Agreement for Temporary Services in Support of Information Technology Solutions - AT&T Broadband Corp. and ARIS Corp.
AGREEMENT FOR TEMPORARY SERVICES
IN SUPPORT OF INFORMATION TECHNOLOGY SOLUTIONS
This is an agreement ("Agreement"), effective when signed by both parties,
between AT&T BROADBAND and ARIS CORPORATION, 2229 NE 112TH AVENUE, BELLEVUE, WA
98006 (hereinafter called "Consulting Firm") for services provided by technical
employees listed in Attachment "A" (hereinafter called "Consultants" or,
individually, a "Consultant") as set forth herein.
1. TERM
This Agreement shall take effect on MAY 22, 2000 and remain in effect until
DECEMBER 31, 2000 or until terminated as specified herein. During this period,
Consultants will perform work as specified by AT&T Broadband and will maintain
an hourly time record in a daily time keeping log. The log shall be available
for review by AT&T Broadband upon request. Failure to provide proof of adequate
time keeping or falsification of time keeping records shall be grounds for
withholding payment of questioned amounts to Consulting Firm pending resolution
of such matters and/or termination of this Agreement for non-performance.
Adequate time keeping shall be defined as the capability to document hours
worked toward specified initiatives on any date during the term of this
Agreement.
2. SCOPE OF WORK
Consultants will provide AT&T Broadband with consulting and related professional
services for any and all projects specified by AT&T Broadband during the term of
this Agreement. Consultants shall perform such work at various AT&T Broadband
facilities, whether or not owned or leased by AT&T Broadband and/or any
affiliates thereof. Upon written request of Consulting Firm, AT&T Broadband will
provide Consultants with a prioritized objective set, which may be amended
and/or modified from time to time, at the sole discretion of AT&T Broadband,
identifying project management and delineating project deadlines, milestones,
and commitments for the term of this Agreement. Modifications or enhancements in
the objective set do not constitute an amendment to or nullification of this
agreement. Consultants shall provide written or oral progress reports as
requested by AT&T Broadband.
3. PROPERTY RIGHTS
All inventions, discoveries, trade secrets, designs and improvements thereto
(whether any of the foregoing are patentable or not), including but not limited
to, computer programs, systems designs, work notes, program plans,
specifications, project analysis, programming code and related documentation or
any work of authorship conceived, created or made by Consultants or Consulting
Firm, alone or with others, arising out of the performance of services
hereunder ("Work Product") are the sole and exclusive property of AT&T
Broadband, and, upon payment by AT&T Broadband to Consulting Firm, Consulting
Firm hereby assigns all rights, title and interest in and to such Work Product
to AT&T Broadband. Consulting Firm agrees, and agrees to cause Consultants, to
execute for the benefit of AT&T Broadband, without additional compensation (but
at AT&T Broadband's expense), all patent applications, assignment instruments,
affidavits and other documents which may be determined by counsel to AT&T
Broadband to be necessary or desirable in order to (a) vest in AT&T Broadband
all rights to Work Product owned by AT&T Broadband pursuant to the terms of
this Agreement, and (b) enable AT&T Broadband to obtain patent coverage thereon
in any countries.
4. NON-DISCLOSURE OF CONTRACT TERMS
Consulting Firm understands that the terms and conditions of this Agreement are
AT&T Broadband proprietary information and agrees not to disclose such
information to any individual or company unless expressly required to do so by
a valid order of a court or other governmental body of the United States or any
political subdivision thereof, provided that Consulting Firm has given AT&T
Broadband prompt prior notice of such order and has afforded AT&T Broadband
adequate opportunity to obtain a protective order or other appropriate
protection. Consulting Firm further understands that violation of this
provision will constitute a material breach of this Agreement and will result
in termination of this Agreement.
