Version 1.0 TechAlt Master Agreement # 2004-100
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[COMPANY LOGO]
TechAlt
AGREEMENT FOR CONSULTING SERVICES
BY AND BETWEEN
Arias Technology Corporation, Inc.
(Consultant)
AND
TechAlt, Inc.
(An Nevada Corporation)
Dated: October 11, 2004
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TABLE OF CONTENTS
SECTION PAGE
1. Definitions 3
2. Scope of Services 3
3. Term 3
4. Personnel, Staffing and Direction 4
5. Working Arrangement 4
6. Compensation 4
7. Travel and Other Expenses 4
8. Taxes 5
9. Invoicing and Payment 5
10. Title and Possession 5
11. Confidential Information 6
12. Guarantees 6
13. Product Warranty 7
14. Patent and Copyright Infringement 7
15. Indemnification 7
16. Limitation of Liability 8
17. Excusable Delays 8
18. Termination 8
19. Independent Contractor 9
20. Product(s) Support 10
21. Advertising 10
22. Availability 10
23. Assignability 10
24. Section Headings 10
25. Construction of Agreement 10
26. Consent to Breach Not a Waiver 11
27. Invalid Provision 11
28. Survival of Terms 11
29. Acknowledgement 11
Exhibit A - Work Specification
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AGREEMENT FOR CONSULTING SERVICES
This Agreement for Consulting Services ("Agreement") is entered into by and
between TechAlt, Inc, a Nevada corporation, (hereinafter referred to as
"TechAlt") and Arias Technology Corporation, Inc (hereinafter referred to as
"Consultant") with its principal place of business at _566 W. Lake Street, Suite
490, Chicago, IL, 60661.
Subject to the terms and conditions of this Agreement, Consultant agrees to
provide and TechAlt, Inc agrees to accept the Services described herein.
1. Definitions
"Products" mean all material, including but not limited to, software programs,
systems, specifications, documents, contracts and summaries thereof, developed
in connection with a Work Specification.
"Services" mean those computer programming and/or consulting services, which are
more fully described in Work Specifications issued hereunder, for the fees
described herein.
"Work Specifications" mean those documents substantially in the form attached
hereto as Exhibit A, with appropriate insertions, issued by TechAlt, and
accepted by Consultant in reference to this Agreement. Work Specifications are
incorporated into and made a part of this Agreement by reference.
2. Scope of Services
Particular Consultant personnel shall be identified in one or more Work
Specifications issued by TechAlt and accepted by Consultant, which are
incorporated into this Agreement by reference. No Services shall be provided by
virtue of this Agreement alone, but shall require the issuance and acceptance of
such Work Specifications. As appropriate, Work Specifications shall identify
without limitation, the Services to be performed, results to be achieved, the
cost, the start date, and the criteria for completion. In addition, all software
to be delivered hereunder shall be subject to file sizing analysis, workflow
analysis, and/or presentation of alternate hardware/software solutions.
3. Term
A. This Agreement shall be effective when signed by both parties and
thereafter shall remain in effect until terminated by either party as
provided herein.
B. Each Work Specification shall be effective when signed by both parties and
thereafter shall remain in effect until terminated as provided herein.
4. Personnel, Staffing and Direction
Consultant shall provide all necessary personnel, adjudged by Consultant and
acceptable to TechAlt as qualified to perform the Services defined in a Work
Specification. The daily activities of Consultant's personnel assigned to work
with TechAlt in accordance with the requirements set forth in a Work
Specification shall be directed by TechAlt or by Consultant's supervisor acting
at the direction of TechAlt.
5. Working Arrangement
A. The Services provided hereunder shall be performed at either the TechAlt's
or Consultant's premises, as mutually agreed by the parties.
B. TechAlt agrees to provide reasonable working space, computer related
resources, materials, (i.e. ribbons, paper, etc.), and any other services
and materials which may be necessary in connection with the performance of
Services described herein, including particularly a desk, a phone, and
other office and support services normally provided by TechAlt to
TechAlt's own employees of similar status. TechAlt shall not unreasonably
alter the working environment once established, nor substitute other
working arrangements unreasonably often regardless of relative quality.
6. Compensation
TechAlt shall pay Consultant for Services provided under each Work Specification
(i) at an hourly rate; (ii) at a flat rate per project, task, or Work
Specification; or (iii) at any other rate mutually agreed upon by TechAlt and
Consultant and set forth in the applicable Work Specification. In the event that
payment is based on an hourly rate, TechAlt shall pay Consultant for actual
hours spent engaged in providing the Services contemplated by a Work
Specification or actual hours spent engaged in providing support services
necessary for the successful performance of the Product(s) contemplated under a
Work Specification.
