Contractor Service Agreement - Vignette Corp. and Perficient Inc.
VIGNETTE CORPORATION
CONTRACTOR SERVICE AGREEMENT
This Agreement, dated the 31 day of December, 1998 (the "Effective Date"),
between Vignette Corporation ("Vignette"), a Delaware corporation having a place
of business at 901 South Mo Pac Expressway, Building 3, Austin, Texas 78746 and
Perficient, Inc. ("Contractor") having a place of business at 7600-B N. Capital
of Texas Highway #220, Austin, Texas 78731.
WHEREAS, the parties are mutually desirous that Contractor perform certain work
for Vignette,
NOW, THEREFORE, Vignette and Contractor hereby agree as follows:
1. TERM
The term of this Agreement shall commence on the Effective Date and shall
remain in force for a period of three years from the Effective Date.
2. ORDER OF PRECEDENCE
a. This Agreement, inclusive of all Assignment Orders, attachments and
exhibits attached hereto and made a part hereof, constitutes the entire
Agreement between the parties with respect to the subject matter hereof, and
supersedes all prior understandings, communications and Agreements whether
written or verbal. Terms and conditions of this Agreement take precedence over
the terms and conditions of any other Agreement between Vignette and Contractor,
including but not limited to Vignette's purchase orders.
b. No amendment, modification, or early termination of this Agreement
shall be valid or binding unless in writing and executed by Vignette and
Contractor in accordance with Section 20, Notice.
c. This Agreement and its Attachments shall be binding upon and inure
solely to the benefits of each of the parties hereto and their respective
successors, and no other persons or entities shall be beneficiaries hereunder or
have any rights to enforce any part of this Agreement.
3. PAYMENT AND INVOICING
a. Vignette agrees to pay Contractor only for services authorized by
Vignette and performed by Contractor pursuant to an Assignment Order (defined
below) inclusive of all attachments referenced therein (collectively
"Attachments") and made a part of this Agreement. Contractor shall charge
Vignette for such services in accordance with the terms set forth in such
Attachment, or if no specific terms are set forth therein, in accordance with
the rate schedule attached hereto as Exhibit A. There shall be no other amount
due or payable by Vignette to Contractor under this Agreement or in connection
with the work to be performed by Contractor, except as authorized by this
Agreement and an Attachment.
b. Charges for services performed by Contractor shall be invoiced to
Vignette no later than 45 days following the date on which such service is
performed by Contractor and in accordance with any billing schedule as indicated
in the appropriate Attachment. Vignette shall have no obligation to pay any
amounts invoiced that were performed more than 60 days prior to the date of the
invoice. Each invoice shall be subject to verification by Vignette with regards
to the accuracy and substantiation of the amount invoiced for services performed
by Contractor. If Vignette in good faith believes an invoice to be wholly or
partially inaccurate or unsubstantiated, Vignette will return such invoice
unpaid with an explanation of the perceived deficiencies. Contractor shall
correct such invoice and resubmit it to Vignette. Vignette shall pay amounts net
30 days following Vignette's receipt of an accurate and properly substantiated
invoice. Amounts paid may be via check or electronic wire transfer to
Contractor's bank account. Invoices shall be
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submitted in duplicate to Vignette Corporation at the address specified in
Section 20, Attn: Accounts Payable, or at such other address as Vignette may
notify Contractor from time to time.
c. Each invoice shall be itemized in such detail as Vignette may
reasonably request. Contractor shall submit, in support of each invoice,
detailed time sheets substantially in the form attached hereto as Exhibit B,
with complete, plain-English descriptions of the work performed for each
invoiced increment. All blanks must be filled in for each invoiced increment, or
such amount shall not be paid. Contractor warrants that the amounts filled in on
each time sheet submitted shall be accurate, and shall reflect actual work
performed on behalf of Vignette. Personal or administrative time that does not
involve the actual performance of work pursuant to an Assignment Order, such as
time for meals, the first two hours travel time on each direction of any given
trip, weekend stayovers, down time due to Contractor's failures or fault, etc.,
shall not be included on time sheets, unless actual productive work is being
performed during such time. Each invoice shall contain all expenses that
Contractor believes to be reimbursable that relate to the work performed for
such invoice.
d. No expenses of Contractor incurred or arising out of the work
performed under this Agreement shall be considered reimbursable except as
outlined in the Vignette travel guidelines as specified in Exhibit C.
4. SERVICES TO BE PERFORMED
a. The services required to be performed by Contractor under this
Agreement may be requested orally or may be set forth in a writing executed by
Vignette (both oral and written direction are referred to as an "Assignment
Order"), inclusive of all attachments referenced therein. The work specified in
an Assignment Order is an "Assignment."
b. Contractor will use its best efforts to provide the consulting
services and Deliverables specified in each Assignment Order. "Deliverables"
shall mean any and all materials, including without limitation, any
information, designs, specifications, instructions, software, data, course
materials, computer programming code, reusable routines, computer software
applications, and any documentation relating to any of the foregoing as
specified in the Assignment Order, according to the terms of this Agreement.
