[SAIC LOGO]
Professional Services Agreement
(Time and Materials)
Contract No. SBSG-O1-09-015
This Agreement, effective October 7, 2001, is between Predictive Systems, Inc.
("Predictive"), a Delaware corporation, having an office at 19 West 44th Street,
New York, NY 10036 and Science Applications International Corporation ("SAIC"),
a Delaware corporation, having an office at 10260 Campus Point Drive, San Diego,
California 92121.
I. DESCRIPTION OF PROFESSIONAL SERVICES FOR TIME AND MATERIALS
SAIC shall provide to Predictive the Professional Services ("Services") as
described in specific Task Orders. The general scope of work for Task Orders
issued under this Agreement is as follows:
[***]
Services provided under Task Orders incorporated herein shall be provided
subject to the Terms and Conditions that follow.
II. PREDICTIVE AND SAIC TECHNICAL CONTACTS
Name: [***]
Title: Director
Predictive Systems, Inc.
19 West 44th Street
New York, NY 10036
E-mail: [***]
Tel. No. [***]
Fax No. [***]
Name: [***]
Title: Division Manager
Science Applications International Corporation
10260 Campus Point Drive, M/S B-1-E
San Diego, CA 92121
E-mail: [***]
Tel. No. [***]
Fax No. [***]
III. PREDICTIVE AND SAIC ADMINISTRATIVE CONTACTS
Name: [***]
Title: Associate General Counsel
Predictive Systems, Inc.
19 44th Street
New York, NY 10036
E-mail: [***]
Tel. No. [***]
Fax No. [***]
Name: [***]
Title: Sr. Contracts Representative
Science Applications International Corporation
10260 Campus Point Drive, M/S B-1-E
San Diego, CA 92121
E-mail: [***]
Tel. No. [***]
Fax No. [***]
In consideration of the mutual obligations assumed under this Agreement, SAIC
and Predictive agree to the Terms and Conditions attached hereto and
incorporated by reference and represent that this Agreement is executed by duly
authorized representatives as of the dates below.
***Represents material that has been redacted pursuant to a request for
confidential treatment pursuant to Rule 406 under the Securities Act of 1933, as
amended. Omitted material for which confidential treatment has been requested
has been filed separately with the Securities and Exchange Commission.
1
TERMS AND CONDITIONS
1. Services. Any Services to be furnished under this Agreement shall be
ordered by issuance of a Task Order as described and executed by the individuals
designated in Section III above. Only SAIC's designated Representative, as set
forth in Section III, is authorized to accept Task Orders. SAIC has the right,
at its sole discretion, to decline to accept specific Task Orders.
2. Place of Performance. Unless otherwise provided in this Agreement,
SAIC may perform the Services in whole or in part at SAIC's place of business,
Predictive's place of business, and/or such other locations as SAIC may select.
3. Effective Date: Term. This Agreement shall be effective as of the date
first above written (the "Effective Date") and shall continue in full force and
effect through December 31, 2002 (the "Term"), unless amended in writing by
mutual agreement of the parties, or terminated in accordance with Paragraph 10
hereof. The period of performance for Task Orders issued under this Agreement
will be as defined in the specific Task Order. Notwithstanding any provision
herein to the contrary, SAIC is not obligated to provide Services extending six
(6) months beyond the expiration or termination of this Agreement.
4. Payment Terms.
In cases where pre-payment is necessary to initiate work on a rapid turnaround
basis, pre-payment of the total amount identified in Exhibit B of the Task Order
is required prior to commencement of work. SAIC agrees to credit the Predictive
for any unused amounts within 30 days of project completion.
(a) The amount to be paid to SAIC for labor shall be computed by
multiplying the applicable hourly billing category and rate set forth in Exhibit
B by the number of direct hours performed per Task Order. Fractional parts of an
hour shall be payable on a prorated basis. The labor hour categories and billing
rates set forth in Exhibit B shall be effective through the Term of each Task
Order, at which time such rates shall be subject to renegotiation.