7. Travel and Other Expenses
A. TechAlt shall reimburse Consultant for all reasonable travel and other
expenses (over and above the normal daily expenses of working and
commuting) in connection with Services furnished under a Work
Specification.
B. All travel and other expenses must be authorized in writing by an
authorized representative of TechAlt prior to same being incurred.
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8. Taxes
TechAlt shall reimburse Consultant for any sales tax, use tax, or any similar
fee levied on Services provided hereunder by Consultant, provided said taxes or
fees are paid by Consultant and imposed by state or federal law.
9. Invoicing and Payment
Consultant shall invoice TechAlt for the Services furnished and for the approved
travel and other expenses incurred under a Work Specification during the
preceding month, week or other invoicing period described in the applicable Work
Specification. TechAlt shall pay invoices issued pursuant to this Agreement
within sixty (60) days after the receipt thereof.
10. Title and Possession
A. All Products developed by Consultant in connection with a Work
Specification, shall belong solely and exclusively to TechAlt. TechAlt
shall have the right to obtain and to hold in its own name, patents,
copyrights, and/or trade secret registrations, or such other protection as
may be appropriate to the subject matter and any extension or renewals
thereof. The Contractor agrees to give TechAlt and any other person
designated by TechAlt, all assistance reasonably required to perfect its
rights pursuant to this section. The Contractor shall not use, sell,
transfer, assign, plagiarize or otherwise disclose such work to any third
party.
B. Consultant acknowledges certain situations require TechAlt to have
possession of source code to certain application software, and Consultant
is agreeable to making said source code available in Escrow to the benefit
of TechAlt or such other arrangements as are negotiated between Consultant
and TechAlt, upon proper written agreement.
C. Consultant further agrees that all of the above referenced Escrow
materials, all documentation and any and/all reference material developed
hereunder, shall be considered the confidential information of TechAlt,
and the use of such material shall be governed by Section 11 hereof.
D. Nothing contained in this Section or in Section 11 shall impair or
restrict the right of Consultant to use or publicly disclose any material
or information (i) previously in its possession, (ii) acquired from any
third party which did not obtain such material legally from TechAlt, (iii)
developed by Consultant independently, or (iv) already in the lawful
possession of Consultant at the time of execution of this Agreement.
E. Consultant hereby grants TechAlt the right to use any Product(s) supplied
hereunder solely for use in TechAlt's own business operations.
11. Confidential Information
A. Each party acknowledges that all material and information marked as
"Confidential"," Secret" or containing such other reasonable marking
showing that the materials are to be protected, and which has or will come
into the possession or knowledge of each in connection with this Agreement
or the performance hereof, consists of confidential and proprietary data,
whose disclosure to or use by third parties will be damaging. Both
parties, therefore, agree to hold such material and information in
strictest confidence, not to make use thereof other than for the
performance of this Agreement, nor to release or disclose such information
or material to any persons who have not been officially notified in
writing that they are expressly binding themselves not to improperly use
or disclose said data.
B. TechAlt and Consultant further agree that this Agreement shall not
restrict the rights of Consultant, except as specifically acknowledged in
writing, to undertake similar work for other clients either concurrently
or in the future, provided that TechAlt's rights of proprietary
information as provided above are preserved.
12. Guarantees
A. Consultant warrants that all Services performed under a Work Specification
shall be performed to the best of its, and its personnel's, ability and in
a good workmanlike manner.
B. Consultant warrants that all Product(s) produced hereunder will be of
original development by Consultant. In the event that Consultant shall
elect to use or incorporate in the Product(s) to be produced, any
components of a system already existing, Consultant shall first notify
TechAlt who, after whatever investigation TechAlt may elect to make, may
direct Consultant not to so use or incorporate any such components. If
TechAlt shall not object, Consultant may use or incorporate such
components at Consultant's expense after obtaining the written consent of
the party owning the same, and furnishing a copy thereof to TechAlt; in
all events, such components shall be similarly warranted (except for
originality) by Consultant and Consultant will arrange to transfer title
or the perpetual license to use such components to TechAlt for purposes of
this Agreement, and shall indemnify TechAlt in the manner stated in
Section 14 hereof, with respect thereto.
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13. Product(s) Warranty
Consultant warrants that all Product(s) provided hereunder will conform to and
perform in accordance with the specifications stated in the applicable Work
Specifications. Consultant's obligation under this warranty is to correct and
adjust Product(s), which do not comply with this warranty at no additional cost
to TechAlt for a period of twelve (12) months from the completion of the Work
Specification pertaining thereto. After such twelve (12) month period,
corrections and modifications if any, shall be furnished on a time and materials
basis at Consultant's then current charges therefor, at the request of TechAlt.
