Exhibit 10.37
CONSULTING SERVICES AGREEMENT
THIS AGREEMENT is made by and between S-CUBED INTERNATIONAL CORPORATION
("S-Cubed"), P.O. Box 8163, Stamford, Connecticut 06905 and COMPUTRON SOFTWARE,
INC. ("Computron"), 301 Route 17 North, Rutherford, New Jersey 07070.
WITNESSETH:
WHEREAS, Computron licenses computer software products ("Product") to third
party users ("End Users"); and
WHEREAS, Computron, in connection with each licensing agreement, often contracts
to provide the End User with professional services ("Client Services")
including, without limitation, consulting, installation, implementation, data
entry and conversion services, related to the Product to address the needs and
requirements expressed by the End User; and
WHEREAS, Computron from time to time acquires from third parties programming and
related services ("Programming Services"; Client Services and Programming
Services hereinafter sometimes collectively referred to as "Services"); and
WHEREAS, S-Cubed is in the business of providing Services; and
WHEREAS, Computron desires to have S-Cubed provide (a) Client Services to
Computron's End Users under the direction of Computron's personnel ("Client
Manager") and (b) Programming Services to Computron; and
WHEREAS, S-Cubed desires to provide Services to Computron as required by
Computron from time to time, in accordance with the terms and conditions set
forth hereinafter.
NOW, THEREFORE, Computron and S-Cubed hereto, intending to be legally bound,
hereby agree as follows:
1. AUTHORIZATION
1.1 From time to time during the term of this Agreement, the specific
Services to be performed by S-Cubed shall be designated in a separate
writing ("Work Order") signed by Computron and S-Cubed authorized
representatives (for purposes of this Agreement, Computron's authorized
representatives with respect to (a) Client Services shall only be
Computron's national director of professional services, and (b)
Programming Services shall only be either Computron's Senior Vice
President of Research & Development or Director, Product Management,
and, in either case, his/her supervisor(s), and any other Computron
employee so designated in writing by one of the foregoing). A suggested
form of Work Order for Client Services is attached to this Agreement as
EXHIBIT A and a suggested form of Work Order for Programming Services
is attached to this Agreement as EXHIBIT B. Each Work Order shall be
governed by this Agreement. However, in the event of any conflict
between this Agreement and a Work Order, the provisions of the Work
Order shall prevail.
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1.2 Except as evidenced by actual Work Orders executed, in their sole
discretion, by both parties hereunder, (a) Computron does not, by
entering into this Agreement, guarantee to S-Cubed any minimum amount
of Services to be referred to S-Cubed under this Agreement; and (b)
S-Cubed does not guarantee to Computron the availability of S-Cubed to
perform any particular Services under this Agreement.
2. COMPUTRON'S OBLIGATIONS
Subject to the terms and conditions of this Agreement, Computron shall,
during the term of this Agreement:
2.1 Provide to S-Cubed's employees training sessions relating to Product
owned by Computron ("Computron Product") in order to familiarize said
employees with the Computron Product and enable such employees to earn
appropriate Computron certification with respect to specific Computron
Product modules. The fee for any such training and certification shall
be charged by Computron to S-Cubed at Computron's then current price
list rates. S-Cubed shall bear the cost of transportation, living
accommodations and meals for its employees. Training sessions shall be
held at Computron's facilities, or other location designated by
Computron, in accordance with Computron's normal published schedules.
2.2 Grant, pursuant to the terms and conditions set forth herein, to
S-Cubed, without charge, and S-Cubed accepts, a non-exclusive,
non-transferable, royalty free license to use the Computron Product,
and related documentation, solely as follows:
2.2.1 One (1) copy of the Computron Product may be installed
at the S-Cubed location set forth above. S-Cubed shall
make no copies of the Computron Product except for one
(1) backup copy. Employees or permitted subcontractors
of S-Cubed performing Services hereunder may access and
use the Computron Product from any remote location. The
parties may also agree in writing to have the Computron
Product installed at additional S-Cubed or
subcontractor locations.
2.2.2 S-Cubed shall have the limited right to use the
Computron Product only as necessary to perform the
Services under this Agreement. No other rights with
respect to the Computron Product are granted to
S-Cubed. Without limiting the generality of the
foregoing, S-Cubed shall not (a) use the Computron
Product to process its own business data, nor (b) give
the Computron Product to, nor install the Computron
Product with, any third parties, including, without
limitation, prospective customers or licensees for
testing or evaluation purposes.