[***]
(c) Predictive shall have no obligation to pay SAIC more than the
Estimated Price. SAIC shall have no obligation to provide labor or incur costs
or expenses having a combined value more than the Estimated Price, even if the
Services have not been completed or the Deliverables delivered, or the results
desired by Predictive have not been achieved. The parties may, by mutual written
agreement, increase the Estimated Price.
(c) Predictive shall reimburse SAIC for all goods and materials
purchased in accordance with the individual Task Order.
(f) Invoiced amounts are immediately due and payable by either
electronic funds transfer
***Represents material that has been redacted pursuant to a request for
confidential treatment pursuant to Rule 406 under the Securities Act of 1933, as
amended. Omitted material for which confidential treatment has been requested
has been filed separately with the Securities and Exchange Commission.
1
(EFT) or by mail to the following location(s):
Science Applications International Corporation
Bank of America, San Francisco
Account No. [***]
ABA No. [***]
SWIFT: [***]
Reference: Task Order(s) and Invoice Numbers(s)
Or by mail:
Science Applications International Corporation
[***]
Atlanta, GA 30384-8347
Reference: Task Order(s) and Invoice Number(s)
(g) If Predictive's action or inaction results in non-receipt of
payment by SAIC for the total amount of an invoice within thirty (30) days of
such invoice, interest compounded at the rate of one percent (1%) per month
shall be charged on all amounts unpaid and outstanding. If Predictive's action
or inaction results in non-receipt of payment by SAIC, SAIC shall have the
right, exercisable in SAIC's sole discretion, in addition to its other rights
and remedies, to cease further performance of the Services hereunder.
(h) Bill To Address. The invoice will be mailed to:
Predictive Systems, Inc.
19 West 44th Street
New York, NY 10036
5. Resources to be Provided by Predictive
(a) Predictive shall provide, maintain and make available to SAIC, at
Predictive's expense and in a timely manner, the resources described in this
Section 5 and such other additional resources, as SAIC may from time to time
reasonably request in connection with SAIC's performance of the Services. Delays
in the provision of these resources may result in delays and/or additional cost
in performing the Services or Delivering the Deliverables.
(b) Predictive will designate and make available to SAIC qualified
Predictive personnel or representatives who will consult with SAIC on a regular
basis in connection with the Services. Predictive will furnish such
documentation or other information as is reasonably necessary to perform the
Services.
(c) Predictive shall furnish access to Predictive's premises, and
appropriate workspace for any SAIC personnel working at Predictive's premises,
as necessary for performance of those portions of the Services to be performed
at Predictive's premises.
***Represents material that has been redacted pursuant to a request for
confidential treatment pursuant to Rule 406 under the Securities Act of 1933, as
amended. Omitted material for which confidential treatment has been requested
has been filed separately with the Securities and Exchange Commission.
2
6. Confidentiality. In the event either party determines that it is
necessary to provide confidential, proprietary, or trade secret information to
the other party in connection with this Agreement, such disclosure will be made
in accordance with the provisions of the mutually executed Non-Disclosure
Agreement dated August 16, 2001. Nothing in this Agreement or in the
Non-Disclosure Agreement referred to in this section shall be deemed to restrict
or prohibit SAIC or Predictive from providing to others services and
deliverables the Same as or similar to the Services and Deliverables. In
providing any such similar services or deliverables to any third party, each
party shall keep confidential any of the other's confidential, proprietary or
trade secret information which is subject to the Non-Disclosure Agreement
executed pursuant to this section, in accordance with the requirements of such
agreement.
7. Intellectual Property.
(a) Predictive and SAIC shall each retain ownership of, and all right,
title and interest in and to, their respective, pre-existing Intellectual
Property (as hereinafter defined), and no license therein, whether express or
implied, is granted by this Agreement or as a result of the Services performed
hereunder. To the extent the parties wish to grant to the other rights or
interests in pre-existing Intellectual Property, separate license agreements on
mutually acceptable terms will be executed.
