, documentation, software and disks, and shall
turn over to Client all Work Product prepared as of the effective
termination date and for which Client has paid.
d. In the event of termination, Client's obligation shall be limited to
paying Consultant for work authorized by Client and performed
satisfactorily prior to the effective date of termination.
e. Termination shall not effect Consultant's obligations under Sections
2,3,4,10,11.
7. Waiver/Amendment/Modification
No waiver, amendment or modification of any provision hereof or of a
Statement of Work shall be effective unless in writing and signed by the
party against whom such waiver, amendment or modification is sought to be
enforced. No failure to delay by either party in exercising any right,
power or remedy hereunder shall operate as a waiver of any such right,
power or remedy.
8. Notice
All notices, demands or consents required or permitted hereunder shall be
in writing and shall be delivered by overnight delivery, facsimile (with
confirmation copy by mail) or telex, or mailed to the respective parties at
the addresses first set forty above or at such other address as shall have
been given to the other party in writing for the purposes of this clause.
Notices to Consultant shall be sent to the attention of Alan Grau, Icon
Laboratories, Inc. 3636 Westown Parkway, Suite 101, West Des Moines, Iowa
50266. Notice to Client shall be sent to Steve Johnson, ISES Corporation,
2600 72nd Street, Suite C, Des Moines, IA 50322. Such notices and other
communications shall be deemed effective upon the earliest to occur of (i)
actual delivery, (ii) five days after mailing, addressed and postage
prepaid, return receipt requested, as aforesaid, (iii) one (1) business day
after transmission by overnight delivery, or (iv) the day of receipt where
receipt has been confirmed.
9. Severability
In the event that any one or more of the provisions contained herein shall
for any reason be held to be unenforceable or illegal in any respect, this
Agreement shall then be construed as if such unenforceable provision or
provisions had never be contained herein.
10. Jurisdiction/Choice of Law
The parties agree to submit to the jurisdiction of the State of Iowa and
further agree that this Agreement shall be construed and enforced in
accordance with the laws of the State of Iowa excluding its conflicts of
law principles.
11. Solicitation of Employment
Consultant may not solicit or hire any individuals who have been employed
by Client or any
of its affiliates during the 12-month period preceding such solicitation
and/or hiring. Client may not solicit or hire any individuals who have been
employed by Consultant or any of its affiliates during the 12-month period
preceding such solicitation and/or hiring.
12. Right of Assignment
Only Client may assign this Agreement. Such assignment may be to an
entity which acquires, directly or indirectly, substantially all of its
assets or merges with it, or any parent or subsidiary of such party,
provided that the acquiring or merging entity or such parent or
subsidiary agrees to be bound by all terms and conditions of this
Agreement. Subject to the above, this Agreement shall be binding upon
and inure to the benefit of the successors and assigns of the parties
hereto.
13. Complete Agreement/Conflicting Terms
a. Each party acknowledges that it has read this Agreement and agrees to
be bound by its terms and further agrees that it is the complete and
exclusive statement of the agreement and understanding between the
parties, which supersedes all previous understandings, negotiations,
and proposals, whether oral or written.
b. If there is a conflict between the terms and conditions of this
Agreement and those of any associated Statement of Work that has been
signed by both parties, the Statement of Work shall control.
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed by
their duly authorized representatives as of the day and year first above
written. This Agreement shall not be binding until it is signed by both parties.
CLIENT ICON Laboratories, Inc.
By: /s/ By: /s/
Name: Rick Grewell Name: Alan L. Grau
Title: President Title: President
Date: 3/27/00 Date: 3-27-00
STATEMENT OF WORK
AGREEMENT NO: ISES 01
March 13, 2000
[Confidential treatment has been requested for the remaining portion of this
Exhibit]