Exhibit 10.4
▇.▇. ▇▇▇▇▇ & CO.
MASTER AGREEMENT FOR PROFESSIONAL SERVICES
This Agreement is made effective this 13/th/ day of August, 1999, by and between
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NMMC, Inc. d/b/a/ New Mortgage Millenium Corp./Loraca International, Inc.
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(CLIENT) and ▇.▇. ▇▇▇▇▇ & Co. (JAYCO).
ARTICLE 1 - WORK TO BE PERFORMED
During the term of this Agreement, and subject to the conditions herein set
forth, CLIENT may call upon JAYCO to perform specific professional services.
In each instance a separate Statement of Work (SOW) will be prepared, each being
separately subject to the terms and conditions of this Agreement. Said SOW will
define (1) Scope of Work to be performed ("Work"), (2) Proposed Schedule of Work
and (3) Estimated Cost of Work. Such document will be mutually agreed upon by
CLIENT and JAYCO, subject to the terms and conditions of this Agreement, and
will be executed by an authorized representative of each party.
CLIENT agrees to provide work space, computer machine time, security
arrangements, modem and telephone connections, and existing office productivity
software and materials necessary in conjunction with the fulfillment of the
projects defined in each separate SOW, as defined above.
Any terms or conditions of any purchase or work order submitted hereunder which
is contrary to the terms of this Agreement shall be void and of no force and
effect.
ARTICLE 2 - COMPENSATION
2.1 Time and Expense: As full compensation for performance of the Work, CLIENT
shall pay JAYCO a fee on a time and expense basis in accordance with the
hourly labor rates, charges and payment provisions set forth in each
separate SOW. Said hourly labor rates for JAYCO staff are based on the
skill level and background required to perform the proposed Work. Any
overtime authorized by CLIENT will be invoiced at the same hourly rate as
regular time. Reasonable expenses, if agreed to, will be included. Invoices
will include a summary of actual hours worked by JAYCO's employees engaged
directly on the project and the pertinent billing rate. Direct non-salary
expenses such as subcontractors, materials, travel expenses and other
project costs and expenses will be itemized separately on each invoice for
each separate portion of the work.
2.2 Fixed Fee/Lump Sum: As full compensation for performance of the Work,
CLIENT shall pay JAYCO a fixed fee as set forth in each separate document
defining the professional Work to be performed. The fixed fee defined in
the SOW will cover only the specific tasks, expenses, and deliverables
specified in the Scope of Work. Tasks, expenses, and deliverables specified
by the CLIENT that are not included in the Statement of Work will be
provided on a time and expense basis. Invoices will be based on JAYCO's
percentage of completion in accordance with milestones set forth in the SOW
for the fixed-fee project defined in the SOW including an estimation of the
percentage of actual hours worked by JAYCO's employees engaged directly on
the project and the pertinent billing rate. Direct non-salary expenses such
as subcontractors, materials, travel expenses and other project costs and
expenses will be itemized separately on each invoice for each separate SOW.
2.3 Taxes: Any taxes or fees, enacted by local, state or federal government
subsequent to the date of this contract, and based on gross receipts or
revenues will be added to amounts due under this contract, in accordance
with any such fees or taxes.
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MASTER AGREEMENT FOR PROFESSIONAL SERVICES (cont.)
2.4 Payment: Invoices will be submitted monthly and shall be due and payable
within ten (10) days of receipt. Remittance will be mailed to JAYCO at the
address noted on such invoices or as JAYCO may otherwise advise.
2.5 Disputed Amounts: CLIENT may withhold payment of any JAYCO invoice (or part
thereof) that it in good faith disputes are due or owing by providing JAYCO
a written explanation of the basis of the disputed amounts. CLIENT shall,
by the applicable due date, pay any amounts then due that are not disputed.
The parties shall diligently pursue an expedited resolution of the dispute.
If the dispute is not settled within 60 days, then within ten (10) days
after JAYCO's request or such later date upon which any such amount may
become due, CLIENT shall deposit any disputed amount into an interest-
bearing escrow account in a nationally recognized financial institution
reasonably acceptable to JAYCO and shall furnish evidence of such deposit
to JAYCO. Upon the resolution of any disputes as to which CLIENT has
deposited funds into escrow, the funds paid into the escrow account in
respect of such dispute, together with any interest earned thereon and any
expenses of opening and maintaining the escrow account shall be allocated
between the Parties in accordance with the resolution of the dispute.
ARTICLE 3 - INDEPENDENT CONTRACTOR STATUS/LEGAL RELATIONSHIP
The parties intend that JAYCO, in performing Work specified in this Agreement,
shall act as an independent contractor and shall have control of its work and
the manner in which it is performed. JAYCO is not authorized to make any
contract, agreement, warranty or representation on behalf of CLIENT.