(b) SAIC grants to Predictive a royalty-free, paid up, worldwide,
perpetual, non-exclusive, non-transferable license to use any SAIC Intellectual
Property incorporated in any Deliverable, solely for Predictive's use of that
Deliverable for its internal business purposes. SAIC shall retain ownership of
and unrestricted right to use any Intellectual Property. The Services performed
and any deliverable items produced pursuant to this Agreement are not "works for
hire."
(c) As used herein, "Intellectual Property" shall mean inventions
(whether or not patentable), works of authorship, trade secrets, techniques,
know-how, ideas, concepts, algorithms, and other intellectual property
incorporated in any Deliverable and first created or developed by SAIC in
providing the Services.
8. Taxes. Predictive shall pay any and all sales, use, value added,
excise, import, privilege, or other similar taxes, levies or payments in lieu
thereof, including interest and penalties thereon, arising out of or in
connection with the performance of the Services by SAIC (other than those levied
on SAIC's income), imposed by any authority, government or governmental agency,
and shall comply with all applicable treaties, laws, rules, or regulations
relating thereto.
9. Termination. Either party may terminate this Agreement or individual
Task Orders hereunder for any reason upon 30 days written notice to the other
party. Termination will not affect payment obligations incurred under this
Agreement for Services performed prior to the effective date of termination, and
for any costs incurred, including, without limitation, commitments to purchase
products or services from third parties that SAIC entered into during the course
of performance hereunder prior to the effective date of termination. Such
reimbursable costs may include, but are not limited to, cancellation fees,
minimum consulting or material fees, and non-refundable charges or fees for
third party products or services.
3
10. Limited Warranty.
(a) SAIC warrants that the Services provided under this Agreement shall
be performed with that degree of skill and judgment normally exercised by
recognized professional firms performing services of the same or substantially
similar nature. In the event of any breach of the foregoing warranty, provided
Predictive has delivered to SAIC timely notice of such breach as hereinafter
required, SAIC shall, at its own expense, in its discretion either: (1)
re-perform the non-conforming Services and correct the non-conforming
Deliverables to conform to this standard; or (2) refund to Predictive that
portion of the amounts received by SAIC attributable to the non-conforming
Services and/or Deliverables. No warranty claim shall be effective unless
Predictive has delivered to SAIC written notice specifying in detail the
non-conformities within 90 days after performance of the non-conforming Services
or tender of the non-conforming Deliverables. The remedy set forth in this
Section 10(a) is the sole and exclusive remedy for breach of the foregoing
warranty.
(b) SAIC SPECIFICALLY DISCLAIMS ANY OTHER EXPRESS OR IMPLIED STANDARDS,
GUARANTEES, OR WARRANTIES, INCLUDING ANY WARRANTIES OF MERCHANTABILITY, FITNESS
FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT, AND ANY WARRANTIES THAT MAY BE
ALLEGED TO ARISE AS A RESULT OF CUSTOM OR USAGE, ANY WARRANTY OF ERROR-FREE
PERFORMANCE, OR ANY WARRANTY OF THIRD PARTY PRODUCTS, OR FUNCTIONALITY OF THE
PREDICTIVE'S HARDWARE, SOFTWARE, FIRMWARE, OR COMPUTER SYSTEMS.
(c) Predictive represents and warrants to SAIC that Predictive has the
right to use and furnish to SAIC for SAIC's use in connection with this
Agreement, any information, specifications, data or Intellectual Property that
Predictive has provided or will provide to SAIC in order for SAIC to perform the
Services and to create the Deliverables identified in Task Orders incorporated
into Exhibit A. Predictive further represents and warrants that possession and
use of that information, specifications and data by SAIC under the terms and
conditions of this Agreement will not constitute an infringement upon any
patent, copyright, trade secret, or other intellectual property right of any
third party
11. Limitation of Liability
(a) SAIC's total liability to Predictive for any and all liabilities,
claims or damages arising out of or relating to this Agreement, howsoever caused
and regardless of the legal theory asserted, including breach of contract or
warranty, tort, strict liability, statutory liability or otherwise, shall not,
in the aggregate, exceed the amount actually paid to SAIC under the specific
task order at issue.
