Fill and Sign the 2011 Introduction and Penalty Relief Internal Revenue Service Form

-1- § 7.35 Form: Year 2000 Services Agreement This AGREEMENT is made and entered into as of the ________ day of ___, 200_ by and between ________, a corporation with offices at, New York, New York ("Consultant") and ________, a ________ corporation with offices at ________ ("Client"). WITNESSETH WHEREAS, Consultant offers consulting services relating to modifying computer software to accommodate Year 2000 modifications and Consultant is willing to provide such consulting services to Client on the terms and subject to the conditions set forth below; and WHEREAS, Client desires to engage Consultant and Consultant desires to be engaged by Client, to provide such consulting services on the terms and subject to the conditions set forth below. NOW, THEREFORE, in consideration of the mutual promises set forth herein, Consultant and Client hereby agree as follows: 1. Consulting Services 1.1 Consultant Services Upon the terms and subject to the conditions of this Agreement, which includes all the Schedules attached hereto, Consultant will provide to Client the services described in Schedule "A" attached hereto (the "Services") and the work product described in the Schedules (the "Work Product"). Client agrees that Consultant is responsible only for providing the Services, and Consultant is not responsible for providing any services or performing any tasks not specifically set forth in Schedule "A" hereto. 1.2 Client Responsibilities Client shall perform the tasks set forth in the Schedule A as "Client Tasks." Client warrants that it has obtained all necessary rights for, and shall provide Consultant with, use of and access to Client's systems necessary for the performance of the Services as well as all necessary, accurate, and reliable information, data, files, documents and other records required by Consultant for the performance of the Services (the "Client Information"). Client further agrees that to the extent its failure to meet its obligations set forth in this Agreement affects the ability of Consultant to perform Consultant's obligations under this Agreement, including, but not limited to, the Services, Consultant shall be relieved of such obligations. -2- 2. Rights In Work Product2.1 License Subject to Sections 2.2 and 2.3, Consultant hereby grants to Client, and Client hereby accepts, a perpetual, non-transferable, non- exclusive license to use the Work Product, including the right to make the Work Product available to third party vendors to use solely for the benefit of Client. In the event that Client has a third party vendor so utilize the Work Product, such third party vendor must be subject to strict confidentiality obligations similar to the provisions of Section 2.3 and must be prohibited from commercially exploiting the Work Product or any portion thereof in any other way. 2.2 Proprietary Rights As used herein, the term "Consultant's Proprietary Materials" shall mean and include all information, data and knowledge furnished or made available by Consultant to Client or used or developed in the performance of Services hereunder and copies thereof, whether in oral, written, graphic, electronic or machine-readable form, including without limitation, software, documentation, designs, plans, specifications, flow charts, techniques, methods, inventions, improvements, other technical data, information, and all trade secrets and other proprietary ideas, concepts, know-how and methodologies. Client acknowledges that Consultant may use Consultant's Proprietary Materials in the performance of the Services and in developing the Work Product, and that the Work Product may contain Consultant's Proprietary Materials or information incorporating, based upon, or derived from Consultant's Proprietary Materials. Consultant shall retain all title to Consultant's Proprietary Materials and the Work Product, including all copies thereof and all rights to patents, copyrights, trademarks, trade secrets and other intellectual property rights inherent therein and appurtenant thereto. Except as provided in Section 2.1 herein, Client shall not, by virtue of this Agreement or otherwise, acquire any proprietary rights whatsoever in Consultant's Proprietary Materials, the Work Product or any other deliverables developed hereunder, which shall be the sole and exclusive property and confidential information of Consultant. No identifying marks, copyright or proprietary right notices may be deleted from any copy of Consultant's Proprietary Materials or the Work Product provided to Client. Notwithstanding the foregoing, in the event that the Work Product contains Client Information, Client shall retain all title to such Client Information, including all copies thereof and all rights to patents, copyrights, trademarks, trade secrets and other intellectual property rights inherent in such Client Information. Consultant shall not, by virtue of this Agreement or otherwise, acquire any proprietary -3- rights whatsoever in the Client Information, which shall be the sole and exclusive property of Client. Nothing contained herein shall be construed so as to affect the rights of Consultant, its agents or subcontractors to use Consultant's Proprietary Materials for its internal and professional needs including performing identical or similar services for third parties even if Consultant's Proprietary Materials have been incorporated into the Work Product or modified or developed in the course of providing the Services hereunder.2.3 Confidentiality The parties acknowledge that in the course of performing their responsibilities under this Agreement, they