"Consulting Services" shall mean the professional services provided
hereunder. All services performed under this Agreement shall be completed to
the satisfaction of Vignette who shall, in all cases, determine the amount,
quality, acceptability, and fitness of the work that is to be paid for
hereunder. Vignette shall decide all questions that may arise as to the
fulfillment of the services herein on the part of the Contractor, and the
determination and decision thereon shall be final and conclusive.
c. Contractor shall be considered in default of this Agreement if work
performed by Contractor does not conform to the requirements of the relevant
Assignment Order as determined by Vignette, in which case Vignette may, at its
option; 1) request Contractor to re-perform such work at no additional charge to
Vignette, 2) request a refund of time paid for work not in conformity with the
Assignment Order, 3) request Contractor to replace personnel if Vignette is not
satisfied with their performance, or 4) terminate this Agreement pursuant to
Section 11, Termination. Contractor may, at Vignette's election, be allowed to
attempt to cure any default as defined by this Section, in which case Contractor
is allowed a maximum of fifteen (15) calendar days in which to do so.
d. Contractor shall deliver original copies of all Deliverables
hereunder to Vignette as directed by Vignette. Contractor shall deliver copies
of such Deliverables to Vignette's end-user customer (a "Client") if Vignette
so requests.
e. Unless explicitly authorized by Vignette, Contractor shall not
contact a Client directly to request any deviations from the terms of this
Agreement or any Assignment Order. Contractor shall contact Vignette for all
such issues. Vignette shall take the role of project manager unless expressly
stated otherwise in an Assignment Order.
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f. Contractor shall ensure that its most senior employee assigned to a
project pursuant to an Assignment Order delivers to Vignette a weekly report
detailing the progress of the assigned work. Such reports shall be in a form
reasonably acceptable to Vignette.
5. STAFFING OF PERSONNEL
a. Contractor shall assign to services performed for Vignette only
personnel who shall be qualified to perform the work referenced in the
appropriate Assignment Order. Upon the request of Vignette, Contractor shall
provide Vignette with a verified resume for any Contractor employee proposed by
Contractor to perform services hereunder, prior to such employee's assignment.
Upon the request of Vignette, Contractor shall make available each Contractor
employee to Vignette for an interview to determine such employee's suitability
for performing work under a given Assignment Order, prior to such employee's
assignment. Vignette, in its sole objective discretion, may reject proposed
Contractor employees, whom it deems unacceptable to Vignette. Vignette has the
right to reasonably require Contractor to permanently remove from the
performance of work hereunder for Vignette any Contractor personnel assigned
under this Agreement or any Attachment hereto. Vignette and Contractor shall
mutually agree as to which of the qualified personnel should be assigned to each
Assignment. If an employee of Contractor stops work on an Assignment for any
reason other than the completion of the Assignment, Contractor shall use its
best efforts to provide a suitable replacement for such employee within two
business days, at no extra cost or expense to Vignette.
b. Contractor is responsible for the direct management and supervision
of its personnel through its designated representative and shall be free to
exercise discretion and independent judgment as to the method and means of
performance of the services contracted for by Vignette, as long as they meet the
published methodologies and requirements of Vignette's Contractor Certification
Program, if any, of the Assignment Order, any accomplishments, goals and/or
objectives specified by Vignette, and of this Agreement. Contractor personnel
shall in no sense be considered employees of Vignette and Contractor personnel
will not, by virtue of this Agreement, be entitled or eligible to participate in
any benefits or privileges extended by Vignette to its employees.
c. Vignette endorses a safe and drug free work environment. Contractor
personnel found to be a potential risk to Vignette due to substance abuse shall
not be assigned to Vignette projects without prior written approval from
Vignette. Contractor will indemnify Vignette for any losses, injury, damage or
liability as a result of any employees of Contractor being under the influence
of alcohol or illegal substances.
d. If an employee of Contractor stops working on an Assignment for any
reason, Contractor agrees to obtain from such employee all Confidential
Information and Deliverables of Vignette, as well as any of Vignette's equipment
or other Materials (defined below) in such employee's possession, and return
same to Vignette.
e. Vignette will not provide office space or any computer or other
equipment for Contractor's employees except as specified on a particular
Assignment Order. Contractor agrees to ensure each of its employees is properly
equipped to perform the duties assigned to such employees.
6. INTELLECTUAL PROPERTY
a. "Contractor Materials" shall mean any materials, including without
limitation, designs, methodologies and content which were created, owned,
acquired, or licensed by Contractor or by Contractor's agents, consultants or
employees prior to commencement of work under this Agreement or which were or
will be created, owned, acquired, or licensed by Contractor or Contractor's
agents, consultants or employees outside the scope of the services to be
provided to Vignette under this Agreement.
b. "Moral Rights" shall mean (i) any right of paternity or integrity,
(ii) any right to claim authorship or require authorship identification, (iii)
any right to object to distortion, mutilation or other modification of, or
other derogatory action in relation to, a work of authorship, and (iv) any
similar right
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existing under judicial or statutory law of any country or under any treaty,
irrespective of whether such right is generally referred to as a "moral right".