THIS WARRANTY IS IN LIEU OF ALL OTHER WARRANTIES, EXPRESSED OR IMPLIED.
Consultant shall not be required to correct any Product(s), which has been
damaged or destroyed by any cause outside of the control of Consultant.
14. Patent, Copyright and Trade Secret Infringement
Consultant shall defend, at its own expense, any suit or proceedings brought
against TechAlt so far as it is based on a claim that any Product(s) supplied by
Consultant under this Agreement or any Work Specification infringes a United
States patent, copyright or trade secret; provided, however, that Consultant is
given reasonable notice after its commencement and is given full and complete
authority, information, and assistance (at Consultant's expense) for the defense
thereof (including appeals), and Consultant shall pay all costs and damages
finally awarded against TechAlt in any such action that are attributable to any
such claim, but shall not be responsible for any compromise or settlement made
without its consent. If any such infringement is held to exist, Consultant
shall, at its option and expense and in conformity with requirements in the
relevant Work Specification, either procure for TechAlt the right to continue
using the Products, modify same so that they become non-infringing, or replace
same with a non-infringing counterpart, or, if an injunction issues from which
no further appeal lies, and none of the above alternatives is reasonably
feasible, accept the return (at Consultant's expense) of the infringing
Product(s) and refund to TechAlt an amount equal to twice the depreciated or
amortized value of the Products, such value to be determined by using a straight
line method of depreciation or amortization based upon a five (5) year useful
life. Consultant, however, shall have no liability whatever to TechAlt if any
such infringement or claim thereof is based upon or arises out of (a) compliance
with designs, plans or specifications furnished solely by TechAlt, or the use of
the Product(s) in a manner for which the same were neither designed nor
contemplated.
15. Indemnification
Each party hereby agrees to indemnify the other against all loss(s), cost(s) and
expense(s), including reasonable counsel fees, which the other may incur by
reason of the breach of any term, provision, covenant, warranty or
representation contained herein and/or in connection with the enforcement of
this Agreement or any provision hereof.
F-4
16. Limitation of Liability
A. EXCEPT FOR PATENT, COPYRIGHT AND TRADE SECRET INFRINGEMENT, PERSONAL
INJURY AND/OR PROPERTY DAMAGE, EACH PARTY AGREES THAT ITS LIABILITY
HEREUNDER FOR DAMAGES OF ANY KIND, WHETHER DIRECT OR INDIRECT AND
REGARDLESS OF THE FORM OF ACTION OR THEORY OF LIABILITY SHALL NOT EXCEED
THE CHARGES ACTUALLY PAID HEREUNDER WITH RESPECT TO THE APPLICABLE WORK
SPECIFICATION. IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR LOSS OF
PROFITS OR ANY OTHER SUCH LOSS, OR ANY DIRECT OR INDIRECT, SPECIAL,
INCIDENTAL, OR CONSEQUENTIAL DAMAGES HOWEVER INCURRED OR DESIGNATED.
B. No action, regardless of form, arising out of the transactions
contemplated under this Agreement, may be brought by either party more
than one (1) year after the cause of action has accrued, except that an
action for non-payment may be brought within one (1) year after the date
of the last payment.
C. Notwithstanding the foregoing, each party shall be responsible for bodily
injury or damage to the other party's physical property resulting from
negligent or intentional acts or omissions of its employees, agents, or
representatives.
17. Excusable Delays
A. Neither party to this Agreement shall be held liable for failure to comply
with any of the terms of this Agreement when such failure has been caused
solely by fire, war, insurrection, government restrictions, force majeure,
(Acts of God) or other causes, beyond the control and not due to the fault
of either party involved, provided such party uses due diligence to remedy
such default.
B. It is understood and agreed that the Services provided by Consultant
hereunder will be based entirely upon TechAlt's direction and/or TechAlt
determined, and approved specifications, therefore, TechAlt understands
that changes, including but not limited to changes either in data
supplied, requirements, specifications, or objectives; will cause delays
and affect estimates, if any, of the amount of Services required and their
completion dates.
18. Termination
A. This Agreement may be terminated as follows:
(i) by either party, without cause, upon thirty (30) days prior written
notice to the other party;
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(ii) by either party, in the event that the other party fails to comply
with any material term or condition hereof and such failure is not
remedied within thirty (30) days, except as provided in this Agreement in
Section 17, after written notice thereof has been given to the other
party;
(iii) by either party, in the event that the other party becomes
insolvent, makes an assignment for the benefit of creditors, suffers or
permits the appointment of a receiver or trustee in bankruptcy or similar
officer for all or parts of its business or assets; or
(iv) by either party, in the event that the other party avails itself of
or becomes subject to any bankruptcy proceeding under Federal law or any
statute of any state relating to insolvency or the protection of rights of
creditors.