(b) In no event shall either SAIC or Predictive be liable to the other
for any punitive, exemplary, special, indirect, incidental or consequential
damages (including, but not limited to, lost profits, lost business
opportunities, loss of use or equipment down time, and loss of or corruption to
data) arising out of or relating to this Agreement, regardless of the legal
theory under which such damages are sought, and even if the parties have been
advised of the possibility of such damages or loss.
4
12. Non-Waiver of Rights. The failure of either party to insist upon
performance of any provision of this Agreement, or to exercise any right, remedy
or option provided herein, shall not be construed as a waiver of the right to
assert any of the same at any time thereafter.
13. Rights and Remedies Not Exclusive. Unless otherwise expressly provided
herein, no right or remedy of a party expressed herein shall be deemed
exclusive, but shall be cumulative with, and not in substitution for, any other
right or remedy of that party.
14. Severability. If any covenant, condition, term, or provision contained
in this Agreement is held or finally determined to be invalid, illegal, or
unenforceable in any respect, in whole or in part, such covenant, condition,
term, or provision shall be severed from this Agreement, and the remaining
covenants, conditions, terms and provisions contained herein shall continue in
force and effect, and shall in no way be affected, prejudiced or disturbed
thereby.
15. Conflicting Provisions. This Agreement and all of the exhibits,
schedules, and documents attached hereto are intended to be read and construed
in harmony with each other, but in the event any provision in any attachment
conflicts with any provision of this Agreement, then this Agreement shall be
deemed to control, and such conflicting provision to the extent it conflicts
shall be deemed removed and replaced with the governing provision herein.
16. Assignment. Neither party may sell, assign, transfer, or otherwise
convey any of its rights or delegate any of its duties under this Agreement
without the prior written consent of the other party.
17. Applicable Law. This Agreement shall be governed by and construed
under the laws of the State of California, without regard to its laws relating
to conflict or choice of Laws
18. Interpretation. The captions and headings used in this Agreement are
solely for the convenience of the parties, and shall not be used in the
interpretation of the text of this Agreement. Each party has read and agreed to
the specific language of this Agreement; therefore no conflict, ambiguity, or
doubtful interpretation shall be construed against the drafter.
19. Disputes. Any controversy, claim or dispute ("Dispute") arising out
of or relating to this Agreement shall be resolved by binding arbitration in
accordance with the Commercial Arbitration Rules of the American Arbitration
Association then in effect. Before commencing any such arbitration, the parties
agree to enter into negotiations to resolve the Dispute. If the parties are
unable to resolve the Dispute by good faith negotiation, either party may refer
the matter to arbitration. The arbitration shall take place in the County of San
Diego, State of California, The arbitrator(s) shall be bound to follow the
provisions of this Agreement in resolving the dispute, and may not award any
damages, which are excluded by this Agreement. The decision of the arbitrator(s)
shall be final and binding on the parties, and any award of the arbitrator(s)
may be entered or enforced in any court of competent jurisdiction. Any request
for arbitration of a claim by either party against the other relating to this
Agreement must be filed no later than one year after the date on which SAIC
concludes performance under this Agreement.
5
20. Force Majeure. Neither party shall be liable for any failure of or
delay in performance of its (except for payment obligations) under this
Agreement to the extent such failure or delay is due to circumstances beyond its
reasonable control, including, without limitation, acts of God, acts of a public
enemy, fires, floods, power outages, wars, civil disturbances, sabotage,
terrorism, accidents, insurrections, blockades, embargoes, storms, explosions,
labor disputes (whether or not the employees' demands are reasonable and/or
within the party's power to satisfy), failure of common carriers, Internet
Service Providers, or other communication devices, acts of cyber criminals, acts
of any governmental body (whether civil or military, foreign or domestic),
failure or delay of third parties or governmental bodies from whom a party is
obtaining or must obtain approvals, authorizations, licenses, franchises or
permits, or inability to obtain labor, materials, power, equipment, or
transportation (collectively referred to herein as "Force Majeure"). Any such
delays shall not be a breach of or failure to perform this Agreement or any part
thereof and the date on which the obligations hereunder are due to be fulfilled
shall be extended for a period equal to the time lost as a result of such
delays.