5. STAFFING
Consulting Firm agrees that AT&T Broadband shall have the right to retain the
services of any or all of Consulting Firm's employees named in this Agreement
for the duration of this Agreement. Consulting Firm agrees that AT&T Broadband
may, at its sole discretion, relinquish the services of any or all of
Consulting Firm's employees, without further obligation to Consulting Firm. In
the event that AT&T Broadband relinquishes the services of one or more of
Consulting Firm's employees, AT&T Broadband may elect, but shall not be
obligated, to accept alternate personnel from Consulting Firm to fulfill
outstanding requirements. Consulting Firm shall have the right to withdraw the
services of individual Consultants and establish a new end date for Consultants
named in this agreement upon 45 days written notice to AT&T Broadband given
prior to the revised end date.
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Consulting Firm also agrees that any of Consulting Firm's employees who are
contracted to work 30 hours or more per week for AT&T Broadband, shall not
concurrently work for any AT&T Broadband competitor. AT&T Broadband will notify
Consulting Firm of companies who are considered competitors. Consulting Firm
further agrees that it will not solicit AT&T Broadband employees, or employees
of another entity performing services at AT&T Broadband, for employment
placements or consulting positions outside AT&T Broadband. In addition to other
legal remedies available, violation of the above conditions will result in
representatives of the Consulting Firm being prohibited from entering AT&
Broadband facilities. AT&T Broadband further agrees not to directly or
indirectly solicit employees of the Consulting Firm.
6. FEES & PAYMENTS
Consulting Firm will be paid for total hours worked by each individual, based
upon the Consultant rate schedule contained in Attachment "A" and associated
Consulting Work Orders. The basis of calculating the monthly payment will be
the hours as recorded in the daily time keeping log. Weekly time keeping will
commence at the start of working hours on Monday. Consulting Firm shall invoice
AT&T Broadband at monthly intervals, ON A CALENDAR MONTH BASIS, for all labor
cost and pre-approved expenses occurred for such time period. Consulting Firm
understands that failure of a Consultant to complete the performance term
specified in Attachment "A" will result in severe damages to AT&T Broadband,
which actual damages would be difficult to ascertain. Accordingly, in the event
of failure of any Consultant to complete the performance term specified in
Attachment "A", AT&T Broadband will be entitled to liquidated damages equal to
the last 100 hours billed by Consulting Firm to AT&T Broadband for said
Consultant's labor. Consulting Firm and AT&T Broadband agree that this amount
is reasonable in light of the anticipated harm to AT&T Broadband, and does not
constitute a penalty. Notwithstanding the foregoing, AT&T Broadband will not
invoke the aforementioned release of payment obligation for Consultants who
have left the employment of Consulting Firm.
7. INDEPENDENT CONTRACTOR
Consulting Firm enters into this agreement as an independent contractor and for
no purpose shall Consultants be deemed employees or agents of AT&T Broadband.
Consultants will not represent themselves as employees of AT&T Broadband nor
make contractual obligations between AT&T Broadband and any third party. AT&T
Broadband will not treat Consultants as an employee for purposes of federal or
state income tax withholding, FICA withholding, or any other taxation purpose or
law, including the Internal Revenue Code of 1986, as amended. No partnership,
employment or agency has been or is intended to be formed by this Agreement.
Accordingly, Consulting Firm understands that AT&T Broadband is not required to
provide Consultant's with Worker's Compensation, and Consulting Firm
acknowledges and understands that Consulting Firm is solely responsible for
employer withholding of Consultant's federal and state income tax, social
security, unemployment, and disability taxes, if any. AT&T Broadband is
primarily interested in the results to be achieved by the Consultant, and the
Consultant shall have the sole discretion to determine the methods used to
complete the tasks assigned under this Agreement.
8. TERMINATION
A) TERMINATION FOR CONVENIENCE:
AT&T Broadband may, at its discretion, terminate the work under this
Agreement at any time by providing 14 days' written notice to the
Consulting Firm, such notice specifying the effective termination date. In
the event AT&T Broadband terminates the work or this agreement for its
convenience, subject to any liquidated damages due hereunder, AT&T
Broadband will pay Consulting Firm for the work performed up to the
effective date of termination. In no event shall AT&T Broadband be
obligated to pay for any services provided or expenses incurred beyond the
effective date of termination.
