Subcontract Agreement - Plumtree Inc. and Perficient Inc.
PERFICIENT, INC. PROPRIETARY & CONFIDENTIAL
SUBCONTRACT AGREEMENT
This Subcontract Agreement is made as of November 4, 1999 ("Date") by
and between Plumtree, Inc. ("Company") with principal offices at 500 Sansome St,
San Fransisco, CA. 94111 and Perficient, Inc. ("Consultant") with principal
offices at 7600 - B North Capital of TX Hwy, Suite 220, Austin, TX 78735.
1. SCOPE OF SERVICES; PROJECT ASSIGNMENTS
1.1 Company may issue Project Assignments to Consultant in
the form attached to this Agreement as EXHIBIT A ("Project Assignment").
Subject to the terms of this Agreement, Consultant shall render the services
(the "Services") and provide the deliverables (the "Deliverables") as set
forth in the Project Assignment(s) accepted in writing by Consultant by the
completion dates set forth therein.
1.2 Each Project Assignment shall provide the specific
Services authorized by Company, the schedule or term, the applicable rates
and charges therefor, and other appropriate terms and conditions.
1.3 Each Project Assignment shall provide acceptance
criteria for the Services and Deliverables described in such Project
Assignment ("Acceptance Criteria"). Upon completion of such Services and
Deliverables, Consultant shall notify Company of such completion ("Notice").
For the Services and Deliverables described in each such Project Assignment,
Company shall have five (5) business days (the "Acceptance Period") from
receipt of Notice to determine whether the completed Services and
Deliverables conform to the applicable Acceptance Criteria. Upon expiration
of the Acceptance Period, the completed Services and Deliverables shall be
deemed accepted by Company unless Consultant has received from Company prior
to the expiration of the Acceptance Period a written statement detailing any
nonconformance ("Notice of Nonconformance"). If Consultant receives a Notice
of Nonconformance during the Acceptance Period, Consultant shall re-perform
such Services and provide substitute Deliverables, at no cost to Company for
Consultant's time expended. The Acceptance Period and procedure of this
Section shall repeat itself with respect to such re-performed services and
substitute Deliverables until accepted or deemed accepted by Company
("Acceptance").
2. PAYMENT
2.1 Training Period: Each individual with no prior
experience with Company's products shall be considered a trainee for a period
of 4 weeks during which the following applies:
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a. Company shall provide a one week training class
at no charge to each individual hired by Consultant on their behalf.
b. During the one (1) week training class for a new
individual, Consultant shall not invoice Company for either hours or out of
pocket expenses.
c. In the period of 3 weeks following the
completion of the training class, Consultant will bill Company for an
individual's time at 50% of the individual's standard rate assuming 100
utilization on an internal or external assignment. Utilization will be
computed based on an eight (8) hour day x the number of business days in a
billing period. Company shall pay all out of pockets expenses incurred as a
result of such assignments (e.g. travel, per-diems) during said period.
2.2 Company shall pay Consultant the fees identified in the
applicable Project Assignment for time incurred by Consultant in performance
of its obligations, as adjusted to reflect any changes in the scope of work
that Company authorizes in writing, and to which Consultant agrees in
writing. Company shall also reimburse Consultant for any actual, reasonable
travel and out-of-pocket expenses incurred in performing Services. The fees
do not include taxes, shipping or insurance. If Consultant is required to pay
any federal, state or local taxes based on the Services or Deliverables, such
taxes will be billed to and paid by Company. Consultant shall be responsible
for taxes based on Consultant's net income.
2.3 Unless invoicing is tied to deliverable milestones
specified under a given Project Assignment, Consultant will invoice Company
monthly for work done by Consultant during the preceding month. All invoices
are due and payable thirty (30) days after the invoice date. Invoices not
paid within such period shall accrue interest at the rate of 1.5% per month
or the maximum rate allowed by law, whichever is less.
3. CONFIDENTIALITY
3.1 Except for purposes permitted under this Agreement,
each party hereby agrees to not disclose or use any materials or information
received by it hereunder which are marked as confidential or proprietary, or
if disclosed verbally, reduced to writing and marked confidential within
thirty (30) days after the date of disclosure ("Confidential Information").