2.2.3 Computron shall, during the term of this Agreement,
maintain and support the Computron Product installed at
the S-Cubed location in good operating condition and at
a performance level in accordance with the current
published documentation.
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3. S-CUBED'S OBLIGATIONS
Subject to the terms and conditions of this Agreement, S-Cubed shall,
during the term of this Agreement:
3.1 At all times maintain such number of qualified employees as the parties
shall agree, from time to time during the term of this Agreement, are
sufficient to enable S-Cubed to adequately provide the Services under
then outstanding Work Orders.
3.2 Render the Client Services referenced in any applicable Work Order
hereunder to Computron's End User in cooperation with Computron and
Computron's designated Client Manager and in accordance with this
Agreement and Computron's standard rules of engagement, as provided to
S-Cubed from time to time. Unless otherwise agreed to by Computron's
Client Manager, S-Cubed shall only use qualified employees,
appropriately certified by Computron with respect to the applicable
Product modules as provided under Paragraph 2.1 above (appropriate
qualifications and certification to be determined by Computron's Client
Manager), to provide Client Services hereunder to End Users.
3.3 Accurately complete, in a prompt and timely manner, all records
reasonably required by Computron in the performance of the Client
Services for End Users, which records shall be (a) retained by S-Cubed
for a period of at least two (2) years following completion of the
applicable Client Services, and (b) subject to inspection by Computron
and/or the End User at any time during that period, upon reasonable
prior notice to S-Cubed.
3.4 Together with its employees, agents and representatives, perform the
Client Services in a courteous, professional and skilled manner, follow
the directives of Computron's Client Manager and timely report to
Computron's Client Manager all concerns communicated by the End User.
S-Cubed shall not directly respond to any non-routine communications
received from the End User unless and until S-Cubed has so informed
Computron of such communication and Computron's authorized
representative directs S-Cubed to so respond.
3.5 Unless otherwise agreed to in writing by an authorized representative
of Computron, not provide Client Services with respect to Computron
Product to any End User, except (a) as a subcontractor of Computron
under a Work Order in accordance with Paragraph 1.1 above; or, but only
with the prior written consent of an authorized representative of
Computron, (b) under direct contract with an End User which S-Cubed
knows has separately contracted with Computron for Computron to provide
project management in connection with the Client Services to be
provided by S-Cubed, in which case S-Cubed shall follow the directives
of Computron's Client Manager in performing said Client Services.
3.6 Together with its employees, agents and representatives, at all times
promote the good will of Computron, Computron's personnel and the
Computron Product.
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4. OWNERSHIP OF WORK PRODUCT OF PROGRAMMING SERVICES
4.1 Computron and S-Cubed agree that, unless otherwise expressly specified
in the applicable Work Order, all work product created by S-Cubed
pursuant to the Programming Services under this Agreement
(collectively, the "Work Product") shall belong exclusively to
Computron, whether or not Computron uses such material, and S-Cubed
hereby irrevocably assigns and shall cause its employees, agents and
subcontractors to irrevocably assign, all rights of every kind in the
Work Product to Computron, including, without limitation, all
copyrights. No rights in or to the Work Product are reserved to S-Cubed
or its employees, agents or subcontractors. Computron shall have the
right to use, in any media, and by any means and methods, now or
hereafter known, all of the Work Product, any part or parts thereof, or
none of the Work Product, as Computron sees fit, and Computron may
alter the Work Product, add to it, or combine the Work Product with any
other work or works, in Computron's sole discretion.
4.2 S-Cubed hereby warrants and represents to Computron that the Work
Product will not be copied, without permission, from the work of any
third party, that Computron will own, pursuant to this Agreement, all
necessary proprietary rights (including, without limitation, patent,
trademark, trade secrets and copyright rights) in the Work Product, and
that the Work Product will not infringe upon the proprietary rights of
third parties. S-Cubed hereby agrees to execute and deliver, and to
cause its employees and subcontractors to execute and deliver, all
further instruments and documents as Computron shall deem necessary or
advisable to evidence, establish, maintain or defend Computron's rights
in or to the Work Product (for example, any forms required by the
Copyright Office).