B) TERMINATION FOR CONSULTANT'S NON-PERFORMANCE
If any Consultant fails to perform as provided herein, AT&T Broadband may
provide written notification to Consulting Firm of its intent to terminate
the Agreement for such Consultant's non-performance, which notice shall
specify Consultant's non-performance. If Consulting Firm fails to cure such
default to AT&T Broadband's reasonable satisfaction within ten business
days from notification, AT&T Broadband may, but shall not be obligated to,
immediately terminate this Agreement upon notice to Consulting Firm. In the
event AT&T Broadband terminates this Agreement for any Consultant's
non-performance, AT&T Broadband, subject to any liquidated damages due
hereunder, will pay Consulting Firm for work performed up to the date of
written notification of intent to terminate.
C) INCIDENTAL EXPENSES INCURRED BY CONSULTANTS
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In the event of termination for any reason, AT&T Broadband's obligation
shall be limited to payment of costs incurred by Consultants prior to the
effective date of termination, providing such costs were previously
approved, in writing, by AT&T Broadband project management.
9. REPRESENTATIONS AND WARRANTIES OF CONSULTING FIRM
Consulting Firm represents and warrants as follows: (a) to the best of
Consulting Firm's knowledge (after suitable investigation) Consultants have the
ability, knowledge, and expertise to adequately perform the services contracted
hereunder and Consultants will perform the services in a professional manner
and in accordance with the highest industry standards; (b) all Work Product
delivered to AT&T Broadband under this Agreement shall be free from any claim
of alleged or actual libel, slander, defamation, infringement of copyright or
other intellectual property right, piracy, plagiarism or invasion of the right
of privacy or publicity except to the extent that such Work Product is created
under the direction of or to the specifications of AT&T Broadband; (c) all
services performed by Consulting Firm and Consultants in connection with this
Agreement shall be performed in compliance with all applicable federal, state
and local laws, rules and regulations; and (d) all Consultants are employees of
Consulting Firm and Consulting Firm shall provide Consultants with workers'
compensation benefits, unemployment insurance, tax withholding, FICA, or other
contributions and benefits on behalf of or for the benefit of Consultants in
compliance with all applicable federal, state and local laws, rules and
regulations.
10. NON-ASSIGNABILITY
Consulting Firm may not assign its rights or delegate its obligations under
this Agreement to any third party without prior written consent of AT&T
Broadband.
11. CONFIDENTIALITY
Before any Consultant begins to perform services under this Agreement,
Consulting Firm shall require all Consultants to execute a Non-Disclosure and
Ownership of Rights Agreement ("Non-Disclosure Agreement") in a similar form as
attached hereto as Attachment "B".
12. SEVERABILITY
Should any part of this Agreement for any reason be declared invalid or void,
such decision shall not affect the remaining portion which will remain in full
force and effect as if this Agreement had been executed with the invalid
portion eliminated.
13. GOVERNING LAW
This Agreement shall be governed by the internal laws of the State of Colorado
both as to interpretation and performance.
14. CAPTIONS AND HEADINGS; COUNTERPARTS
All captions, headings, and titles contained in this Agreement are for
convenience and reference purposes only and shall not be deemed a part of this
Agreement. This Agreement may be executed and delivered in counterparts, all of
which taken together shall constitute a single instrument.
15. ENTIRE AGREEMENT
This Agreement, shall constitute and define the entire and complete rights of
both parties and shall supersede all prior oral and written offers,
negotiations and agreements between the two parties. In no event shall any
implied contract be asserted by either party except as herein stipulated.
16. INDEMNITY; INSURANCE AND LIMITATION OF LIABILITY
A) INDEMNITY. Consulting Firm shall indemnify, defend and hold harmless AT&T
Broadband, its partners, officers, directors, employees and agents from and
against any and all losses, damages, claims, liabilities, judgments, actions,
settlements, lawsuits, costs (including, without limitation, reasonable
attorneys' fees and costs and expenses of legal actions) and expenses resulting
from or arising out of (i) any breach or reasonably anticipated breach of a
Non-Disclosure Agreement by any Consultant; (ii) or by any gross negligence or
intentional misconduct of any Consultant or Consulting Firm; or (iii) any
matters related to the employment of any Consultant by Consulting Firm.