B. Each Work Specification may be terminated as follows:
(i) as provided in the applicable Work Specification;
(ii) by either party, upon thirty (30) days prior written notice to the
other party; or
(iii) automatically, upon completion of the Services and/or delivery of
the Product(s) specified in the applicable Work Specification.
C. Termination shall in no way relieve either party of duties or obligations
incurred prior to such termination.
D. Upon termination of this Agreement, each party shall immediately return to
the other, all papers, materials, programs, documentation, equipment and
other property of the other party held by each party for the purpose of
carrying out its obligations hereunder. Each party shall assist the other
party in the orderly termination of this Agreement as may be necessary for
the non-disrupted business continuation of each party.
19. Independent Contractor
It is herein agreed that at all times the relationship of the Consultant to
TechAlt shall be that of an independent contractor. Consultant further agrees,
during the term of this Agreement, to maintain at Consultant's expense, all
necessary insurance for its employees, including but not limited to, workman's
compensation, disability, and unemployment insurance, general liability
insurance and to provide TechAlt with certification of same upon request.
20. Product(s) Support
A. Consultant agrees to provide application software support for all
Product(s) as indicated in the applicable Work Specification. Items
normally included as software support include:
1. Reasonable Telephone Support
2. Training
3. Forms Design
4. Correction of programs where source code and equipment are provided
by TechAlt
5. Assistance to TechAlt staff in setting up office procedures as they
relate to the computer operations
6. Software and file fixes not dependent on source code availability
B. TechAlt agrees to keep a minimum of two (2) sets of back-up files. It is
recommended that four (4) back-up sets be kept with at least one (1) set
kept at an off-site location.
21. Advertising
It is herein agreed that TechAlt's name will not be used in any written
advertising or marketing promotion of Consultant except with TechAlt's prior
written consent.
22. Availability
Each party warrants to the other that it is free, as of the date it signs this
Agreement, of any contractual obligations that would prevent such party from
entering into this Agreement, and that Consultant's offer to provide Services in
no way caused or induced any party to this Agreement to breach any contractual
obligations.
23. Assignability
Each party herein agrees that this is a personal services Agreement between
TechAlt and Consultant and is not assignable by either party.
24. Section Headings
Section Headings have been included in this Agreement merely for convenience or
reference. They are not to be considered part of this Agreement, or to be used
in the interpretation hereof.
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25. Construction of Agreement
Any questions or matters arising under this Agreement as to the validity,
construction, or performance hereof, shall be determined in accordance with the
laws of the State of Illinois
26. Consent to Breach Not a Waiver
No terms or provisions hereof shall be deemed waived and no breach excused,
unless such waiver or consent shall be in writing and signed by the party
claimed to have waived or consented. Any consent by any party to, or waiver of,
a breach by the other, whether express or implied, shall not constitute a
consent to, waiver of, or excuse for any other different or subsequent breach.
27. Invalid Provision
Should any part of this Agreement, for any reason, be declared invalid, such
decision shall not affect the validity of any remaining portion. Such remaining
portion shall remain in force and effect as if this Agreement had been executed
with the invalid portion eliminated.
28. Survival of Terms
The terms, provisions, representations and warranties contained in this
Agreement that by their sense and context are intended to survive the
performance thereof by either or both parties hereunder, shall so survive the
completion of performance and termination of this Agreement, including the
making of any and all payments due hereunder.
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29. Acknowledgement
Each party acknowledges that it has read this Agreement, understands it, and
agrees to be bound by its terms. The parties further agrees that this Agreement,
along with any applicable Confidentiality/Non-Disclosure Agreements and any
executed Work Specification(s), are the complete and exclusive statements of the
Agreement between the parties, which supersedes all proposals, oral or written,
and all other communications between TechAlt and Consultant relating to the
subject matter of this Agreement.
In witness whereof the parties have caused this Agreement to be executed as of
the date first above written.
TECHALT, INC Consultant Arias Technology, Inc.
By__________________________ By__________________._____
Typed Name_Barbara Y. Roberts Typed Name: Ray Arias
Title: VP Business Development Title: President
Contact Phone: (847) -870-2602 Contact Phone: (847)- 749-0179
Master Agreement # 2004-100
EXHIBIT A
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WORK SPECIFICATION
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Date: October 11, 2004 Scope of Work # 100-010
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By reference hereto, Agreement # 2004-100 dated the eleventh day of October
2004, appends this Work Specification; TechAlt/ Arias Statement of Work #
100-010.