Subcontract Agreement - Ventix Systems Inc. and Perficient Inc.
SUBCONTRACT AGREEMENT
This Subcontract Agreement is made as of March 15, 1999 ("Effective
Date") by and between Ventix Systems Inc. ("Company") with principal offices
at 211 E. 7th Street, 10th Floor, Austin, TX 78701 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 thirty (30) 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"); provided, however, that upon the third rejection, Company may
terminate this Agreement by five (5) days notice unless the Deliverables and
Services are accepted during the notice period.
1.4 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.
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2. PAYMENT
2.1 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.
2.2 Unless invoicing is tied to deliverable milestones
specified under a given Project Assignment, Consultant will invoice Company
on a monthly basis for work done by Consultant during the preceding month.
Each invoice is due and payable thirty (30) days after the invoice date.
3. CONFIDENTIALITY
3.1 For purposes of this Agreement, "Proprietary
Information" is information that was developed, created, or discovered by the
Company, or which became known by, or was conveyed to the Company, which has
commercial value in the Company's business. "Proprietary Information"
includes, but is not limited to, trade secrets, copyrights, ideas,
techniques, know-how, show-how, inventions (whether patentable or not) and/or
any other information of any type relating to designs, configurations,
toolings, schematics, master works, algorithms, flow charts, circuits, works
of authorship, formulae, mechanisms, research, manufacture, assembly,
installation, marketing, pricing, customers, salaries and terms of
compensation of Company employees, and/or cost or other financial data
concerning any of the foregoing or the Company and its operations generally.
Consultant understands that the contracting arrangement creates a
relationship of confidence and trust between Consultant and the Company with
respect to Proprietary. Except for purposes permitted under this Agreement,
Consultant hereby agrees to not disclose or use any Proprietary Information
and agrees to take precautions to prevent any unauthorized disclosure or use
of the Proprietary Information consistent with precautions used to protect
its own confidential information, but in no event less than reasonable care.
The obligations of Consultant hereunder shall not apply to any materials or
information which it can demonstrate, through documented evidence (a) is now,
or hereafter becomes, through no act or failure to act on the part of
Consultant, generally known or available; (b) is known by the Consultant at
the time of receiving such information as evidenced by its records; (c) is
hereafter furnished to Consultant by a third party, as a matter of right and
without restriction on disclosure; (d) is independently developed by the
Consultant without use of any Proprietary Information; or (e) is the subject
of a written permission to disclose provided by the Company. Notwithstanding
any other provision of this Agreement, disclosure of Proprietary Information
shall not be precluded if such disclosure:
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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 Consultant shall first have given notice
to Company in order that the Company may obtain a protective order requiring
that the Proprietary Information so disclosed be used only for which the
order was issued and the Consultant 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 Nothing in this Agreement shall restrict Consultant's
use or disclosure of know-how or other information of general applicability
in the conduct of Consultant's business (including patterns, methods,
techniques, processes or discoveries) learned or developed by Consultant in
the course of providing Services hereunder; provided, however, that no
license is granted to any patent rights or copyrights therein and provided
further that no such use or disclosure shall be made in connection with the
development by Consultant of products or services for any party which should
be reasonably known by Consultant to be a direct competitor of the Company.
3.3 In the event of any breach of this Section, the parties
agree that the Company will suffer irreparable harm for which money damages
would be an inadequate remedy. Accordingly, the Company shall be entitled to
seek injunctive relief, in addition to any other available remedies at law or
in equity.
4. PROPRIETARY INFORMATION AND INVENTIONS
4.1 "Proprietary Right" shall mean any patent, trade
secret, confidentiality protection, know-how right, show-how right,
copyright (including any moral right, provided however that any
non-assignable moral right is waived to the extent permitted by law), mask
work right and any other intellectual property protection. Consultant hereby
assigns to the Company all Consultant's rights, title and interest (present
and future) in and to any and all Proprietary Information (and in and to any
and all Proprietary Rights which may be available in such Proprietary
Information or result therefrom) that Consultant develops or conceives or
reduces to practice or learns, either alone or jointly with others, during
the period of this Agreement, relating to the Company's business. All such
assigned Proprietary Information and all such assigned Proprietary Rights are
hereinafter referred to as "Company Inventions." Consultant hereby
acknowledges and agrees that (a) all Company Inventions shall be the sole and
exclusive property of the Company, its successors and assigns, (b) the
Company, its successors and assigns shall be the sole and exclusive owner of
all Company Inventions throughout the world, and (c) the Company Inventions
shall be the Company's Proprietary Information and shall be treated by
Consultant as such in all respects. Consultant hereby waives and quitclaims
to the Company any and all claims, of any
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nature whatsoever, that Consultant now or may hereafter have for infringement
of any Company Invention. Consultant hereby acknowledges and agrees that all
Company Inventions shall be treated as the Company's Proprietary Information.
4.2 Consultant acknowledges and agrees that all original
works of authorship that are created by Consultant (solely or jointly with
others) within the scope of Consultant's engagement under this Agreement, and
are protectable by copyright are "works made for hire," as that term is
defined in the United States Copyright Act (17 U.S.C., Section 101).
4.3 All Proprietary Information and all patents, copyrights
and other rights in connection therewith shall be the sole property of the
Company. Consultant hereby assigns to the Company any rights Consultant may
have or acquire in such Proprietary Information. At all times, both during
the period Consultant renders services to the Company and after the
contracting arrangement is terminated, Consultant will keep in confidence and
trust and will not use or disclose any Proprietary Information or anything
relating to it without the prior written consent of an officer of the
Company, except as may be necessary in the ordinary course of rendering
services to the Company.