JAYCO shall be solely responsible for wages, salaries and other amounts due its
employees or subcontractors under this Agreement and shall be responsible for
all reports and obligations respecting its employees concerning social security,
income tax, unemployment insurance, worker's compensation, and similar matters.
Unless specifically agreed to otherwise, in writing, JAYCO agrees not to use any
work product prepared on behalf of CLIENT for any other individual or entity.
ARTICLE 4 - PROFESSIONAL RESPONSIBILITY
JAYCO shall perform Work consistent with the skill and care ordinarily exercised
by other professional consultants under similar circumstances at the time Work
is performed, subject to any limitations established by CLIENT as to degree of
care, time or expense to be incurred or other limitations of this Agreement. No
other representation, warranty or guaranty, express or implied, is included in
or intended by JAYCO's Work, proposals, agreements or reports.
ARTICLE 5 - LIMITATION OF LIABILITY
Each party, its officers, directors, shareholders, employees, agents, and
representatives, agrees to limit the liability of the other, for all claims or
legal proceedings of any type arising out of or relating to the performance of
Work under this Agreement (including but not limited to JAYCO's breach of the
Agreement, its professional negligence, errors and omissions and other acts) to
the amounts paid under the particular Scope of Work in the course of which the
injury arose. Neither party shall be liable for any indirect, special or
consequential loss or damages arising from this Agreement.
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MASTER AGREEMENT FOR PROFESSIONAL SERVICES (cont.)
ARTICLE 6 - INDEMNIFICATION
Subject to the limitation of liability above, each party agrees to indemnify,
defend and hold harmless the other from any claim, suit, liability, damage,
injury, cost or expense, including attorneys fees, (hereafter collectively
called "Loss") arising out of such party's a) breach of this Agreement or b)
willful misconduct or negligence in connection with the performance of this
Agreement.
ARTICLE 7 - CONFIDENTIALITY
At the request of CLIENT, JAYCO has agreed to execute a separate Confidentiality
Agreement.
ARTICLE 8 - TERM OF AGREEMENT; TERMINATION
This Agreement will be for an initial term commencing on the date hereof, and
ending at the end of the calendar year in which the Agreement was fully
executed, and will thereafter automatically renew for successive periods of one
(1) year each, unless terminated by either party by not less than thirty (30)
days prior written notice to the other party. In the event of termination by the
CLIENT prior to completion of the SOW, CLIENT agrees to pay for all costs for
services performed up to the date of termination.
The obligations of the parties to indemnify and the limitations on liability set
forth in this Agreement shall survive the expiration or termination of this
Agreement.
ARTICLE 9 - TIME OF PERFORMANCE/FORCE MAJEURE
JAYCO shall not be in default of performance under this Agreement where such
performance is prevented, suspended or delayed by any cause beyond JAYCO's
control.
Neither party will hold the other responsible for damages for delays in
performance caused by acts of God or other events beyond the control of the
other party and which could not have been reasonably foreseen or prevented. If
such events occur, it is agreed that both parties will use their best efforts to
overcome all difficulties arising and to resume as soon as reasonably possible
performance of Work under this Agreement. Delays within the scope of this
provision will extend the contract completion date for specified Work
commensurately.
ARTICLE 10 - NO THIRD PARTY BENEFICIARIES
There are no third party beneficiaries of this Agreement, and no third party
shall be entitled to rely upon any work performed or reports prepared by JAYCO
hereunder for any purpose whatsoever.
ARTICLE 11 - DESIGNS AND DISCOVERIES
In the course of providing Work to CLIENT, JAYCO may utilize or develop designs,
ideas, discoveries, inventions, or improvements of these (collectively "Ideas"),
made by the JAYCO Parties. CLIENT agrees that JAYCO's utilization or development
of such Ideas does not grant CLIENT any right in the form or ownership or
license to such Ideas. All Ideas utilized or developed fy JAYCO while providing
CLIENT Work shall be deemed to be property of JAYCO. Notwithstanding the
foregoing all work product prepared by JAYCO on behalf of CLIENT shall belong
exclusively to CLIENT.
ARTICLE 12 - LAWS AND REGULATIONS
Both parties will be entitled to regard all applicable laws, rules, regulations
and orders issued by any federal, state, regional or local regulatory body as
valid and may act in accordance therewith until such time as the same may be
modified or superseded by such regulatory body or invalidated by final judgment
in a court of
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MASTER AGREEMENT FOR PROFESSIONAL SERVICES (cont.)
competent jurisdiction, unless prior to such final judicial determination, the
effectiveness of such law, rule or regulation has been stayed by an appropriate
judicial or administrative body having jurisdiction.
ARTICLE 13 - ATTORNEYS' FEES AND COSTS
The prevailing party in any action to enforce or interpret provisions of this
Agreement shall be entitled to recover all reasonable fees, costs and expenses,
of enforcement or interpretation.