5. INDEMNITIES
5.1 Computron shall defend, indemnify and hold harmless S-Cubed from and
against any claims by an End User relating to (a) the Computron
Product's failure to perform in accordance with Computron's End User
documentation, other than as a result of changes or modifications made
to the Computron Product, or Client Services provided to the End User,
by anyone other than Computron personnel; or (b) a breach by Computron
of the Product license agreement with the End User, which breach is not
attributable to the negligence or performance of S-Cubed's personnel.
5.2 S-Cubed shall defend, indemnify and hold harmless Computron from and
against any claims relating to the negligence or willful misconduct of
S-Cubed or any breach by S-Cubed of this Agreement, including, without
limitation, (a) the Services provided by S-Cubed, its agents, or its
employees; and/or (2) any statements, actions, or services of S-Cubed
not expressly authorized by this Agreement. S-Cubed shall defend,
indemnify and hold harmless Computron from and against any claims
relating to any claim of patent, copyright, trade secret or other
intellectual property right infringement made by third parties with
respect to the Work Product of the Programming Services, as the same is
provided to Computron by S-Cubed. Without limiting the generality of
the foregoing, S-Cubed, its principals, employees and subcontractors
shall fully cooperate in any defense by Computron of any such
infringement claims.
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5.3 Without limiting the generality of Paragraph 5.2 above, S-Cubed shall
reimburse Computron for the costs and expenses incurred in connection
with Computron's remedying of Product performance issues raised by the
End User which are reasonably determined by Computron to be
attributable to the Client Services provided by S-Cubed rather than to
attributes of the Product itself.
5.4 The indemnities provided for in Paragraphs 5.1 and 5.2 above are
conditioned upon (a) prompt written notice of an applicable claim to
the indemnifying party by the indemnified party; (b) sole control of
the defense and/or settlement of the claim, demand, or action by the
indemnifying party; and (c) the indemnified party's cooperation in the
defense of the claim, demand, or action. Further, the indemnification
shall include reimbursement for reasonable attorney fees and costs
associated with the defense of a claim.
5.5 The provisions of this Article 5 shall survive the termination of this
Agreement.
6. CONFIDENTIALITY
6.1 Each party agrees to keep confidential all non-public technical,
product, business, financial and other information of the other party
("Confidential Information"), and to use the Confidential Information
solely for the purpose of carrying out its obligations under this
Agreement. For purposes of this Agreement, the Product (other than
Product owned by S-Cubed), the Work Product of the Programming
Services, and related documentation, shall be deemed to be Confidential
Information of Computron.
6.2 The provisions of this Article 6 shall survive the termination of this
Agreement.
7. PRICE AND PAYMENT
7.1 Services provided hereunder by S-Cubed shall be paid for by Computron
at the pricing set forth in the rate schedule included in the
applicable Work Order.
7.2 S-Cubed will submit documented invoices for charges and reimbursable
expenses hereunder on a semi-monthly basis (unless otherwise provided
in the Work Order), and Computron will pay each invoice within thirty
(30) days following the receipt by Computron of (a) the invoice (and
any associated deliverable), with respect to Programming Services, or
(b) payment from the End User for the applicable Client Services
provided by S-Cubed. Any payment hereunder may be withheld by Computron
for so long as S-Cubed is delinquent in submitting to Computron any
documentation required by Computron in order to receive payment from
any End User.
7.3 If, as a result of End User dissatisfaction with the Client Services
provided by S-Cubed under this Agreement, Computron, in the exercise of
its reasonable business judgment, reduces, or issues a credit for all
or any portion of, the fee paid or to be paid by the End User to
Computron for said Client Services, then Computron shall be entitled to
make a pro-rata reduction in, or receive from S-Cubed a pro-rata credit
for, the fees paid or to be paid by Computron to S-Cubed, under the
applicable Work Order, for said Client
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Services; and Computron shall be entitled to offset any such pro-rata
reduction or credit against future amounts payable to S-Cubed under
this Agreement or otherwise.
7.4 When so provided in the applicable Work Order, S-Cubed will be
reimbursed for all necessary and reasonable travel, lodging and other
authorized out-of-pocket expenses incurred in the performance of the
Services, in accordance with Computron's policies for the reimbursement
of such expenses for its own employees.
8. TERM AND TERMINATION
8.1 This Agreement shall become effective on the date it has been executed
by the last party to sign this Agreement and shall continue until
terminated as provided below.
