Consulting Services Agreement - ARIS Corp. and ATMI
[ARIS CONSULTING LOGO]
CONSULTING SERVICES AGREEMENT
This Agreement is entered into as of October 6, 1999 (the "Effective Date"),
between ARIS Corporation, a Washington corporation ("ARIS"), and ATMI, a
corporation ("Customer").
The parties agree as follows:
1. SERVICES. ARIS agrees to perform the services (the "Services") described
on Work Order(s) which are executed from time to time by authorized
representatives of both parties and which reference this Agreement.
2. CHARGES; INVOICING AND PAYMENT. As consideration for ARIS' Services,
Customer agrees to pay ARIS the amounts set forth on the Work Order.
Invoices will be issued semi-monthly by ARIS. Payment is due within 30 days
after Customer's receipt of the invoice. A delayed payment charge of one and
one-half percent (1.5%) of the invoice amount will be paid by Customer for each
30-day period (or part thereof) of delay in payment beyond the payment due date.
3. TERM AND TERMINATION. This Agreement will commence on the Effective Date
specified above. This Agreement and the obligations of the parties hereunder
may terminate early upon the occurrence of any of the following events: (i)
completion of the Services by ARIS as specified in any applicable Work Order;
(ii) the institution of voluntary or involuntary proceedings by or against any
party in bankruptcy or under any insolvency law, or for corporate
reorganization, the appointment of a receiver or petition for the dissolution
of any party or an assignment by a party for the benefit of creditors; or (iii)
upon fourteen (14) days' written notice given by either party for any reason or
no reason. ARIS shall be paid any amounts owing for Services performed and
expenses incurred through the termination date. Customer shall also reimburse
ARIS for the costs of all non-cancelable committed Services, expenses and
materials on order (which shall become Customer's property) resulting from such
termination or suspension of Services.
4. RECORDS AND PROGRESS REPORTS. ARIS shall keep full and accurate records of
all of its labor hours and reimbursable expenses incurred in connection with
this Agreement. ARIS shall provide access to such records upon Customer's
reasonable request.
5. OWNERSHIP AND USE OF INTELLECTUAL PROPERTY. During the term of this
Agreement, as a result of ARIS' efforts under this Agreement, ARIS may generate
ideas, inventions, suggestions, copyrightable materials or other information
("Intellectual Property") which fall into one of two categories:
a. Intellectual Property specifically related to the subject matter of ARIS'
efforts under this Agreement, and directly related to, or incorporated
into, the work product to be produced by ARIS and delivered to Customer
under this Agreement. Title to Intellectual Property described in this
paragraph 5a, that is developed solely by ARIS, or jointly by ARIS and
Customer, shall remain in Customer at all times. ARIS agrees to disclose
and assign to Customer, in a form satisfactory to Customer, all such
Intellectual Property, whether made alone or in conjunction with others,
and to render such assistance as Customer may reasonably require to
perfect such assignments and to protect such Intellectual Property; and
b. Intellectual Property of general applicability, whether or not related to,
or incorporated into, the work product to be produced by ARIS and
delivered to Customer under this Agreement. Title to Intellectual Property
described in this paragraph 5b, including any Intellectual Property
developed by ARIS prior to or outside of this Agreement, shall remain in
ARIS. To the extent such Intellectual Property is incorporated into work
product to be produced by ARIS and delivered to Customer under this
Agreement, ARIS grants and Customer hereby accepts, a perpetual,
worldwide, royalty-free, non-exclusive license to use all such
Intellectual Property as incorporated into the ARIS work product.
6. CONFIDENTIALITY OBLIGATIONS. All information and material that may be
disclosed by one party to the other in the course of this Agreement is
considered confidential and proprietary and will not be used by the receiving
party other than for the purposes under this Agreement for which it was
disclosed. The receiving party will protect such information from disclosure to
third parties and hold it as confidential using the same degree of care as that
party uses to protect its own confidential or proprietary material of like
importance, but at least reasonable care. This obligation will continue for a
period of two (2) years following receipt of the material and will survive any
termination of this Agreement, but it will not cover any information which is
disclosed to a third party by the disclosing party without restrictions on
disclosure, any information that has been or is developed independently by the
receiving party without violation of obligations of confidentiality, any
information that falls into the public domain without fault of the receiving
party, any information that is rightly obtained by the receiving party from a
third party without restriction, or any information that is rightly in the
possession of the receiving party at the time of disclosure by the disclosing
party.
7. STATUS OF ARIS AS INDEPENDENT CONTRACTOR. ARIS shall devote such time and
effort to the performance of the Services as may be necessary to satisfactorily
complete the work. ARIS shall not subcontract any portion of the work to be
performed without the prior written consent of the Customer, which consent
shall not be unreasonably withheld. ARIS shall be an independent contractor in
the performance of this Agreement and shall not be deemed an employee or agent
of Customer for any purpose whatsoever. Neither party shall have power to act
as an agent of the other or bind the other in any respect. ARIS' performance
shall be in compliance with all applicable statutes or regulations of any
jurisdiction or governmental agency.