B) INSURANCE. At all times during the term of this Agreement and during the
performance of any services hereunder, Consulting Firm shall maintain (i)
worker's compensation and any other insurance required by applicable laws; and
(ii) comprehensive general public liability and property damage insurance, in
amounts not less than $1,000,000 per occurrence, $500,000 per person and
$500,000 per occurrence in property damage. Such insurance shall (a) be
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noncancelable except upon 30 days' written notice to AT&T Broadband; (b) name
AT&T Broadband, its parents, subsidiaries, affiliated and/or related companies,
joint ventures and other related business entities and licensees, and their
respective officers, directors, agents, representatives and employees, as
additional insureds; (c) provide primary coverage to AT&T Broadband,
irrespective of any insurance carried by AT&T Broadband, whether primary,
excess, contingent, or on any other basis; and (d) include a waiver of any
rights of subrogation the insurer may have against AT&T Broadband. Consulting
Firm shall provide AT&T Broadband with certificates of such coverage at AT&T
Broadband's request.
C) LIMITATION OF LIABILITY. In no event shall either party hereto be liable to
the other for consequential, indirect, or special damages for any matter
arising out of the performance or nonperformance hereunder of for any breach of
warranty, regardless of the form of action and regardless of whether a party
was advised of the possibility of such damages. The foregoing limitation of
liability is a material inducement to the parties entering into this Agreement.
17. AMENDMENTS AND NOTICES
All amendments, addenda and supplements to this Agreement shall be in writing
and signed by both parties. In no event shall terms contained in any related
purchase order or invoice be made a part of this Agreement. All notices and
claims shall be made only in writing and shall be deemed made upon the earlier
of receipt or three days after deposit in the U.S. mail prepaid. Any
non-written notice or claim shall be of no effect. Notices or correspondence
under this Agreement shall be delivered from one party to the other, by
overnight delivery, facsimile, or by registered or certified mail, addressed
as follows:
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IF TO AT&T BROADBAND:
Lori Allen
AT&T Broadband
5619 DTC Parkway, 4th Floor
Englewood, CO 80111
Telephone: (303) 267-5649
FAX: (303) 488-3204
WITH A COPY SIMILARLY ADDRESSED TO:
Legal Department
9197 South Peoria Street
Englewood, CO 80112
IF TO CONSULTING FIRM:
General Counsel
Aris Corporation
2229 NE 112th Avenue
Bellevue, WA 98006
IN WITNESS WHEREOF, the parties have caused this Agreement to be duly signed
and executed with the intention of becoming legally bound thereby.
ARIS CORPORATION AT&T BROADBAND CORPORATION
By: /s/ KENDALL W. KUNZ By: /s/ JONATHAN H. WALTER
------------------------- -----------------------------
Name:
Title:
Date: 5-30-00 Date: 5/30/2000
------------------------- -----------------------------
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ATTACHMENT "A"
to the
Agreement for Temporary Services in Support of
Information Technology Solutions
REVISION 0 -- MAY 22, 2000
Consulting Firm Named Employees to Perform under this Agreement
Consultant Name Position Hourly Rate Start End
* * * * *
* * * * *
* * * * *
* * * * *
* * * * *
ARIS CORPORATION AT&T BROADBAND
By: /s/ KENDELL W. KUNZ By:
------------------------------- -------------------------------
Name:
Title:
Date: 5-30-00
------------------------------
* Portions of this agreement have been omitted pursuant to a request for
confidential treatment pursuant to SEC Rule 24b-2, to be filed separately with
the SEC no later than April 10, 2001.
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ATTACHMENT B
CONSULTING AGREEMENT
DATED MAY 22, 2000
NON-DISCLOSURE AND OWNERSHIP OF INTELLECTUAL PROPERTY AGREEMENT
THIS NONDISCLOSURE AND OWNERSHIP OF INTELLECTUAL PROPERTY AGREEMENT (the
"Agreement") is entered into effective May 22, 2000 by and between Aris
Corporation ("Consulting Firm") and _______________________ ("Employee").