c. "Proprietary Right" shall mean any patent, trade secret,
confidentiality protection, know-how right, show-how right, mask work right,
copyright (e.g. including but not limited to any Moral Right), and any other
intellectual property protection and intangible interests and legal rights of
exclusion, of any and all countries, including for example but not limited to
(i) any person's publicity or privacy right, (ii) any utility model or
application therefor, (iii) any industrial model or application therefor, (iv)
any certificate of invention or application therefor, (v) any application for
patent, including for example but not limited to any provisional, divisional,
reissue, reexamination or continuation application, (vi) any substitute, renewal
or extension of any such application, and (vii) any right of priority resulting
from the filing of any such application.
d. "Vignette Inventions" shall mean, except to the extent comprised
of Contractor Materials, (i) any and all Deliverables that are created,
invented, developed, prepared, conceived, reduced to practice, made,
suggested, discovered, received or learned by Contractor, either alone, or
jointly with one or more other persons, during the course of performance of
Contractor's obligations hereunder, and (ii) any and all Proprietary Rights
that may be available in such Deliverables or result therefrom.
e. Contractor does hereby, without reservation, on behalf of itself
and of its employees, irrevocably:
(i) sell, assign, grant, transfer and convey to Vignette (and
Vignette's successors and assigns): Contractor's entire right, title and
interest (present and future and throughout the world) in and to all
Vignette Inventions; provided however that, to the extent that any one or
more Vignette Inventions includes a work of authorship created by
Contractor (solely, or jointly with others), each such work of authorship
shall automatically be deemed to be created as a "work made for hire" (as
that term is defined in the United States Copyright Act (17 U.S.C. Section
101)) that is owned solely by Vignette (as between Contractor and Vignette);
(ii) acknowledge and agree that, as between Vignette and
Contractor, (A) all Vignette Inventions shall be the sole and exclusive
property of Vignette, its successors and assigns, and (B) Vignette, its
successors and assigns shall be the sole and exclusive owner of all
Vignette Inventions throughout the world;
(iii) waive and quitclaim to Vignette any and all claims, of any
nature whatsoever, that Contractor has now or may hereafter have for
infringement or violation of any one or more Vignette Inventions;
(iv) consent to any and all use of names, likenesses, voices,
and similar aspects of all Vignette Inventions or related to or associated
with all Vignette Inventions;
(v) authorize Vignette (and its successors, assigns, nominees,
representatives and designees) to apply (in Vignette's own name) for any
and all patents (and similar non-U.S. rights) that may be available in (or
result from) all Vignette Inventions, and to claim any and all rights of
priority without further authorization from Contractor so that such patents
issue in the name of Vignette (or its successors or assigns);
(vi) represent, warrant and covenant that Contractor shall
never assert any Moral Right in any one or more of Vignette Inventions;
(vii) forever waive all Moral Rights in Vignette Inventions;
(viii) represent, warrant and covenant that Contractor shall
disclose and deliver, fully and in writing, to Vignette's designated
representative each and every Vignette Invention promptly after such
Vignette Invention is created, invented, developed, prepared, conceived,
reduced to practice, made, suggested, discovered, received or learned by
Contractor; and
(ix) represent, warrant and covenant that Contractor shall (at
the request of Vignette, or any of its successors, assigns, nominees,
representatives and designees) in every proper way to cooperate and do
everything (at Vignette's sole expense for Contractor's reasonable actual
costs, but without additional charge to Vignette) that Vignette (or any one
or more of its successors, assigns, nominees, representatives and
designees) may reasonably consider necessary or appropriate to assist
Vignette (and its successors, assigns, nominees, representatives and
designees) to prepare and make filings in any and all countries to apply
for, prosecute, register, evidence, defend, obtain, hold, secure,
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vest title to, protect, perfect, maintain, uphold and enforce any and all
Proprietary Rights that may be available in (or result from) Vignette
Inventions, and including for example but not limited to: communicating to
Vignette (and its successors, assigns, nominees, representatives and
designees) any information relating to conception or reduction to practice
or prosecution of any one or more of such Proprietary Rights; testifying
and rendering prompt assistance and cooperation in any and all legal
proceedings (e.g. including but not limited to any opposition, cancellation
proceeding, interference proceeding, priority contest, public use
proceeding, reexamination proceeding, and court proceeding) involving any
one or more of such Proprietary Rights; and executing, verifying and
delivering any and all assignments, oaths, declarations, powers of
attorney, and other instruments and documents. If Contractor fails or
refuses to execute any such assignment, oath, declaration, power of
attorney, instrument or document, Contractor hereby designates and appoints
Vignette (and its successors and assigns) as Contractor's true and lawful
agent and attorney-in-fact (such agency and power of attorney being
irrevocable by Contractor and coupled with an interest in favor of Vignette
and its successors and assigns), with full power of substitution, to act
for Contractor and in Contractor's behalf to do any lawfully permitted act
in furtherance of the purposes of the immediately preceding sentence (e.g.