each may be exposed to or acquire information that is proprietary to or confidential to the other party. The parties agree to hold such information in strictest confidence and not to copy, reproduce, sell, assign, license, market, transfer, give or otherwise disclose such information to third parties or to use such information for any purposes whatsoever, without the express written permission of the other party, other than for the performance of obligations hereunder or as otherwise agreed to herein, and to advise each of their employees, agents and representatives of their obligations to keep such information confidential. All such confidential and proprietary information described herein (including, but not limited to, business plans and data relating to each party, Consultant's Proprietary Materials, or confidential portions of Client Information and any deliverable provided hereunder, in whatever form, including, but not limited to, the Work Product) are hereinafter collectively referred to as "Confidential Information". The parties shall use reasonable efforts to assist each other in identifying and preventing any unauthorized use or disclosure of any Confidential Information. Without limitation of the foregoing, the parties shall use reasonable efforts to advise each other immediately in the event that either learns or has reason to believe that any person who has had access to Confidential Information has violated or intends to violate the terms of this Agreement, and will reasonably cooperate in seeking injunctive relief against any such person. 2.4 Non-Confidential Information Notwithstanding the obligations set forth in Section 2.3, the confidentiality obligations of the parties shall not extend to information that: (i) is, as of the time of its disclosure or thereafter becomes, part of the public domain through a source other than the receiving party; (ii) was rightfully known to the receiving party as of the time of its disclosure; (iii) is independently developed by the receiving party; (iv) is subsequently learned from a third party not -4- under a confidentiality obligation to the providing party, or (v) is required to be disclosed pursuant to a duly authorized subpoena, court order, or government authority, whereupon the disclosing party shall provide prompt written notice to the other party prior to such disclosure, so that such party may seek a protective order or other appropriate remedy. In the event that a protective order or other appropriate remedy is not obtained, the disclosing party agrees to disclose only that portion of the Confidential Information which is required.3. Payments To Consultant3.1. Charges For the Services provided hereunder, Client shall pay to Consultant the charges set forth in Schedule B. Fee and Payment Schedule, attached hereto. 3.2 Out-of-Pocket Expenses Client will pay, or reimburse Consultant for any out-of-pocket expenses, including, without limitation, travel and travel-related expenses, incurred by Consultant at the request of or with the approval of Client in connection with the performance of this Agreement. 3.3 Taxes Client will pay, or reimburse Consultant for all sales, use, transfer, privilege, excise or other taxes and all duties, whether international, national, state or local, however designated, which are levied or imposed by reason of the transactions contemplated hereby; excluding, however, income taxes on profits which may be levied against Consultant. 3.4 Time of Payment Client shall pay Consultant in accordance with the Fee and Payment Schedule set forth in Schedule B. Any sum due Consultant hereunder for which a time for payment is not otherwise specified will be due and payable within thirty (30) days after the due date of an invoice therefor from Consultant. If Client fails to pay any amount due within thirty (30) days from the date of the invoice, late charges of the lesser of _____ percent (____%) per month or the maximum allowable under applicable law shall also become payable by Client to Consultant. In addition, failure of Client to fully pay any invoiced amount within sixty (60) days after the date of the invoice shall be deemed a material breach of this Agreement, justifying suspension of the performance of the Services, and shall be sufficient cause for -5- immediate termination of this Agreement by Consultant. If Client fails to pay, when due, any amount payable hereunder or fails to fully perform its obligations hereunder, Client agrees to pay, in addition to any amount past due, plus interest accrued thereon, all reasonable expenses incurred by Consultant in enforcing this Agreement, including, but not limited to, all expenses and costs of any legal proceeding related thereto and all reasonable attorneys' fees incurred in connection therewith. No failure by Consultant to request any such payment or to demand any such performance shall be deemed a waiver by Consultant of Client's obligations hereunder or a waiver of Consultant's right to terminate this Agreement.4. Disclaimer Of Warranties And Limitation Of Liability 4.1 Disclaimer of Warranty Client acknowledges that the Services are subject to a number of factors beyond the control of Consultant, such as the age, complexity and uniqueness of the Client systems for which the Services are to be performed ("Client Systems") and the interaction of the Client Systems with third party software. The Client Systems may be undocumented, in part or in whole, contain undocumented modifications or contain undocumented interaction with third party software. Therefore Consultant does not warrant that the Services will identify, isolate or resolve any or all potential Year 2000 problems with the Client Systems. CLIENT ACKNOWLEDGES THAT THE SERVICES ARE PROVIDED "AS IS" WITHOUT WARRANTY OF ANY KIND AS TO PERFORMANCE OR RESULT OR OTHERWISE, AND CONSULTANT EXPRESSLY DISCLAIMS, AND CLIENT HEREBY EXPRESSLY WAIVES, ALL EXPRESS WARRANTIES AND ALL WARRANTIES, DUTIES, AND OBLIGATIONS IMPLIED IN LAW, INCLUDING WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. 