Each party agrees to take precautions to prevent any unauthorized disclosure
or use of the other party's Confidential Information consistent with
precautions used to protect such party's own confidential information, but in
no event less than reasonable care. The obligations of the parties hereunder
shall not apply to any materials or information which a party can
demonstrate, through documented evidence (a) is now, or hereafter becomes,
through no act or failure to act on the part of the receiving party,
generally known or available; (b) is known by the receiving party at the time
of receiving such information as evidenced by its records; (c) is hereafter
furnished to the receiving party by a third party, as a matter of right and
without restriction on disclosure; (d) is independently developed by the
receiving party without
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use of any Confidential Information; or (e) is the subject of a written
permission to disclose provided by the disclosing party. Notwithstanding any
other provision of this Agreement, disclosure of Confidential Information
shall not be precluded if such disclosure:
a. is in response to a valid order of a court or
other governmental body of the United States or any political subdivision
thereof; provided, however, that the responding party shall first have given
notice to the other party hereto in order that such other party may obtain a
protective order requiring that the Confidential Information so disclosed be
used only for which the order was issued and the responding party uses
reasonable efforts to have such information be treated as confidential and
under seal;
b. is otherwise required by law; or
c. is otherwise necessary to establish rights or
enforce obligations under this Agreement, but only to the extent that any
such disclosure is necessary.
3.2 Notwithstanding anything to the contrary herein,
Consultant's use or dissemination of information of general application which
may be retained in the memory of employees of Consultant, including formulae,
patterns, compilations, programs, devices, methods, techniques or processes,
shall not be considered a breach of Consultant's confidentiality obligations.
3.3 In the event of any breach of this Section, the parties
agree that the non-breaching party will suffer irreparable harm for which
money damages would be an inadequate remedy. Accordingly, the non-breaching
party shall be entitled to seek injunctive relief, in addition to any other
available remedies at law or in equity.
4. INTELLECTUAL PROPERTY
4.1 All right, title and interest to any copyrights,
patents or other intellectual property rights embodied in Deliverables or
other works developed by Consultant in the course of providing the Services,
including but not limited to, any new or useful art, discovery, improvement,
technical development, or invention, whether or not patentable, and all
related know-how, designs, mask works, trademarks, formulae, processes,
manufacturing techniques, trade secrets, ideas, artworks, software or other
copyrightable or patentable work (collectively, "Rights"), are the sole and
exclusive property of Company and/or its licensors. Consultant is hereby
granted a non-exclusive, worldwide license under the Rights to use, reproduce
and create derivative works of the Deliverables on engagements entered into
on behalf of Company.
4.2 Consultant has the necessary right, title, and interest
to produce the Deliverables and provide the Services to Company, and
Deliverables will be free of liens
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and encumbrances, and do not infringe any third party intellectual property
rights. Consultant shall indemnify and hold Company harmless from any claims
that Deliverables infringe any third party intellectual property rights.
Consultant's indemnity obligations under this Section shall not exceed the
amount payable by Company to Consultant under the Project Assignment related
to such alleged infringement, provided, however, that if such infringement is
caused by the deliberate or willful misconduct of Consultant, the amount of
such indemnity shall be limited to Company's actual damages (including
reasonable attorney fees).
4.3 Except as prohibited pursuant to Article 3
("Confidentiality"), Consultant may in its sole discretion develop, use,
market and license any products or services that are similar or related to
those developed or performed by Consultant for Company. Consultant shall not
be required to disclose to Company information concerning any developments
that Consultant considers confidential.
5. SOFTWARE LICENSE
5.1 Company will provide Consultant with copies of any
Company's software programs and/or other software code and related
documentation which Consultant requires access to in order to perform
Services or provide Deliverables pursuant to a Project Assignment
(collectively, the "Software"). Company grants Consultant a royalty-free,
revocable, and nonexclusive license to possess, install and use the Software
for such limited purposes and for internal use.