including but not limited to executing, verifying and filing such
assignments, oaths, declarations, powers of attorney, and other instruments
and documents) in Contractor's name and stead and on behalf of and for the
benefit of Vignette and its successors and assigns, with the same legal
force and effect as if Contractor performed such act, irrespective of
whether in Contractor's name or Vignette's name or otherwise.
f. To the extent permitted under Vignette's agreements with each
Client, Vignette hereby grants back to Contractor a perpetual, royalty-free,
worldwide, nonexclusive and nontransferable license to use, reproduce, display,
perform and prepare the Deliverables and derivative works of the Deliverables
provided hereunder by Contractor to Vignette. The portions of the Deliverables
that include any confidential or proprietary information of the relevant Client
are expressly excluded from such license. Contractor is required to ascertain
Vignette's rights to the Deliverables and whether Vignette has the right to
grant this license back for each Deliverable that Contractor desires to reuse.
g. Contractor agrees to place on all Vignette Inventions that
Contractor creates under this Agreement the following copyright notice, or a
copyright notice as otherwise directed by Vignette:
COPYRIGHT 1998 (or current year) Vignette Corporation. All rights reserved.
h. Contractor will maintain current, written records, in the form of
notes, sketches, drawings, models, samples, summaries, and reports, of all
Deliverables, Vignette Inventions, and other intellectual property created in
the performance of this Agreement or that are suggested by or result therefrom.
Such records will be available to Vignette at all times.
i. Contractor warrants that in the performance of this Agreement,
Contractor's work product and the information, data, designs, processes,
inventions, techniques, devices, and other such intellectual property furnished,
used, or relied upon by Contractor, will not infringe the intellectual property
rights of any third party. Contractor shall inform Vignette in writing, in
advance, if such performance, furnishing, use or reliance could reasonably be
deemed to infringe any patent, copyright trademark, or other such intellectual
property rights of Contractor or of others. The furnishing or using of any such
intellectual property or of Contractor's own intellectual property in the
performance of this Agreement by Contractor, without the prior written consent
of Vignette, shall confer upon Vignette, to the extent Contractor has the
capacity do so, the unrestricted, irrevocable right to sublicense any such
intellectual property without payment of additional consideration by Vignette.
j. Except to the extent comprised of Contractor Materials, all data,
designs, drawings, blueprints, tracings, plans, layouts, specifications,
documentation, memoranda, and work products, including final copy and drafts
that are created, produced, prepared, designed, or provided by Contractor in
performing the work hereunder (hereinafter "Material"), shall be, at the time it
is created, and shall remain, the exclusive property of Vignette. Upon the
termination of this Agreement or completion of the relevant
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Assignment, any and all Material subject to this paragraph, together with all
copies and reprints in Contractor's possession, custody, or control, and all
technology incorporated therein, shall be promptly transferred and delivered to
Vignette, and Contractor shall thereafter make no further use, either directly
or indirectly, of same in whole or in part, except as otherwise provided in (f)
or expressly authorized by Vignette.
k. Vignette warrants to Contractor that in the performance of this
Agreement, the materials as provided to Contractor by Vignette for Contractor to
use in performance of the Consulting Services hereunder will not infringe the
intellectual property rights of any third party.
l. Contractor shall obtain from each of its employees assigned to
perform Consulting Services hereunder the right to perform all obligations
specified in this Section 6 on behalf of such employees, so that all rights of
any of Contractor's employees are subject to the terms of this Section 6.
m. Notwithstanding any other provision of this Section 6, Contractor
shall retain ownership of all intellectual property rights in the Contractor
Materials. To the extent that part or all of such material forms a part of any
material provided by Contractor to Vignette, and to the extent permitted under
Contractor's agreement with any third party, Contractor hereby grants to
Vignette a perpetual, non-exclusive royalty-free worldwide license to use,
reproduce, prepare derivative works of, sublicense, distribute, perform publicly
and display the Contractor Materials. Vignette is required to ascertain
Contactor's rights to the Contractor Materials and whether Contractor has the
right to grant this license back for each Contractor Material that Vignette
desires to use. In addition, Contractor shall own preliminary versions of all
materials not incorporated into final versions of Deliverables or Materials
provided by Contractor to Vignette hereunder, provided that the ownership and
use of such preliminary versions, concepts, ideas, methodologies or approaches
does not infringe i) any copyright of Vignette, ii) any other proprietary right
of Vignette not derived from the Deliverables, or iii) any obligation of
confidentiality of Contractor to Vignette.
n. The terms and conditions of this Section 6 shall survive the
expiration or termination of this Agreement for any reason for a period of
five (5) years.
7. CONFIDENTIAL INFORMATION
a. Prior to performing services on behalf of Vignette, Contractor and
each Contractor employee assigned to perform work under an Assignment Order
shall read and understand the provisions of Sections 6 and 7 of this Agreement.
