Consulting Services Subcontract Agreement - Motive Communications Inc. and Perficient Inc.
[LOGO] MOTIVE COMMUNICATIONS, INC.
CONSULTING SERVICES SUBCONTRACT AGREEMENT
This Subcontract Agreement by and between Motive Communications, Inc.
("Motive") with principal offices at 9211 Waterford Centre Blvd, Suite, 100,
Austin, TX 78759 and PERFICIENT, INC. ("Consultant") with principal offices
at 7600 - B North Capital of TX Hwy, Suite 220, Austin, TX 78735 sets forth
the terms and conditions under which Consultant will provide certain
consulting services to Motive.
1. Scope of Services
1.1 Consultant agrees to provide the professional computer
consulting services ("Services") described on separately
executed Statements of Work (the "Statement of Work") as may
from time to time be issued hereunder.
1.2 Each Statement of Work shall define the specific Services
authorized by Motive, the schedule or term, The applicable
rates and charges therefor, and other appropriate terms and
conditions. All items prepared or required to be delivered
under any Statement of Work are collectively referred to
herein as the "Deliverables".
1.3 Each Statement of Work shall be governed by the terms and
conditions of this Agreement and in the event of any conflict
between this Agreement and a Statement of Work, the provisions
of the Statement of Work shall prevail.
1.4 Consultant understands and agrees that by executing this
Agreement, Motive is not committing or obligating itself to
use the services of the Consultant and that no work or charges
are or shall be authorized hereunder unless and until
authorized in writing by a Statement of Work signed by both
parties.
2. Term
2.1 This Agreement shall remain in effect until terminated by
either party as provided herein.
2.2 Each Statement of Work shall remain in effect until the work
authorized thereunder is completed or is earlier terminated as
provided herein.
3. Price and Payment
3.1 All Services to be performed on an hourly basis shall be at
the rates specified in a Statement of Work.
3.2 Those Services which are priced on other than an hourly basis
will be at the prices and fees specified in the applicable
Statement of Work.
3.3 Unless invoicing and payment is tied to milestones specified
under a given Statement of Work, Consultant will invoice Motive
monthly. All invoices shall be submitted by Consultant on or
before the fifteenth of the month following the month in which
such services were rendered or during which applicable milestones
or other payment events were completed. Consultant acknowledges
that its failure to render invoices by the fifteenth of the
following month may result in rejection, or delayed payment, of
such invoices by Motive and Consultant assumes all risks from
its failure to timely submit invoices.
3.4 All invoices which have been timely submitted in accordance
with the provisions of Section 3.3 shall be paid by Motive on
the last occurring of (i) forty-five (45) days from receipt of
Consultant's invoice.
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4. Confidentiality
4.1 Consultant agrees to keep confidential all Deliverables and all
technical, product, business, financial, and other information
regarding the business and software programs of Motive and/or or
Motive's client (the "Confidential Information"), including but
not limited to programming techniques and methods, research and
development, computer programs documentation, marketing plans,
customer identity, and business methods.
4.2 Consultant shall at all times protect and safeguard the
Confidential Information and agrees not to disclose, give,
transmit or otherwise convey any Confidential Information, in
whole or in part, to any other party.
4.3 Consultant further agrees not to attempt to ascertain the
source code of any Motive computer program by unauthorized
access or review, reverse engineering, decompilation,
disassembly, or any other technique or method.
4.4 Consultant agrees that it will not use any Confidential
Information for its own purpose or for the benefit of any
third party and shall honor the copyrights of Motive and/or a
client and will not copy, duplicate, or in any manner
reproduce any such copyrighted materials.
4.5 The provisions of this Article 4 shall survive termination or
expiration of this Agreement or any Statement of Work
hereunder. Motive or its client shall have the right to take
such action it deems necessary to protect its rights
hereunder, including, without limitation, injunctive relief
and any other remedies as may be available at law or equity.
5. Ownership
5.1 Consultant agrees that all Deliverables are works made for
hire and shall belong exclusively to Motive and no rights
thereto shall accrue in any manner to the Consultant. In
addition, Motive shall be the sole owner of all patents,
copyrights, trade secrets and other intellectual property
rights related to the Deliverables. Deliverables made under a
SOW may be used during performance of other Motive SOW's at
other Motive Customer engagements. The Consultant does not
have the right to use any Deliverables if Consultant is not
performing such services on behalf of Motive under a Motive
SOW.
5.2 Consultant agrees to execute all documents required by Motive
to apply for, register, perfect, obtain or enforce any
ownership and intellectual property rights pertaining to a
given Deliverable. Any effort requested of Consultant to
support this effort will be at mutually agreeable rates.
6. Motive's Facilities
6.1 To the extent Consultant has access to or uses the facilities
or computer resources of Motive or Motive's client, Consultant
agrees to comply at all times with the applicable rules and
regulations regarding safety, security, use, and conduct.
7. Records and Reports
7.1 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.
7.2 Copies of the foregoing records and a status report in such
detail as Motive shall reasonably require shall be furnished
to Motive at such times and frequencies as Motive may from
time to time request.
7.3 Motive 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.
8. Warranties of Consultant
8.1 Consultant warrants that the Services shall be performed in a
workmanlike and professional manner.
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8.2 Consultant warrants that all employees assigned to perform work
under this Agreement shall have a level of skill and experience
commensurate with the requirements of the task to which such
employee is required to perform. Consultant agrees to promptly
replace any employee assigned to this Agreement who is not
acceptable to Motive and to make the services of any key persons
specified on a given Statement of Work available for performance
of Services thereunder.