RECITALS
A. Consulting Firm has entered into a Consulting Agreement dated May 22,
2000 (the "Consulting Agreement") with AT&T Broadband Management Corporation
("AT&T Broadband"), which Consulting Agreement contains strict confidentiality
provisions.
B. In the course of his or her employment by Consulting Firm, Employee
will perform or has performed services on behalf of AT&T Broadband pursuant to
the Consulting Agreement, all of which services are governed by the
confidentiality provisions of the Consulting Agreement.
C. In the performance of services on behalf of AT&T Broadband pursuant
to the Consulting Agreement, Employee may participate in the creation of AT&T
Broadband Work, as defined below, which is subject to the restrictions,
ownership and assignment provisions of the Consulting Agreement.
For valuable consideration, the sufficiency of which is hereby
acknowledged by both parties, Consulting Firm and Employee agree as follows:
1. DUTY OF CONFIDENTIALITY. All non-public information which is part of
AT&T Broadband Work, as defined below, or is disclosed by AT&T Broadband to
Consulting Firm or Employee in business plans, briefings, documents, personnel
records, reports or otherwise obtained by Consulting Firm or Employee in
connection with the provision of services pursuant to the Consulting Agreement,
whether in oral or written form, (collectively, the "Confidential Information")
shall be AT&T Broadband's proprietary right and property, and Employee shall
keep all such Confidential Information in the strictest confidence and not
reproduce, transmit or disclose any such Confidential Information to any other
person, organization or entity without first obtaining the express written
consent of AT&T Broadband. This prohibition shall extend to use of any such
Confidential Information, individually or in aggregate form, in promotional
materials, validation or other studies or in any other way. Notwithstanding the
foregoing, disclosure of Confidential Information shall not be precluded if
such disclosure is in response to a valid order of a court or other
governmental body of the United States or any political subdivision thereof,
provided that Employee has given both Consulting Firm and AT&T Broadband prompt
prior notice of such order and has afforded AT&T Broadband an adequate
opportunity to obtain a protective order or other appropriate protection.
2. INTELLECTUAL PROPERTY RIGHTS. Employee agrees that AT&T Broadband (in
accordance with the Consulting Agreement) will be the sole and exclusive owner
of all rights, title and interest in all ideas, concepts, inventions,
expressions, information, material and works of authorship, whether written
pictorial, photographic, audio, video, digital, electronic, or otherwise,
regardless of the location, possession, form or physical embodiment, including,
without limitation, plans, programs, programming code, systems, work notes,
drafts, specifications, analyses, data, surveys, print copy, artwork, sound
recordings, song lyrics, plates, photo negatives and positives, boards,
preliminary outlines, sketches, letters, invoices, proposals, databases, and
reports (including developments, modifications, and improvements in existing
products, services and Confidential Information of AT&T Broadband), patentable
or unpatentable, prepared in connection with the performance of services for
AT&T Broadband pursuant to the Consulting Agreement, whether conceived or made
by Employee, alone or with others (collectively, the "AT&T Broadband Work").
3. WORK FOR HIRE; ASSIGNMENT OF RIGHTS. Employee acknowledges that any
AT&T Broadband Work which he/she may create, alone or with others, is prepared
by Employee within the scope of his/her employment with Consulting Firm, and, to
the fullest extent permitted under United States copyright law, shall constitute
work made for hire, to which Consulting Firm has sole and exclusive right to
assign to, and has in fact has assigned to, AT&T Broadband. Furthermore, in the
event that all rights, title and interest in the AT&T Broadband Work do not vest
automatically in Consulting Firm. Employee hereby irrevocably assigns to
Consulting Firm, its successors and assigns,
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(for assignment to AT&T Broadband) any and all rights, title and interest that
Employee has in any of the AT&T Broadband Work, including, but not limited to,
copyrights, trade secrets, patents, trademarks and other intellectual property
rights, whether now known or hereafter to become known, for the respective
maximum terms of protection available throughout the world. During the term of,
and following termination of, this Agreement, Employee will not use, or submit
to or permit the use by any third parties of, any AT&T Broadband Work without
AT&T Broadband's prior written consent.