Contractor warrants and represents that it will ensure that each of its
employees will sign nondisclosure and intellectual property assignment
agreements that contain terms no less restrictive than those contained in this
Agreement.
b. Confidential Information shall mean all information in oral or
written form that is disclosed to a party (the "Receiving Party") by the other
party (the "Disclosing Party") (1) that has not been publicly made known by the
Disclosing Party, either prior to or subsequent to the Receiving Party's receipt
of such information from the Disclosing Party; or (2) that has been designated
as confidential or proprietary by the Disclosing Party, or (3) that the
Receiving Party should know is confidential or proprietary to the Disclosing
Party under the circumstances. Vignette's Software, Vignette Inventions,
Material, training materials, all information regarding a Client, and the terms
of this Agreement shall always be considered Vignette's Confidential
Information. Contractor Materials shall always be considered Contractor's
confidential information.
c. The Receiving Party shall hold such Confidential Information in
strictest trust and confidence for the Disclosing Party and, where relevant, for
the benefit of the relevant Client, and shall not use it (1) except in
furtherance of the relationship set forth in this Agreement, (2) except as
permitted in a separate agreement between the parties; or (3) other than as
necessary for the performance of this Agreement. The Receiving Party shall not
copy, publish, or disclose to any third party such Confidential Information
(including Confidential Information developed by the Receiving Party in the
performance of this Agreement) or proprietary information of others in the
rightful possession of the Disclosing Party to which the Receiving Party may be
exposed during the term of the Agreement, except as may be authorized by the
Disclosing Party in writing. The provisions of this Section 7 shall not apply to
the Disclosing Party Confidential Information (i) that was known to the
Receiving Party prior to disclosure by the Disclosing Party as demonstrated by
adequate documentary evidence in the Receiving Party's possession as of the date
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of such disclosure (ii) that becomes public knowledge without the fault of the
Receiving Party (iii) that is disclosed to the Receiving Party without an
obligation of confidentiality by a third party having the right to lawfully
possess and disclose the same, or (iv) to the extent that is required to be
disclosed by law or legal process.
d. In the conduct of work under this Agreement the Disclosing Party
shall not communicate or otherwise disclose confidential or proprietary
information of others unless the Disclosing Party possesses all necessary rights
to do so.
f. The terms and conditions of this Section 7 shall survive the
expiration or termination of this Agreement for any reason for a period of
five (5) years.
8. SOFTWARE LICENSE.
a. Vignette may, from time to time, at Vignette's sole discretion,
provide Contractor with copies of Vignette's packaged software programs and/or
other software code and related documentation (collectively, the "Software").
Vignette grants Contractor a limited, revocable, nontransferrable and
nonexclusive license to possess, install and use such Software to the extent
reasonably necessary to perform an Assignment, and for no other purpose
whatsoever.
b. Vignette may terminate the license referred to in this Section 8 in
whole or in part at any time, and upon such termination (or termination of this
Agreement), Contractor shall immediately and permanently delete and erase all
intangible copies of Vignette's Software provided hereunder and return any
tangible copies of the Software provided hereunder and possessed by Contractor
to Vignette.
c. Contractor may not use the Software for competitive evaluation
purposes and shall not provide the Software, access to the Software, or any
information about the Software to any third parties, except for Clients
specified by Vignette. Client shall not (and shall not permit any employee or
other third party to) copy, use, analyze, reverse engineer, decompile,
disassemble, translate, convert, or apply any procedure or process to the
Software in order to ascertain, derive, and/or appropriate for any reason or
purpose, the source code or source listings for the Software or any trade secret
information or process contained in the Software, unless Vignette's advance
written approval is obtained.
d. Except as otherwise expressly specified herein, all right, title
and interest in and to the Software and any and all related materials provided
or produced by Vignette shall remain in Vignette.
9. CONFLICTS OF INTEREST
a. During the term of this Agreement, Contractor shall not accept
employment or otherwise engage in work or render services that will conflict
with the relationship of trust and cooperation created hereby or that may
otherwise conflict with Contractor's obligations under this Agreement.
b. Contractor will promptly notify Vignette in writing of and at
such time(s) as any such conflict arises or is discovered.
10. REPORTS, RECORDS, AND COMPLIANCE WITH LAW
a. Contractor agrees to make all required federal, state, and local
reports, records, payroll deductions, and payment in connection with social
security and workman's compensation insurance; all federal, state, and local
payroll and withholding taxes; and all other charges and taxes attributable to
the performance of this Agreement and the employment of Contractor personnel
assigned to perform work hereunder.
b. Contractor warrants to comply with any and all applicable laws and
regulations of the United States and each State and any political subdivision
thereof, including, but in no way limited to, any
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and all laws governing its relationship with its employees, agents, or
subcontractors, including, by way of example, compensation, working hours,
overtime, non-discrimination in employment, etc.
c. Upon request, Contractor shall certify compliance with such
applicable laws and regulations, and provide such evidence of compliance as
Vignette may reasonably request. Vignette shall have the right to audit
Contractor's books and records at Vignette's sole cost for the purpose of
assuring compliance with the foregoing obligations.