If JAYCO is requested to respond to any mandatory orders for the production of
documents or witnesses on CLIENT's behalf regarding work performed by JAYCO,
CLIENT agrees to pay all costs and expenses incurred by JAYCO not reimbursed by
others in responding to such order, including attorneys fees, staff time at
current billing rates and reproduction expenses.
ARTICLE 14 - GOVERNING LAW
This Agreement shall be subject to, interpreted and enforced according to the
laws of the State of Oregon.
ARTICLE 15 - BREACH OF AGREEMENT
In the event either party perceives a breach of this Agreement by the other,
said party shall immediately notify the other party of the breach and allow
fifteen (15) days in which to remedy or to propose a plan to remedy the
perceived default.
ARTICLE 16 - ARBITRATION
Any controversies or claims arising out of or relating to this Agreement, other
than equitable claims, shall be fully and finally settled by arbitration in
accordance with the Commercial Arbitration Rules of the American Arbitration
Association then in effect (the "AAA Rules"), conducted by one arbitrator either
mutually agreed upon by ▇.▇. ▇▇▇▇▇ & Co. and CLIENT or chosen in accordance with
the AAA Rules, except that the parties thereto shall have any right to discovery
as would be permitted by the Federal Rules of Civil Procedure for the period of
90 days following the commencement of such arbitration and the arbitrator
thereof shall resolve any dispute which arises in connection with such
discovery. The prevailing party shall be entitled to costs, expenses and
reasonable attorney's fees, and judgment upon the award rendered by the
arbitrator may be entered in any court having jurisdiction thereof.
ARTICLE 17 - SEVERABILITY
Any provision of this Agreement held in violation of any law will be deemed
stricken, and all remaining provisions shall continue valid and binding upon the
parties. The parties will attempt in good faith to replace any invalid or
unenforceable provision(s) of this Agreement with provisions which are valid and
enforceable and which come as close as possible to expressing the intention of
the original provisions.
ARTICLE 18 - NON-WAIVER
A failure to exercise or waiver of any right(s) granted to a party under any
clause of this Agreement shall not act to waive any other right(s) granted to
such party under this Agreement, whether under the same or different clauses.
ARTICLE 19 - ASSIGNMENT
This Agreement may not be assigned without the express written consent of each
party, which consent will not be unreasonably withheld.
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MASTER AGREEMENT FOR PROFESSIONAL SERVICES (cont.)
ARTICLE 20 - NOTICES
All notices and other communications pursuant to this Agreement shall be in
writing and shall be deemed to have been duly given if personally delivered or,
if mailed, when mailed by United States certified or registered mail, or by
Federal Express (or comparable overnight mail service), postage prepaid, or sent
via facsimile to the other party at the address or facsimile number set forth
below (or at such other address as shall be given in writing by either party to
the other) with a copy to Client's attorney.
If to JAYCO: If to CLIENT:
▇.▇. ▇▇▇▇▇ & Co., Inc. NMMC, Inc. d/b/a/ New Mortgage Millenium Corp
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇ ▇▇▇ ▇ ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇., ▇.▇., ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
ATTN: ▇▇. ▇▇▇▇▇ ▇. ▇▇▇▇▇ ATTN: ▇▇. ▇▇▇▇▇▇▇ ▇. Guy
President/CEO Chief Executive Officer
fax: 425/▇▇▇-▇▇▇▇ fax: 503/▇▇▇-▇▇▇▇
with a copy to CLIENT's attorney:
Mr. ▇▇▇▇ ▇▇▇
c/o ▇▇▇▇, ▇▇▇▇, ▇▇▇▇ & Freidenrich, LLP
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
fax: 858/▇▇▇-▇▇▇▇
ARTICLE 21 - ENTIRE AGREEMENT
The obligations of the parties to indemnify and the limitations on liability set
forth in this Agreement shall survive the expiration or termination of this
Agreement. This Agreement, consisting of all documents attached hereto, together
with each SOW executed between the parties, constitutes the entire agreement
between the parties, and supersedes any and all prior written or oral agreements
with respect to the subject matter hereof. No amendment hereto will be binding
unless reduced to writing and signed by authorized representatives of each
party.
The parties hereto have read this Agreement and accept all of its terms and
conditions subject to those modifications, if any, which are typed or
handwritten on the Agreement or attached and incorporated herein and which have
been initialed by all contracting parties.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed
by their duly authorized representatives.
NMMC, Inc. d/b/a/ New Mortgage Millenium Corp./ ▇.▇. ▇▇▇▇▇ & CO., INC. (JAYCO)
Loraca International, Inc. (CLIENT)
By_____________________________ By____________________________
▇▇▇▇▇ ▇. ▇▇▇▇▇, Ph.D. ▇▇▇▇▇▇▇ ▇. Guy
Title President Title Chief Executive Officer
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MASTER AGREEMENT FOR PROFESSIONAL SERVICES (cont.)
Date August 13, 1999 Date
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