4.4 Consultant agrees that if during the period Consultant
renders services to the Company, without the written permission of an officer
of the Company, Consultant incorporates into a product, process, machine or
otherwise uses an invention, development, or discovery owned by Consultant,
or in which Consultant has an interest, the Company shall be and is hereby
granted a worldwide, irrevocable, sublicenseable, transferable, royalty-free
license to practice the invention, development, or discovery and to make,
have made, use, sell, lease or otherwise dispose of any product incorporating
the invention, development, or discovery, without restriction to the extent
of Consultant's ownership or interest or any derivatives thereof.
4.5 Consultant acknowledges and agrees that all Company
Inventions constitute the Proprietary Information of Company and are
therefore subject to the provisions of Section 3 above.
4.6 Consultant shall assist the Company in every proper way
to apply for, obtain, perfect, evidence, sustain and enforce United States
and foreign Proprietary Rights in (or resulting from) Company Inventions, in
any and all countries. Consultant shall execute, verify and delivery any
document and perform any other act (including for example but not limited to
appearing as a witness) as the Company or its designee(s) may reasonably
request for use in applying for, obtaining, perfecting, evidencing,
sustaining and enforcing such Proprietary Rights and the assignment thereof.
In addition, upon request by the Company or its designee(s), Consultant shall
execute, verify and deliver assignments of such Proprietary Rights to the
Company or its designee(s). Consultant's obligation to assist the Company and
its designee(s) with respect to such Proprietary Rights, in any and all
countries, shall continue beyond the termination of this Agreement, but the
Company shall provide a compensation at Consultant's reasonable rate after
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termination of this Agreement for the time actually spent by Consultant at
the Company's request on such assistance.
If the Company is unable for any reason, after reasonable
effort, to secure Consultant's signature on any document needed in connection
with the actions specified in the preceding paragraph, Consultant hereby
irrevocably designates and appoints the Company and its duly authorized
officers and agents as Consultant's agent and attorney in fact, to act for
and in Consultant's behalf to execute, verify and file any document and to do
any other lawfully permitted act to further the purposes of the preceding
paragraph with the same legal force and effect as if Consultant executed such
document and as if Consultant performed such act.
4.7 All Company Documents shall be the sole property of the
Company. Consultant agrees that Consultant shall not remove any Company
Documents from the business premises of the Company or deliver any Company
Documents to any person or entity outside the Company, except as required to
do in connection with rendering services to the Company. Consultant further
agrees that, immediately upon Company's request and in any event upon
termination of this Agreement, Consultant will return all Company Documents,
apparatus, equipment and other physical property, or any reproduction of such
property.
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 during the term of this Agreement to
possess, install and use the Software for such limited purposes. Consultant
acknowledges that Software is the Proprietary Information of Company and
therefore subject to the provisions of Section 3 above.
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 ten (10) days prior written
notice.
7. WARRANTY
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Consultant represents and warrants that performance of all
the terms of this Agreement will not breach any agreement to keep in
confidence proprietary information acquired by Consultant in confidence or in
trust prior to the execution of this Agreement. Further, Consultant warrants
that 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 during the thirty (30) day period after Acceptance,
Consultant will, without charge for its time expended, re-perform the
Services and provide substitute Deliverables meeting the Acceptance Criteria
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 all amounts paid by Company for such Services and
Deliverables 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.
8. TERM AND TERMINATION
8.1 This Agreement is effective as of the Effective Date
and will continue for 3 years unless earlier terminated as set forth below.
This Agreement may be terminated by: (a) the Company pursuant to the
provisions of Section 1.3 above; or (b) by either party, with or without cause,
at any time upon thirty (30) days prior written notice to the other party;
provided, however, that no termination without cause under subsection (b)
hereof will be effective until any outstanding Project Assignments have been
completed. The rights and obligations contained in Articles 3
("Confidentiality") 4 ("Proprietary information and Inventions"), 7 ("Limited
Warranty; Disclaimer"), 8 ("Term and Termination"), 10 ("Limitation of
Liability") and 11 ("General Terms and Conditions"), and any accrued payment
obligations under Article 2 ("Payment") for Services and Deliverables which
have been accepted by the Company, 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.
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10. LIMITATION OF LIABILITY
Except for damages arising due to a breach of the
provisions of Section 3 above, 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 such party has been advised of the possibility of such damages. The
foregoing provisions limiting damages and excluding consequential damages are
independent of any exclusive remedies for breach of warranty set forth herein.
11. GENERAL TERMS AND CONDITIONS
11.1 During the term of this agreement and for a period of
one (1) year thereafter, each party agrees that it shall not encourage or
solicit any employee of the other party, or any person who has within the
prior six (6) months been an employee of the other party, to leave the employ
of the other party for any reason; without the express written permission of
the other party.
11.2 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.
11.3 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.
11.4 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 tile 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.
11.5 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
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objectives of such unenforceable or invalid provision within the limits of
applicable law or court decisions.
11.6 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.
11.7 Each party 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, but not limited to,
Proprietary Information and the Deliverables. Each party agrees that it will
not export or re-export any Proprietary Information or Deliverables in any
form, without the appropriate United States and foreign governmental licenses.
11.8 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.
11.9 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.
11.10 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 aggrement 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.
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IN WITNESS WHEREOF, the parties have executed this Subcontract
Agreement as of the date last written below.
"Consultant" "Company"
Perficient, Inc.
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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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