11. INSURANCE REQUIREMENTS
a. Without limiting any of the obligations or liabilities of
Contractor, Contractor shall maintain, as long as this Agreement is in effect,
at Contractor's expense, insurance policies of the kind and limits listed below
and shall provide Vignette (and to one or more Clients of Vignette, if required
by such Client(s)), prior to execution of this Agreement, a Certificate of
Insurance evidencing such coverage for the term of this Agreement.
b. Insurance is to be placed with insurers with a Best's Rating of no
less than A:VII, and must be licensed to do business in the State of Texas and
which have been approved by the State of Texas Commissioner of Insurance. All
policies shall be in a form reasonably acceptable to Vignette (and shall name
Vignette as an additional insured. Such policies shall remain in force until
receipt of final payment by Contractor.
Type of Coverage Limits
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Worker's Compensation Statutory
including Alternate Employer Endorsement
and Waiver of Subrogation in favor of
Vignette
Employer's Liability $500,000 Each Accident
$500,000 Disease - Policy Limit
General Liability
Bodily Injury/Property Damage $4,000,000 Each Occurrence
$4,000,000 Aggregate(1)
Comprehensive Form including:
(1) Premises/Operations, Single Limit
(2) Products/Completed Operations,
(3) Contractual Liability,
(4) Independent Contractors,
(5) Broad Form Property Damage,
(6) Personal/Advertising Injury, and
(7) Owner's Contractors Protective
(1)The General Aggregate limit shall apply separately to this Agreement
or the General Aggregate shall be twice the required occurrence limit.
Automobile Liability $4,000,000 Combined Single Limit
per accident for bodily injury and
property damage.
Covering all automobiles, trucks, tractor trailers, motorcycles, or other
automotive equipment, whether non-owned, owned or hired by Contractor or
employees of Contractor, including Vignette as an additional insured with
respect to any non-owned, owned or hired automotive equipment used by or with
the permission of Contractor.
Commercial Blanket Bond $100,000
(employee dishonesty)
Errors and Omissions $500,000
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c. Each Certificate of Insurance shall contain a provision that
coverage afforded under the policies will not be canceled without at least
thirty (30) days prior written notice to Vignette (and/or to a Client, if the
Client so requires) in the event of cancellation or material change, in
accordance with Section 20 of this Agreement. Furthermore, Contractor will
obtain an endorsement to its policies providing that the Contractor's insurance
shall be primary as respects Vignette, its officers and employees as well as
each Client, if required. Any other valid and collectible insurance or
self-insurance maintained by or in the name of Vignette shall be in excess of
Contractor insurance and shall not contribute to it.
d. Contractor shall cause each insurance policy issued hereunder to
provide:
(i) that Vignette is named as an Additional Insured as their
interests may appear, and that the coverage shall contain no special
limitations of the scope of protection afforded Vignette, its officers
or employees; and
(ii) that all amounts payable thereunder will be paid to
Vignette or Vignette's assigns.
e. It is Contractor's responsibility to ensure that the insurance
requirements listed above are in effect for the full term of this Agreement.
Cancellation or change of coverage without Vignette's approval shall be
considered a BREACH OF CONTRACT. In addition, all of Contractor's outside
consultants or subcontractors shall maintain adequate insurance as detailed
above if performing work for Vignette on Contractor's behalf. Contractor is
responsible to verify and maintain Certificates of Insurance from such outside
consultants or subcontractors.
f. The original Certificate of Insurance should be mailed to Vignette
Corporation, attn. Vaughn Bradley, and to such Client address(es) as Vignette
may reasonably require.
12. TERMINATION
a. Without Cause - Either party may terminate this Agreement, or any
Attachment hereto, without cause, upon thirty (30) days written notice to the
other party.
b. With Cause - In the event a party is in default of this Agreement,
the other party shall have the right to terminate this Agreement, or any
Attachment hereto, upon fifteen (15) days written notice. The right to terminate
this Agreement for cause shall include, but not be limited to, breaches
involving the disclosure of the other party's Confidential Information, the
failure of Vignette to pay amounts due within a reasonable time, the failure of
Contractor to perform any services in accordance with this Agreement or any
Attachment hereto, and the failure of Contractor to make timely progress to such
an extent that Vignette reasonably deems that performance under this Agreement
or under any Attachment hereto is endangered.
c. In the event of any termination of this Agreement or of any
Assignment Order, Vignette shall be liable to Contractor only for such sums as
shall represent the pro-rata portion of work performed as indicated in the
relevant Assignment Order(s) in accordance with this Agreement and such
Assignment Order(s) prior to the effective date of such termination. All such
sums submitted are subject to review and approval by Vignette prior to payment.
13. INDEMNIFICATION
Contractor shall indemnify, defend and hold harmless Vignette and its
affiliates and their respective directors, officers, shareholders, employees and
agents from and against any and all claims, demands, suits, actions, judgments,
costs and liabilities (including attorneys' fees) (each an "Indemnified Loss")
that arises out of, results from, or is incidental to this Agreement or the work
or services performed by Contractor hereunder, to the extent that such
Indemnified Loss is caused by or results from the acts, negligence, or fault of
Contractor, or Contractor's employees, agents, and/or subcontractors; provided,
however, Contractor shall only be liable for that portion of the total
Indemnified Loss that Contractor's acts or omissions bear to the acts and
omissions of all persons contributing to such total Indemnified Loss as it
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is the parties' intention that the indemnity under this Section be apportioned
on a comparative basis taking into account the relative factors of all persons
contributing to such loss.