4.2 Limitation of Liability CONSULTANT SHALL HAVE NO LIABILITY WITH RESPECT TO ITS OBLIGATIONS UNDER THIS AGREEMENT OR OTHERWISE FOR CONSEQUENTIAL, EXEMPLARY, SPECIAL, INDIRECT, INCIDENTAL OR PUNITIVE DAMAGES EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN ANY EVENT, THE LIABILITY OF CONSULTANT TO CLIENT FOR ANY REASON AND UPON ANY CAUSE OF ACTION OR CLAIM IN CONTRACT, TORT OR OTHERWISE WITH RESPECT TO THE SERVICES SHALL BE LIMITED TO THE AMOUNT PAID TO CONSULTANT BY -6- CLIENT HEREUNDER FOR SUCH SERVICES. THIS LIMITATION APPLIES TO ALL CAUSES OF ACTION OR CLAIMS IN THE AGGREGATE, INCLUDING WITHOUT LIMITATION, BREACH OF CONTRACT, BREACH OF WARRANTY, NEGLIGENCE, STRICT LIABILITY, MISREPRESENTATION, CLAIMS FOR FAILURE TO EXERCISE DUE CARE IN THE PERFORMANCE OF SERVICES HEREUNDER AND OTHER TORTS. FURTHER, NO CAUSE OF ACTION WHICH ACCRUED MORE THAN __ (__) YEARS PRIOR TO THE FILING OF A SUIT ALLEGING SUCH CAUSE OF ACTION MAY BE ASSERTED AGAINST CONSULTANT. BOTH PARTIES UNDERSTAND AND AGREE THAT THE LIMITATIONS AND EXCLUSIONS SET FORTH HEREIN REPRESENT THE PARTIES AGREEMENT AS TO THE ALLOCATION OF RISK BETWEEN THE PARTIES IN CONNECTION WITH CONSULTANT'S OBLIGATIONS UNDER THIS AGREEMENT. THE FEES PAYABLE TO CONSULTANT HEREUNDER REFLECT, AND ARE SET IN RELIANCE UPON, THE ALLOCATION OF RISK SET FORTH HEREIN AND THE EXCLUSION OF CONSEQUENTIAL DAMAGES AND LIMITATIONS OF LIABILITY SET FORTH IN THIS AGREEMENT.4.3 Intellectual Property Rights Indemnity Consultant and Client each agrees to indemnify, defend and hold the other harmless from any and all claims, actions, damages, liabilities, costs and expenses, including reasonable attorneys' fees, costs and expenses, arising out of any third party claims of infringement of any United States patents, trade secrets, copyrights, trademarks, service marks, trade names or similar proprietary rights alleged to have occurred related to property provided (including access to or use of Client Information or Client Systems provided to Consultant by Client), or work performed, by the indemnitor. 4.4 Indemnification Procedures For purposes of this Section 4, the term Consultant shall include Consultant, its subsidiaries, directors, affiliates or assignees and their officers, employees and agents. The indemnities set forth in Section 4.3 hereof will not apply to the extent the party claiming the indemnification was responsible for giving rise to the matter upon which the claim for indemnification is based and will not apply unless the party claiming indemnification promptly notifies the other of any matters in respect of which the indemnity may apply and of which the notifying party has knowledge and gives the other full opportunity to -7- control the response thereto and the defense thereof, including without limitation any agreement relating to the settlement thereof. The indemnified party's failure to promptly give notice shall affect the indemnifying party's obligation to indemnify the indemnified party only to the extent the indemnifying party's rights are materially prejudiced by such failure. The indemnified party may participate, at its own expense, in such defense and in any settlement discussions directly or through counsel of its choice.5. Term and Termination5.1 Term This Agreement shall be effective when signed by both parties and thereafter shall remain in effect until completion of the Services or termination of this Agreement. 5.2 Termination ( i) Termination for Cause. In the event that either party hereto materially or repeatedly defaults in the performance of any of its material obligations set forth in this Agreement and the Schedules hereto (except for a default in payments to Consultant) and does not substantially cure such default within thirty (30) days after being given written notice specifying the default, or, with respect to those defaults which cannot reasonably be cured within thirty (30) days, if the defaulting party fails to proceed promptly after being given such notice to commence curing the default and thereafter to proceed to cure the same, then the party not in default may, by giving written notice thereof to the defaulting party, terminate this Agreement as of a date specified in such notice of termination. (ii ) Termination for Nonpayment. In the event that Client defaults in the payment when due of any amount due to Consultant hereunder and does not cure such default within fifteen (15) days of the date of the invoice, then Consultant may, by giving written notice thereof to Client, terminate this Agreement as of a date specified in such notice of termination. (iii ) Termination for Insolvency. In the event that either party hereto becomes or is declared insolvent or bankrupt, is the subject of any proceedings relating to its liquidation, insolvency or for the appointment of a receiver or similar officer for it, makes an assignment for the benefit of all or substantially all of its creditors, or enters into an agreement for the composition, extension, or readjustment of all or substantially all of its obligations, then the other party hereto may, by giving written notice thereof to such party, terminate this Agreement as of a date specified in such notice of termination. -8- 6. Miscellaneous 6.1 Client Identification Client agrees that Consultant may use the name of and identify Client as a client, in advertising, publicity, or similar materials distributed to prospective clients of Consultant. 