6. RECORDS AND REPORTING
6.1 Consultant shall maintain complete and accurate records
of the work performed hereunder, the amounts invoiced and hours worked. Such
records shall be in accordance with standard accounting practices and shall
include, but not be limited to, time sheets and receipts for reimbursable
expenses.
6.2 Company shall have the right to inspect and audit
Consultant's records at Consultant's place of business during normal business
hours at any time during the term of this Agreement and for a period of one
(1) year thereafter, upon giving Consultant thirty (30) days prior written
notice. Any information received or acquired by Company during such audit
shall be deemed Confidential Information of Consultant and subject to the use
and disclosure restrictions set forth herein.
7. LIMITED WARRANTY; DISCLAIMER
Consultant warrants the Services and Deliverables and will
conform to the Acceptance Criteria and generally accepted industry standards
and practices for similar deliverables or services. If Consultant fails to
perform the Services or provide the Deliverables as warranted, and Company
reports such failure to Consultant in writing
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during the thirty (30) day period after Acceptance, Consultant will, without
charge for its time expended, re-perform the Services and provide substitute
Deliverables as necessary. At Consultant's option and in its sole discretion,
Consultant may elect not to re-perform the Services or provide Substitute
Deliverables and instead, refund certain amounts paid by Company and
terminate this Agreement or the applicable Project Assignment. The above is
Company's sole and exclusive remedy for breach of warranty by Consultant with
regard to the provision of Services and Deliverables. EXCEPT FOR THE WARRANTY
PROVIDED IN THIS ARTICLE 7 ("LIMITED WARRANTY; DISCLAIMER"), CONSULTANT MAKES
NO WARRANTY OF ANY KIND, EXPRESS, IMPLIED OR STATUTORY (INCLUDING, WITHOUT
LIMITATION, ANY WARRANTY OF NONINFRINGEMENT, MERCHANTABILITY, OR FITNESS FOR
A PARTICULAR PURPOSE) REGARDING THE SERVICES OR ANY DELIVERABLE.
8. TERM AND TERMINATION
This Agreement is effective as of the Effective Date and
will continue in perpetuity unless terminated as set forth below. Either
party may terminate this Agreement, with or without cause, at any time upon
ninety (90) days prior written notice to the other party. However, no such
termination will be effective until any outstanding Project Assignments have
been completed. The rights and obligations contained in Articles 2
("Payment"), 3 ("Confidentiality") 4 ("Intellectual Property"), 7 ("Limited
Warranty;Disclaimer"), 8 ("Term and Termination"). 10 ("Limitation of
Liability") and [11 or 12] ("General Terms and Conditions") shall survive any
termination or expiration of this Agreement.
9. INDEPENDENT CONTRACTOR
Consultant agrees that it is an independent contractor and
that it will perform under this Agreement as an independent contractor.
Nothing in this Agreement shall be deemed to make Consultant an agent,
employee or partner of Company. Consultant shall not be entitled to any of
the fringe benefits of Company and shall have no authority to bind, commit,
contract for or otherwise obligate Company in any manner whatsoever.
Furthermore, Consultant shall withhold and pay Social Security, income taxes,
and other employment taxes for itself and its employees.
10. LIMITATION OF LIABILITY
Notwithstanding any other provisions of this Agreement,
Consultant's liability to Company under any particular Project Assignment is
limited to the amounts paid to Consultant under such Project Assignment.
Furthermore, neither party will be liable to the other party or any third
party for any loss of use, interruption of business or any special,
incidental, exemplary or consequential damages of any kind (including lost
profits), regardless of the form of action, whether in contract, tort
(including negligence), strict product liability or otherwise, even if
Consultant has been advised of the possibility of such damages. The foregoing
provisions limiting damages and excluding
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consequential damages are independent of any exclusive remedies for breach of
warranty set forth herein.
11. INSURANCE
11.1 Consultant agrees to carry Workers Compensation
Insurance.
11.2 Consultant agrees to carry Commercial General
Liability insurance covering all operations of the Consultant with a combined
single limit of $1,000,0000.
11.3 Consultant agrees to carry Automobile Liability
Insurance covering bodily injury and property damage liability arising out of
the use by or on behalf of the Consultant with combined limits not less than
$500,000.