4. COOPERATION IN LEGAL AND BUSINESS MATTERS. Employee agrees to
cooperate fully with Consulting Firm and AT&T Broadband in connection with any
legal or business matter, including, without limitation, any dispute, claim or
lawsuit, relating to the services provided by Employee to AT&T Broadband
pursuant to the Consulting Agreement. AT&T Broadband will have the right to
obtain and hold in its own name the patents, copyrights and trademarks, any
registrations, renewals and extensions thereof, and any other rights or
protections which may be available or become available in the AT&T Broadband
Work. Employee will provide assistance to Consulting Firm and AT&T Broadband in
every proper way to obtain and enforce the rights and protections relating to
the AT&T Broadband Work in any and all countries. Assistance of Employee
includes executing all documents for use in obtaining and enforcing such
patent, copyright, trademark, and other rights and protections in the AT&T
Broadband Work, as Consulting Firm and AT&T Broadband may desire, and any
assignments. Employee hereby irrevocable designates and appoints consulting
Firm and its duly authorized officers and agents as Employee's agent and
attorney-in-fact, to act for and in Employee's behalf and stead to obtain,
perfect and protect AT&T Broadband's proprietary rights in the AT&T Broadband
Work, with the same legal force and effect as if executed by Employee, if
Consulting Firm is unable to obtain for any reason, after reasonable effort,
Employee's consent or signature on any document.
5. TERM. This Agreement shall commence on the date first above written
and shall continue in effect for the term of Consulting Firm's provision of
services to AT&T Broadband pursuant to the Consulting Agreement.
6. SURVIVAL. The restrictions and obligations of Paragraph 1, 2, 3 and 4
of this Agreement shall survive the expiration of this Agreement.
7. THIRD PARTY BENEFICIARY. The parties acknowledge that the execution
of this Agreement by Consulting Firm and Employee is an essential part of AT&T
Broadband's consideration in connection with the Consulting Agreement. The
parties acknowledge that AT&T Broadband is a third party beneficiary of this
Agreement and shall have the right to enforce all provisions of this Agreement
as if it were a party to this Agreement.
8. EQUITABLE RELIEF. Employee acknowledges that AT&T Broadband and
Consulting Firm could be irreparably injured by a breach of this Agreement by
Employee, and that both AT&T Broadband and Consulting Firm, or either of them,
in addition to any other remedies available at law or in equity, shall be
entitled to equitable relief, including injunctive relief and specific
performance, in the event of any breach or anticipated breach of the provisions
of this Agreement by Employee.
9. INVALID PROVISION. If any provision of this Agreement is held to be
illegal, invalid or unenforceable, such provision shall be fully severable and
this Agreement shall be construed and enforced as if such illegal, invalid, or
unenforceable provision had never comprised a part of this Agreement.
10. NOTICES. Any notices or other communications contemplated or required
under this Agreement, in order to be valid, shall be in writing and shall be
given via personal delivery or via U.S. mail at such addresses either
previously designated in the contract or at such other addresses as either
party may designate by notice to the other. Such notices or other
communications shall be deemed given when actually delivered or, if earlier,
three business days after mailing.
11. INTEGRATION. This Agreement supersedes all previous oral and written
agreements, if any, between the parties regarding the confidentiality of
information disclosed to Consulting Firm or Employee by AT&T Broadband; it may
not be amended or altered except by an agreement in writing signed by both
parties.
12. GOVERNING LAW. This Agreement shall be construed and enforced in
accordance with the internal laws of the State of Colorado.
13. COUNTERPARTS. This Agreement may be executed in counterparts which,
taken together, shall constitute one Agreement.
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The parties have entered into this Nondisclosure and Ownership of
Intellectual Property as of the date first above written.
ARIS CORPORATION
By:
------------------------------------
Name:
Title:
EMPLOYEE
By:
------------------------------------
Name:
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