6.2 Cooperation The parties acknowledge and agree that successful completion of the Services shall require the full and mutual good faith cooperation of each party. 6.3 Hiring of Employees Without the prior written consent of Consultant, the Client agrees not to solicit or make offers of employment, in any capacity, either directly or indirectly, to, or enter into consulting relationships with, the employees of Consultant during the term of this Agreement and for a period of one (1) year from the termination or expiration of this Agreement. 6.4 Independent Contractor It is expressly agreed that Consultant and any and all Consultant personnel, in performance of this Agreement, are acting as independent contractors and not employees or agents of Client. 6.5 Entire Agreement This Agreement, including any Schedules referred to herein and attached hereto, each of which is incorporated herein for all purposes, constitutes the complete and exclusive statement of the terms and conditions between the parties, which supersedes and merges all prior proposals, understandings and all other agreements, oral and written, between the parties relating to the subject matter hereof. This Agreement may not be modified or altered except by written instrument duly executed by both parties. 6.6 Force Majeure Neither party shall be liable to the other for any delay or failure to perform any of the services or obligations set forth in this Agreement due to causes beyond its reasonable control. Performance times shall be considered extended for a period of time equivalent to the time lost because of such delay. Without limiting the foregoing, Consultant's time of performance shall be enlarged, if and to the extent reasonably necessary, in the event that: (a) Client fails to provide (i) Client -9- Information or use of or access to Client Systems as requested by Consultant on a timely basis or (ii) any performance called for by this Agreement, and the same is necessary for Consultant's performance hereunder; or (b) special requests by Client impact Consultant's normal schedule. Consultant will notify Client of the estimated impact on its performance schedule, if any.6.7 New York Law This Agreement and performance hereunder shall be construed in accordance with the laws of the State of New York (without giving effect to its conflicts of laws principles). Consultant and Client hereby agree on behalf of themselves and any person claiming by or through them that the sole jurisdiction and venue for any litigation arising from or relating to this Agreement shall be an appropriate federal or state court located in New York, New York. 6.8 Assignment Client shall not assign, without the prior written consent of Consultant, its rights, duties or obligations under this Agreement to any person or entity, in whole or in part, whether by assignment, merger, transfer of assets, sale of stock, operation of law or otherwise, and any attempt to do so shall be deemed a material breach of this Agreement. This Agreement shall apply to, inure to the benefit of, and be binding upon the parties hereto and upon their permitted successors in interest and permitted assigns. 6.9 Notices Any notice provided pursuant to this Agreement, if specified to be in writing, shall be in writing and shall be deemed given (i) if by hand delivery, upon receipt hereof, (ii) if mailed, three (3) days after deposit in the U.S. mails, postage prepaid, certified mail return receipt requested. All notices shall be addressed to the parties at the respective addresses indicated herein or such other address as either party may in the future specify in writing to the other. 6.10 No Waiver The waiver or failure of either party to exercise any right in any respect provided for herein shall not be deemed a waiver of any further right hereunder. 6.11 Severability Except as otherwise specified herein, the invalidity or unenforceability of any term or terms of this Agreement shall not -10- invalidate, make unenforceable or otherwise affect any other term of this Agreement which shall remain in full force and effect.6.12 Services for Others Client understands and agrees that Consultant may perform similar services for third parties using Consultant's Proprietary Materials and/or using the same personnel, subject to Consultant's confidentiality obligations hereunder, that Consultant may utilize for rendering services for Client hereunder. 6.13 Approvals and Similar Actions Where agreement, approval, acceptance, consent or similar action by either party hereto is required by any provision of this Agreement, such action shall not be unreasonably delayed or withheld. 6.14 Survival All provisions of this Agreement relating to confidentiality, nondisclosure, limitation of liability, indemnification, non-solicitation and Client's obligations to pay Consultant for services rendered and expenses incurred, shall survive the completion of the Services or any termination of this Agreement. 6.15 Headings The headings contained in this Agreement are for purposes of convenience only and shall not affect the meaning or interpretation of this Agreement. IN WITNESS WHEREOF, the parties have caused this agreement to be executed by their duly authorized representatives as of the date first written above. CLIENT CONSULTANT By:_______________________ By:_____________________ (Signature) (Signature) Name:_____________________ Name:___________________ Title:______________________ Title:____________________ Date:______________________ Date:____________________