11.4 Consultant agrees to carry Errors and Omissions
Insurance covering loss or damage arising out of negligent acts or errors or
omissions which arise from professional services provided by Consultant under
this Agreement with limits no less than $500,000 per occurrence.
11.5 Upon request Consultant will provide evidence of the
coverage listed above in the form of certificates of insurance or copies of
insurance policies.
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12. GENERAL TERMS AND CONDITIONS
12.1 During the term of this agreement and for a period of
one (1) year thereafter both parties mutually agree not to solicit or hire
any employee of either company, or any person who has within the prior six
(6) months been an employee of either company without the express written
permission of both parties.
12.2 In the event that any dispute arises between the
parties hereto with regard to any of the provisions of this Agreement or the
performance of any of the terms and conditions hereof, the prevailing party
in any such dispute shall be entitled to recover costs and expenses
associated with resolving such dispute, including but not limited to
reasonable attorneys' fees expert witness fees and costs and fees on appeal.
12.3 This Agreement is governed in all respects by the laws
of the United States of America and the State of Texas as such laws are
applied to agreements entered into and to be performed entirely within Texas
between Texas residents, without regard to its conflict or choice of law
principles.
12.4 All notices or reports permitted or required under
this Agreement shall be in writing and shall be by personal delivery,
telegram, telex, telecopier, facsimile transmission, or by certified or
registered mail, return receipt requested, and deemed received upon personal
delivery, five (5) days after deposit in the mail, or upon acknowledgment of
receipt of electronic transmission. Notices shall be sent to the addresses
set forth on the signature page or such other address as either party may
specify in writing. Notices shall be sent to the applicable designated person
identified in the applicable Project Assignment.
12.5 If any provision of this Agreement is unenforceable or
invalid under any applicable law or be so held by applicable court decision,
such unenforceability or invalidity shall not render this Agreement
unenforceable or invalid as a whole. In such event, such provision shall be
changed and interpreted so as to best accomplish the objectives of such
unenforceable or invalid provision within the limits of applicable law or
court decisions.
12.6 The failure of either party to require performance by
the other party of any provision hereof shall not affect the full right to
require such performance at any time thereafter; nor shall the waiver by
either party of a breach of any provision hereof be taken or held to be a
waiver of the provision itself
12.7 Company acknowledges that the laws and regulations of
the United States may restrict the export and re-export of commodities and
technical data of United States origin, including the Deliverables. Company
agrees that it will not export or re-export the Deliverables in any form,
without the appropriate United States and foreign governmental licenses.
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12.8 Neither party shall be liable hereunder by reason of
any failure or delay in the performance of its obligations hereunder (except
for the payment of money) on account of strikes, shortages, riots,
insurrection, fires, flood, storm, explosions, acts of God, war, governmental
action, labor conditions, earthquakes, material shortages, or any other cause
beyond the reasonable control of such party.
12.9 Neither party may assign, voluntarily, by operation of
law or otherwise, any rights or delegate any duties under this Agreement
without the other party's prior written consent, except in the case of a
merger, acquisition, reorganization, consolidation, reincorporation or sale
of all or substantially all of the assets of the party. Any attempt to do so
without that consent will be void. This Agreement will bind and inure to the
benefit of the parties and their respective successors and permitted assigns.
12.10 This Agreement (including any fully executed Project
Assignments) completely and exclusively states the agreement of the parties
regarding its subject matter. It supersedes, and its terms govern, all prior
or contemporaneous proposals, agreements, or other communications between the
parties, oral or written, regarding such subject matter. This Agreement shall
not be modified except by a subsequently dated written amendment or
supplemental Project Assignment signed on behalf of Consultant and Company by
their duly authorized representatives, and any provision on a Project
Assignment purporting to supplement or vary the provisions hereof shall be
void.
IN WITNESS WHEREOF, the parties have executed this Project
Assignment as of the date last written below.
"Consultant" "Company"
Perficient, Inc Plumtree Software
By: By:
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Name: Andrew J. Roehr Name:
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Title: Chief Technology Officer Title:
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