8.2 Either party may terminate this Agreement at any time, without cause,
upon at least thirty (30) days prior written notice to the other party,
in which case, unless otherwise agreed to in writing by the parties,
the parties shall wind up all joint activities with respect to Services
being performed by S-Cubed under existing Work Orders within ninety
(90) days of such termination.
8.3 Either party may terminate this Agreement at any time, for cause, upon
written notice to the other party, which termination shall be
immediately effective unless provided otherwise in such written notice,
in the event that such other party breaches a material obligation under
this Agreement. In the event of such a termination for cause, the
aggrieved party terminating this Agreement shall have the right to
determine whether or not S-Cubed shall continue providing Services
under any Work Order then outstanding, which determination shall
promptly be communicated to the other party in writing.
8.4 The provisions of this Agreement shall continue to apply to any
Services performed after the termination of this Agreement pursuant to
Paragraph 8.2 or 8.3 above.
8.5 Upon any termination of this Agreement, unless a temporary extension is
otherwise agreed to in writing by Computron to permit S-Cubed to
perform "wind-down" Client Services after said termination, the license
granted under Paragraph 2.2 above shall terminate and S-Cubed shall
deliver to Computron all copies of the Computron Product and any and
all documentation relating thereto and certify in writing to Computron
that the aforementioned has occurred.
8.6 For a period of one (1) year following termination of this Agreement by
(1) S-Cubed under Paragraph 8.2 above; or (2) Computron under Paragraph
8.3 above, S-Cubed shall not, without the prior written consent of
Computron's authorized representative (which consent may be conditioned
upon, among other things, payment to Computron by S-Cubed of a mutually
agreed to commission on the fees to be paid to the S-Cubed by the End
User), provide Client Services with respect to the Computron Product to
any End User for which S-Cubed provided Client Services under this
Agreement.
9. LIMITATION OF LIABILITIES
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9.1 Unless otherwise expressly provided in this Agreement, each party shall
bear its own costs and expenses relating to activities under this
Agreement.
9.2 Except in connection with Article 5, or breaches of Article 6, in no
event shall either party have a right to recover from the other party
any indirect, special, incidental, or consequential damages, including
lost profits.
10. STATUS OF THE PARTIES
The parties to this Agreement are independent contractors, and neither
party is authorized to act on behalf of the other or to bind the other to
any third party. This Agreement does not establish any relationship of
partnership or joint venture. S-Cubed is not considered a dealer or
distributor of the Product by virtue of this Agreement. Each party shall
bear responsibility for its own employees, including terms of employment,
wages, hours and required insurance. S-Cubed and its employees, agents and
legal representatives are not authorized to make any statements concerning
the Product, except statements that are contained in the End User
documentation or in other written literature furnished to S-Cubed for the
express purpose of public disclosure or dissemination.
11. NON-RESTRICTION
Nothing in this Agreement shall prevent either party, or its agents,
representatives, or assigns, from entering into a similar agreement with
any other party. This Agreement shall not be construed to restrict either
party from engaging in any activities with respect to competitive software
products or services.
12. NON-SOLICITATION OF EMPLOYEES
Each party agrees not to, without the prior written consent of the other
party, knowingly solicit for employment, hire or utilize the services of
any employee, agent, representative or consultant of the other party, or
assist any third party in so doing, for a period ending one year after
termination of this Agreement. In the event of a breach of this paragraph,
the breaching party shall pay to the other party a sum equal to one hundred
fifty percent (150%) of the annual compensation agreed to be paid by the
breaching party to such person. This remedy is in addition to any other
remedies available at law or in equity.
13. GENERAL TERMS
13.1 This Agreement will be governed by the laws of the State of New York,
without regard to its conflict-of-laws rules.
13.2 This Agreement sets forth the entire understanding, and hereby
supersedes any and all prior agreements, oral or written, heretofore
made, between the parties with respect to the subject matter of this
Agreement, and there are no representations, warranties, covenants,
agreements or understandings, oral or otherwise, express or implied,
affecting this Agreement not expressly set forth herein. No delay on
the part of either party in exercising any of its respective rights
hereunder or the failure to exercise the
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same, nor the acquiescence in or waiver of a breach of any term,
provision or condition of this Agreement shall be deemed or construed
to operate as a waiver of such rights or acquiescence thereto, except
in the specific instance for which given. None of the terms,
conditions or provisions of this Agreement shall have been held to
have been changed, varied, waived, modified or altered, except by a
statement in writing signed by duly authorized representatives of
both parties.