8. WORKPLACE. If ARIS is requested by Customer to provide Services on
Customer premises, Customer agrees to provide ARIS personnel a safe workplace
whose standards are consistent with that of its own employees. Customer also
agrees to provide reasonable access to its personnel necessary for ARIS to
perform the Services. ARIS personnel will observe all safety and other
applicable rules in effect at such workplace, provided that notice of the rules
has been supplied to ARIS and such personnel.
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9. INSURANCE. At all time during the term of this Agreement, ARIS shall
maintain insurance coverage rated A "Excellent" by A.M. Best for the following
risks in the following minimum amounts.
Comprehensive General Liability Insurance: $2 million aggregate; $1 million
per occurrence, including $1 million personal injury.
Errors and Omissions Liability: $5 million per occurrence.
Business Auto: $1 million combined single limited bodily injury and
property damage liability.
Umbrella: $4 million aggregate, $4 million per occurrence.
Workers' Compensation: as required by statute.
Upon the written request of Customer, ARIS shall name the Company as an
additional insured under such policies, and shall provide the Company with a
certificate evidencing the above insurance coverage.
10. NON-SOLICITATION. Customer shall not solicit employment from any of ARIS'
employees whose work relates to this Agreement, during the term of this
Agreement and for a period of six (6) months after termination of this
Agreement, without ARIS' prior written consent.
11. WARRANTY; LIMITATION OF LIABILITY. ARIS represents and warrants that the
Services provided hereunder will be performed in a manner consistent with the
standards and the general customs and practices of the computer services
industry. Although ARIS warrants that its Services are year 2000 compliant, ARIS
makes no representation or warranty that any services, software or products of
third parties, including Customer legacy systems and/or data, are or will be
year 2000 compliant. Customer must report any deficiencies in the Services
within thirty (30) days of the later of the completion of the Services or the
date that such deficiencies were reasonably discoverable by Customer, in no
event, however exceeding 180 days from the date of completion of such Services.
Customer's sole remedy for the breach of any warranty by ARIS under this
Agreement shall be the re-performance of the Services. If ARIS is unable to
re-perform the Services as warranted, Customer shall be entitled to recover the
fees paid to ARIS for the deficient Services.
THE EXPRESS WARRANTIES CONTAINED IN THIS AGREEMENT ARE ARIS' EXCLUSIVE
WARRANTIES. ARIS DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING THE IMPLIED
WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, AND ANY
WARRANTY OF NON-INFRINGEMENT WITH RESPECT TO INTELLECTUAL PROPERTY. ARIS WILL
NOT BE LIABLE IN ANY EVENT, IN CONTRACT OR TORT, FOR ANY CONSEQUENTIAL SPECIAL
INCIDENTAL, OR INDIRECT DAMAGES ARISING OUT OF OR IN CONNECTION WITH THIS
AGREEMENT. IN ANY EVENT, ARIS' MAXIMUM LIABILITY UNDER THIS AGREEMENT SHALL BE
LIMITED TO 1.5 TIMES THE AMOUNT PAID BY CUSTOMER UNDER THIS AGREEMENT.
12. MISCELLANEOUS. This Agreement is governed by the laws of the State of
Washington. Any legal action must be filed within two (2) years after the cause
for such action arises. The parties agree that jurisdiction over and venue in
any legal proceeding arising out of or relating to this Agreement shall be the
Superior Courts of King County, Washington. The prevailing party to any action
shall be entitled to its reasonable costs and attorneys' fees from the other
party.
Unless otherwise specifically provided in this Agreement, the terms of this
Agreement shall prevail over any conflicting provision of any applicable Work
Order.
Notices will be effective when received in writing at the addresses set forth
below.
Customer or ARIS may not assign its rights under this Agreement without the
prior written consent of either party.
Neither party shall issue any press release or other public disclosure
concerning this Agreement without prior written consent of the other party,
which shall not be unreasonably withheld. However, either party may disclose
the existence of this Agreement or its contents as may be required to comply
with applicable laws or regulations. Notwithstanding the above, Customer hereby
consents to the use of Customer's name only in any listings of representative
clients.
This Agreement constitutes the entire agreement of the parties, supersedes any
prior understandings relating to the subject matter hereof, and may be amended
or supplemented only in a written agreement signed by ARIS and Customer. All
preprinted clauses on any order form by Customer are deemed deleted. The
parties agree that Agreements with one or more faxed signatures shall have the
same force and effect as an originally executed Agreement.
ARIS CORPORATION
By: [Signature Illegible]
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Title: Vice President
Address: 2229-112th Avenue NE
Bellevue, WA 98004-2936
Phone: (425) 372-2747
Fax: (425) 372-2798
CUSTOMER: ATMI
By: /s/ BILL HARVEY
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Title: Director of Administration
Address: 7 Commerce Drive
Danbury, CT 06810-4169
Phone: 203.794.1100 x 174
Fax: 203.792.8040