14. LIMITATION OF LIABILITY
a. NOTWITHSTANDING ANYTHING TO THE CONTRARY HEREIN SET FORTH, IN THE
EVENT OF ANY TERMINATION OF THIS AGREEMENT OR AN ATTACHMENT HERETO BY CONTRACTOR
BY REASON OF VIGNETTE'S DEFAULT OR FAILURE TO PERFORM HEREUNDER, VIGNETTE SHALL
BE LIABLE TO CONTRACTOR ONLY FOR THE APPLICABLE CHARGES HEREUNDER FOR WORK
ACTUALLY PERFORMED BY CONTRACTOR UP TO THE EFFECTIVE DATE OF TERMINATION.
b. IN NO EVENT WILL EITHER PARTY BE LIABLE FOR ANY INDIRECT, SPECIAL,
OR CONSEQUENTIAL DAMAGES IN CONNECTION WITH OR ARISING OUT OF THIS AGREEMENT,
EXCEPT FOR THOSE ARISING FROM CONTRACTOR'S OR VIGNETTE'S BREACH OF SECTIONS 6,
7, 8 AND/OR 13.
c. Vignette makes no guarantees, express or implied, regarding any
amount of work that may be assigned to Contractor pursuant to this Agreement.
15. YEAR 2000 WARRANTY
Contractor warrants that the Deliverables provided hereunder: (i) shall be
designed to be Year 2000 compliant, which shall include, as an illustration but
not a limitation, date data century recognition, and calculations that
accommodate same and multi-century formulae and date values; (ii) operates or
will operate without error or interruption and without human intervention during
and after the calendar year 2000 AD with respect to dates and date dependent
data; and (iii) shall not end abnormally or provide invalid or incorrect results
as a result of date data, specifically including date data which represents leap
years, different centuries or more than one century.
16. FORCE MAJEURE
Neither party shall be liable for its failure to perform any of its
obligations hereunder during any period in which such performance is delayed by
fire, flood, war, embargo, riot or the intervention of any government authority
("Force Majeure"), provided that the party suffering such delay immediately
notifies the other party of the delay. If, however, Contractor's performance is
delayed for reasons set forth above for a cumulative period of fourteen (14)
calendar days or more , Vignette, notwithstanding any other provision of this
Agreement to the contrary, may terminate this Agreement and/or any Assignment
Order hereunder by notice to Contractor. In the event of such termination,
Vignette's sole liability hereunder will be for the payment to Contractor of any
balance due for services rendered by Contractor prior to Contractor's
notification of delay to Contractor. In the event the parties do not terminate
this Agreement due to a Force Majeure, the time for performance or cure will be
extended for a period equal to the duration of the Force Majeure.
17. FACILITY ACCESS
a. For on-site service, Contractor shall have reasonable and free
access to use only those facilities of Vignette to the extent necessary for
Contractor to perform under this Agreement and shall have no right of access
to any other facilities of Vignette.
b. Individuals working on Vignette property are required to comply with
all other local, state, province or country laws and regulations governing
workplace safety and hazardous substances and materials usage. Contractor will
comply with all applicable Vignette rules and regulations as shall be applicable
to a third party having access to and/or performing work at Vignette's
facilities.
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c. References to facilities and sites of Vignette in Sections 16 and
17 shall include facilities and sites of the relevant Client(s).
18. PROHIBITED ITEMS, SUBSTANCES, AND SUBSTANCE ABUSE
a. "Substance" shall include alcohol, controlled substance (i.e.,
illegal drugs and prescribed drugs), over-the-counter medication, and any other
substances that may be inhaled, injected, absorbed, or taken by mouth that may,
in Vignette's opinion, impair an individual. The use, sale, or possession of
controlled substance, or drug paraphernalia, alcoholic beverages, firearms,
weapons, explosives, or ammunition on a Vignette site, or the performance of
services by personnel while under the influence of a Substance, is strictly
prohibited. Vignette shall act to eliminate any prohibited items and Substance
use which increases the potential for accidents, absenteeism, poor performance,
poor morale, and damage to Vignette's property or reputation. Contractor shall
remove from Vignette's site any employee, agent, invitee, licensee, or other
person engaged by Contractor in violation of this provision, and shall notify
Vignette of actions taken.
b. Vignette's Clients may cause reasonable searches to be made of
personnel, personal effects, and vehicles. Prohibited items and Substances
may be confiscated and transferred to appropriate law enforcement
authorities. Any person who refused to consent to a search shall be required
to leave Vignette's site immediately and will not be allowed to return.
19. TRADEMARKS AND RELATED MATTERS:
a. Contractor is authorized to use the Vignette logos and trademarks
specified on Exhibit D only to the extent necessary to meet the required
Assignment criteria, and only upon Vignette's advance written approval of the
form and content of use. No other rights with respect to Vignette's or any
Client's trademarks, trade names, or brand names are conferred, either expressly
or by implication, upon Contractor.
b. Permission granted relative to the trademarks and trade names shall
terminate with this expiration or termination of this Agreement. Contractor
shall immediately cease using the trademarks and trade names of Vignette upon
expiration or termination of this Agreement.