13.3 Neither this Agreement, nor any of the rights or interests of either
party hereunder, may be assigned, transferred or conveyed by that
party, by operation of law or otherwise, other than to an affiliate
of that party or to a successor to all, or substantially all, of the
properties, business or capital stock of that party, except upon the
express prior written consent of the other party. Notwithstanding the
foregoing, S-Cubed may subcontract its responsibilities under any
Work Order herein to Software Brewers Inc. ("SBI"); provided that
S-Cubed remains fully responsible and liable to Computron for the
proper performance of the obligations so subcontracted and for full
compliance with the terms and conditions of this Agreement by SBI.
13.4 This Agreement may be executed simultaneously in two counterparts,
each of which shall be deemed an original, but both of which together
shall constitute one and the same instrument. Facsimile signatures
are as legally effective as original signatures.
13.5 All notices (other than routine business communications) will be in
writing and will be sent by reputable "overnight" courier to the
addresses on the first page of this Agreement (until such time as one
party provides change of address to the other party). Notices to
S-Cubed shall be to the attention of J. Scott Rade, Vice President;
notices to Computron shall be to the attention of its General
Counsel. Notice shall be deemed given when sent in accordance with
the foregoing.
13.6 The invalidity or unenforceability of any term or condition of this
Agreement shall in no way affect the remaining terms or conditions.
As used in this Agreement, the singular of any term includes the
plural and the plural includes the singular, whenever the context so
requires. The paragraph headings in this Agreement are inserted for
convenience only and are not intended to affect the meaning or
interpretation of this Agreement.
13.7 Neither party shall be liable for delay or failure in the performance
of its obligations under this Agreement arising from any one or more
events which are beyond its reasonable control. Upon such delay or
failure affecting one party, that party shall notify the other party
and use all reasonable endeavors to cure or alleviate the cause of
such delay or failure with a view to resuming performance of its
contractual obligations as soon as practicable.
IN WITNESS WHEREOF, the parties have executed this Agreement as set forth below.
S-CUBED INTERNATIONAL CORPORATION COMPUTRON SOFTWARE, INC.
By: By:
--------------------------------- ---------------------------------
J. Scott Rade Michael R. Jorgensen
Vice President Executive Vice President and
Chief Financial Officer
Date: Date:
-------------------------------- --------------------------------
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EXHIBIT A
COMPUTRON SOFTWARE, INC.
CLIENT SERVICES WORK ORDER
This definition of professional services to be provided is made pursuant to the
Consulting Services Agreement dated ____________ between Computron Software,
Inc. (Computron) and S-Cubed International Corporation (S-Cubed).
In consideration for professional services to be performed for:
_______________________________________________________________, located at
_______________________________________________________________________________,
(End User) this Work Order is created and executed.
A. SCOPE OF SERVICES
B. EXPECTED DELIVERABLES TO END USER
C. TIME TABLE
D. PAYMENT TERMS AND CONDITIONS
E. CONSULTING FEES SCHEDULE AND REIMBURSABLE EXPENSES
F. EMPLOYEE NAME(S) FOR THIS WORK ORDER:
THIS WORK ORDER APPROVED BY:
S-CUBED INTERNATIONAL COMPUTRON SOFTWARE, INC.
CORPORATION
Signature:_______________________ Signature:_______________________
Name:____________________________ Name:____________________________
Title:___________________________ Title:___________________________
Date:____________________________ Date:____________________________
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EXHIBIT B
COMPUTRON SOFTWARE, INC.
PROGRAMMING SERVICES WORK ORDER
This definition of professional services to be provided is made pursuant to the
Consulting Services Agreement dated ____________ between Computron Software,
Inc. (Computron) and S-Cubed International Corporation (S-Cubed).
A. SCOPE OF SERVICES
B. EXPECTED DELIVERABLES
C. TIME TABLE
D. PAYMENT TERMS AND CONDITIONS
E. FEES AND REIMBURSABLE EXPENSES
F. EMPLOYEE NAME(S) FOR THIS WORK ORDER
G. LOCATION OF SERVICES
THIS WORK ORDER APPROVED BY:
S-CUBED INTERNATIONAL COMPUTRON SOFTWARE, INC.
CORPORATION
Signature:_______________________ Signature:_______________________
Name:____________________________ Name:____________________________
Title:___________________________ Title:___________________________
Date:____________________________ Date:____________________________
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