21. Multiple Copies or Counterparts of Agreement. This Agreement may be
executed in one or more counterparts, each of which shall be deemed an original,
but all of which together shall constitute one and the same instrument. This
Agreement shall not be effective until the execution and delivery between each
of the parties of at least one set of the counterparts.
22. Notices. All notices or other written communication required or
permitted to be given under any provision of this Agreement shall be deemed to
have been given by the notifying party if mailed by certified mail, return
receipt requested, to the receiving party addressed to the mailing address set
forth in the first paragraph of this Agreement, or such other address as the
parties may designate in writing to the other parties. Additionally, notices
sent by any other means (i.e., facsimile, overnight delivery, courier, etc.) may
be acceptable subject to written confirmation of both the transmission and
receipt of the notice.
23. Relationship of Parties. SAIC is an independent contractor in all
respects with regard to this Agreement. Nothing contained in this Agreement
shall be deemed or construed to create a partnership, joint venture, agency, or
other relationship other than that of contractor and customer.
24. Third Party Beneficiaries. This Agreement does not create, and shall
not be construed as creating, any rights or interests enforceable by any person
not a party to this Agreement.
25. Waiver or Modification. This Agreement may be modified, or part or
parts hereof waived, only by an instrument in writing specifically referencing
this Agreement and signed by an authorized representative of the party against
whom enforcement of the purported modification or waiver is sought.
6
26. Solicitation or Hiring Other Party's Employees
(a) Neither Predictive nor SAIC's Secure Business Solutions Group,
without the prior written consent of the other party (the "Original Employer"),
shall solicit, induce or attempt to solicit or induce any Employee of the
Original Employer to become an employee or contractor ("Employee") of the
soliciting or inducing party during the term of this Agreement and for a period
of one year following the earlier of (i) expiration or termination of this
Agreement, or (ii) the date the Employee ceases to be employed by the Original
Employer. For purposes of this Paragraph, "Employee" shall mean and include any
employee or independent contractor employed at any time during the term of this
Agreement by an Original Employer.
(b) As material consideration to the other party for entering into this
Agreement, each party agrees that, whether or not it has breached subparagraph
(a) above, if it hires an Employee of an Original Employer prior to one year
following the earlier of (i) the expiration or termination of this Agreement, or
(ii) the date the Employee ceases to be employed by the Original Employer, thcn
the hiring party shall pay the Original Employer within ten (10) days following
hiring of the Employee an amount equal to six months salary to be paid to the
Employee by the new Employer.
(c) This Paragraph shall not apply to the soliciting or hiring of any
other party's employees in the event of the other party's insolvency,
bankruptcy, receivership, or any other cessation of business.
27. Entire Agreement. This Agreement, including any and all Exhibits
attached hereto, which are hereby incorporated by reference, constitutes the
entire agreement and understanding between the parties and supersedes and
replaces any and all prior or contemporaneous proposals, agreements,
understandings, commitments or representations of any kind, whether written or
oral, relating to the subject matter hereof or the Services or Deliverables to
be provided hereunder.
28. Survival. The provisions of sections 4, 6, 7, 9, 10, 11, and 19 shall
survive the termination or expiration of this Agreement.
AGREED BY:
PREDICTIVE SYSTEMS, INC.
By: /s/ K.M. SKELLY
Name: K.M. Skelly
Title: G.M. NY-NJ
Date: October 8, 2001
SCIENCE APPLICATIONS
INTERNATIONAL CORPORATION
By: /s/ MARIA-ELENA CANTERO
Name: Maria-Elena Cantero
Title: Sr. Contracts Representative
Date: October 8, 2001
7