8.3 Consultant warrants that all Deliverables shall be the original
work product of Consultant and will not be based on, or derived
from, the proprietary information or items of a third party and
that none of the Deliverables will infringe any copyrights,
patents, trade secrets, or other proprietary rights of a third
party. Consultant shall defend, indemnify and hold Motive
harmless from and against any and all damages arising out of any
claim brought by a third party that any Deliverable is
infringing.
8.4 Consultant further warrants that all Deliverables shall conform
with applicable specifications and requirements as set forth on
the Statement of Work. Consultant shall correct all errors,
defects, inconsistencies, or malfunctions in any of the
Deliverables discovered by Motive or its client during the period
ending thirty (30) days from Motive's receipt of any programs,
documentation or other materials prepared hereunder. If Motive is
required under a contract with its customer to provide any unique
terms or a warranty greater than thirty days, Motive will notify
Consultant of such requirement and this agreement will be
modified accordingly by mutually agreement.
9. Termination
9.1 This Agreement or any Statement of Work hereunder may be
terminated prior to expiration or completion in accordance
with the following:
9.1.1 By either party without cause on fifteen
(15) days written notice. However, no such
termination initiated by Consultant shall be
effective until all applicable Statements of
Work have been completed.
9.1.2 By Motive in the event Consultant does not
replace an employee of Consultant who is not
acceptable to Motive within five (5) days
from Motive's written request.
9.1.3 By either party in the event the other has
failed to perform any obligation required to
be performed under this Agreement or an
Statement of Work and such failure is not
corrected within thirty (30) days from
receipt of written notice advising of such
failure from the other party.
9.2 Upon completion, termination, or expiration of this Agreement
or a given Statement of Work, Consultant shall deliver to
Motive all copies of all Deliverables in their then current
form or state, whether complete or incomplete, and return to
Motive all applicable Confidential Information.
10. Independent Contractor
10.1 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 Motive. Consultant
shall not be entitled to any of the fringe benefits of Motive
and shall have no authority to bind, commit, contract for or
otherwise obligate Motive in any manner whatsoever.
Furthermore, Consultant shall withhold and pay Social
Security, income taxes, and other employment taxes for itself
and its employees.
11. Liability
11.1 Except with respect to Consultant's obligations under Articles
4, 8 and 13, neither party shall be liable to the other for
any lost profits or indirect or consequential damages arising
under this Agreement or any Statement of Work.
12. Assignment and Subcontracting
12.1 Consultant shall not assign this Agreement or any Statement of
Work or subcontract any work required to be performed by it
without the prior written consent of Motive.
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13. Non-solicitation and Non-compete
13.1 During the term this Agreement is in effect and for a period of
six (6) months thereafter, neither party shall solicit employment
to any employees then currently employed by the other party
without the prior written consent. Notwithstanding the forgoing,
neither party is prevented from hiring an individual who is no
longer employed by other party or is responding to general public
employment advertisements.
13.2 During the term of this Agreement and for a period of one (1)
year thereafter, Consultant agrees not to engage in any
consulting, employment, or to provide any services (i) to or for
a competitor of Motive. For purpose of this paragraph the
competitors of Motive include but are not limited to Tioga, Aveo,
Primus, and other technical support or knowledge base providers
as may be identified by Motive as a competitor. Consultant agrees
to notify Motive if Consultant is considering assigning an
employee to support one of these entities and to insure there is
no conflict with this Paragraph) or (ii) which are essentially
the same as those provided under any Statement of Work hereunder,
or (iii) which pertain to the use, support, implementation, or
training of Motive's software or have any other involvement with
Motive's software.
14. Insurance
Consultant agrees to be insured by insurers reasonably acceptable to
Motive in the following amounts:
14.1 Workers Compensation & Employer's Liability:
As required under the laws of the states in which the work is
performed with Employer's liability limit not less than
$500,000 per occurrence/annual aggregate.
14.2 Commercial General Liability: Covering all operations of the
Consultant including product and completed operations and
contractual liability against claims for personal bodily
injury and property damage with a combine single limit of
$1,000,0000.
14.3 Automobile Liability Insurance:
Covering bodily injury and property damage liability arising
out of the use by or on behalf of the Consultant, if agents
and employees of any owned, non-owned or hired automobile with
combined limits not less than $500,000.
14.4 Errors & Omission 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.
Such insurance coverage as is required under this Agreement shall be in
form and with insurance carriers satisfactory to Motive and without
additional cost to Motive, unless otherwise provided herein. As
evidence of said coverage, Consultant shall forward Certificates of
insurance, or copies of insurance policies, to Motive, which shall
contain a provision to notify Motive in writing of a cancellation or
non-renewal of said coverage's not less than thirty (30) days before
its effective date.
15. No Use of Motive's Name
Subcontractor shall not use Motive's name in any form of publicity or
release to the public except with the specific approval in writing of
Motive.
16. Attorney's Fees
In the event that any dispute arises between the parties hereto with
regard to any of the provisions of this Agreement of 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 reasonable attorneys' fees.
17. General Terms and Conditions
17.1 This Agreement and its Attachments and Statements of Work
constitute the sole and exclusive statement of the terms and
conditions hereof and supersede any prior discussions,
writings, and negotiations with respect thereto.
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17.2 This Agreement shall not be amended except in writing signed
by both parties.
17.3 This Agreement shall be interpreted and enforced in accordance
with the laws of Texas.
THE PARTIES HERETO AGREE TO THE FOREGOING AS EVIDENCED BY THEIR SIGNATURES
BELOW.
Perficient, Inc. ("Consultant") Motive Communications, Inc. ("Motive")
By: Bryan Menell By: [ILLEGIBLE]
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Name: Bryan Menell Name: [ILLEGIBLE]
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Title: President Title: [ILLEGIBLE]
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Date: February 22, 1999 Date: February 16, 1999
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