20. NOTICE
All notices (except for invoices) under this Agreement shall be in writing and
shall be sent by United States Postal Service, Certified Mail, Return Receipt
Requested, postage prepaid or other receipt verifiable delivery, and addressed
as follows (or to such address as a party notifies the other from time to time):
To Contractor: Perficient, Inc.
Attention: Bryan Menell
7600-B N. Capital of Texas Hwy, Suite 220
Austin, TX 78731
To Vignette: Vignette Corporation
Attention: Vaughn Bradley
901 S. Mopac Bldg III, Suite 400
Austin, TX 78746
With a copy to:
Vignette Corporation
Attn: Legal Counsel
901 S. Mopac Bldg III, Suite 400
Austin, TX 78746
21. GENERAL
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a. Contractor warrants that Contractor will obtain from Vignette an
Assignment Order prior to commencing any new project, work, or services under
this Agreement.
b. Any obligations and duties that by their nature extend beyond the
expiration or earlier termination of this Agreement shall survive any such
expiration or termination and remain in effect.
c. Contractor will not represent Contractor as an agent or partner of
Vignette and will not commit or obligate Vignette in any way to other parties.
d. Contractor warrants that Contractor will take appropriate action
by instruction or agreement with its personnel to ensure that all Contractor
personnel performing work hereunder shall be bound by and comply with all of
the terms and conditions of this Agreement.
e. Contractor will not assign this Agreement or subcontract to any
third party any portion of the work to be performed under this Agreement without
Vignette's prior written approval. In the event Vignette shall provide such
approval, Contractor shall secure from each such third party its agreement to
comply with the terms and conditions of this Agreement prior to disclosing any
Vignette Confidential Information or performance of work by such third party.
f. Every right or remedy by this Agreement conferred upon or reserved
to the parties shall be cumulative and shall be in addition to every right or
remedy now or hereafter existing at law or in equity, and the pursuit of any
right or remedy shall not be construed as an election.
g. The failure of a party to insist upon the performance of any
provision of this Agreement or an Attachment hereto or to exercise any right or
privilege granted hereunder shall not be construed as waiving any such
provision, and the same shall continue in force.
h. This Agreement, inclusive of all Appendices and Exhibits attached
hereto and made a part hereof, constitutes the entire Agreement between the
parties with respect to the subject matter hereof, and supersedes all prior
understandings, communications, and agreements whether verbal or written. No
amendment to or modification of this Agreement shall be valid or binding unless
in writing and executed by an authorized representative of Vignette and
Contractor. This Agreement and its Appendices shall be binding upon and inure
solely to the benefit of each of the parties hereto and their respective
successors, and no other persons or entities shall be beneficiaries hereunder or
have any rights to enforce any part of this Agreement or any Attachment hereto.
i. If any provision of this Agreement or of any Attachment hereto is
found to be void, the remainder of this Agreement shall survive and remain in
full force and shall not hereby be terminated.
j. Neither party shall be required to give notice to enforce strict
adherence to all provisions of this Agreement. No breach or provision of this
Agreement shall be deemed waived, modified or excused by a party, unless such
waiver, modification or excuse is in writing and signed by a duly authorized
officer of a party. The failure by (or delay of) a party in enforcing (or
exercising) any of its rights under this Agreement shall: (i) not be deemed a
waiver, modification or excuse of such right or of any breach of the same or
different provision of this Agreement, and (ii) not prevent a subsequent
enforcement (or exercise) of such right.
k. Contractor is an independent contractor and nothing in this
Agreement shall be deemed to make Contractor an agent, employee, partner or
joint venturer of Vignette. Contractor shall have no authority to bind, commit,
or otherwise obligate Vignette in any manner whatsoever.
l. During the term of this Agreement and for six months thereafter,
Contractor agrees not to competitively bid against Vignette to sell services
directly to any Client for whom Contractor has performed Services hereunder.
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m. During the term this Agreement is in effect and for a period of six
months thereafter, each party agrees not to solicit or to offer employment to
any employees of the other without the prior written consent of the other party.
n. THIS AGREEMENT WILL BE GOVERNED IN ALL RESPECTS BY THE LAWS OF
THE STATE OF TEXAS, WITHOUT REFERENCE TO ITS CHOICE OF LAW RULES.
IN WITNESS WHEREOF, the persons signing below warrant that they are duly
authorized to sign for and on behalf of, the respective parties. This
Agreement may be executed in duplicate originals, and any executed copy
of this Agreement made by reliable means (E.G., photocopy or facsimile)
shall be considered an original.
AGREED AND ACCEPTED AS ABOVE:
Vignette Corporation Contractor
By: /s/ Robert R. Robinson By: /s/ Bryan Menell
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Robert R. Robinson Bryan Menell
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Name Name
Legal Counsel 12/31/98 President 12/31/98
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Title Date Title Date
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