EXHIBIT 10.24
CONSULTING SERVICES AGREEMENT
This Agreement ("Agreement") is effective as of June 5, 2000 by and between
▇▇▇▇▇▇▇▇ Consulting LLP, an Illinois general partnership registered as a limited
liability partnership with an office at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇., ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇
("▇▇▇▇▇▇▇▇ Consulting") and Del Monte Corporation, a New York corporation with
an office at ▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ("Client").
WHEREAS, Client desires to obtain certain services from ▇▇▇▇▇▇▇▇ Consulting from
time to time;
WHEREAS, ▇▇▇▇▇▇▇▇ Consulting desires to provide such services to Client on the
terms let forth below; and
WHEREAS, ▇▇▇▇▇▇▇▇ Consulting and Client are simultaneously with this Agreement
entering into an Arrangement Letter, dated as of June 14, 2000, ("June 14
Arrangement Letter") further defining the relationship between them relating to
Client's business capabilities improvement project, a copy of which is attached
as an Appendix to this Agreement.
FOR AND IN CONSIDERATION OF the premises and mutual agreements herein, ▇▇▇▇▇▇▇▇
Consulting and Client agree as follows:
1. SERVICES.
1.1 ▇▇▇▇▇▇▇▇ Consulting shall perform for Client the consulting services (the
"Services") specified in one or more Appendices to this Agreement signed by both
parties, each of which will be attached hereto and made a part hereof. In the
event of a conflict between any term of this Agreement and an Appendix, the
terms of the Appendix shall prevail.
1.2 Unless otherwise specified in an Appendix, changes to the scope of the
Services shall be made only in a writing executed by authorized representatives
of both parties. ▇▇▇▇▇▇▇▇ Consulting shall have no obligation to commence work
in connection with any change until the fee and/or schedule impact of the change
is agreed upon by the parties in writing.
1.3 If any Appendix requires the provision of third party products, including
hardware and software, ▇▇▇▇▇▇▇▇ Consulting's affiliated entity, Proquire LLC,
may, at Client's request and approval, provide such products subject to mutually
agreeable terms and conditions to be set forth on an attachment to the
applicable Appendix. ▇▇▇▇▇▇▇▇ Consulting, as agent for Proquire, may invoice,
collect, and receive from Client all sums that are or become due to Proquire,
including taxes and shipping charges, as applicable.
1.4 Subject to Section 3 of this Agreement, ▇▇▇▇▇▇▇▇ Consulting will use
commercially reasonable efforts to perform the Services according to our
estimates and time schedules.
2. PAYMENT FOR SERVICES AND EXPENSES.
2.1 Client shall pay ▇▇▇▇▇▇▇▇ Consulting for the Services on the terms defined
in the applicable Appendix.
2.2 Client shall pay the amounts payable to ▇▇▇▇▇▇▇▇ Consulting hereunder
subject to the payment timeframe as outlined in the applicable Appendix. If not
specifically defined in an Appendix, the following payment terms will apply:
▇▇▇▇▇▇▇▇ Consulting will invoice Client for professional fees to be performed in
a given month in advance of that month. Any required adjustments to actual will
be made in subsequent invoice(s). Expenses will be invoiced per actual expenses
incurred. Payment terms will follow Client's standard terms of Net 45 days.
Should any invoice remain unpaid for more than sixty days, interest shall be
paid at a rate of 1.5 percent per month or the highest rate allowed by law. In
the event of any good faith dispute with regard to a portion of an invoice, the
undisputed portion shall be paid as provided herein. Upon resolution of the
disputed portion, any amounts owed to ▇▇▇▇▇▇▇▇ Consulting shall be paid within
thirty (30) days of the resolution of the dispute.
2.3 Unless provided otherwise in an Appendix, ▇▇▇▇▇▇▇▇ Consulting shall be
reimbursed by Client for all reasonable expenses incurred by ▇▇▇▇▇▇▇▇ Consulting
in the performance of the Services, including, but not necessarily limited to,
travel and lodging expenses, communications charges and supplies, provided,
however, that total charges for other than travel (including airfare, taxi or
other transportation, parking, per-diems and mileage reimbursements) and lodging
expenses costing greater than $1000 per month shall not be reimbursed unless
Client approved such charges in writing before they were incurred. In addition,
Client shall approve in writing, in advance, the travel and lodging expense
estimated for the Project. ▇▇▇▇▇▇▇▇ Consulting shall use commercially reasonable
efforts to manage to the approved estimate and shall advise Client promptly of
potential material deviations, and the parties will mutually determine the
appropriate action to be taken regarding any material deviations.
2.4 Client shall pay for all taxes, including any interest and penalties from
any related deficiency, in connection with this Agreement including any sales,
use, excise, value-added, services, consumption and other taxes and duties
(except taxes based on or measured by ▇▇▇▇▇▇▇▇ Consulting's net income or
associated with ▇▇▇▇▇▇▇▇ Consulting's employment of personnel, including payroll
and FICA taxes and Social Security and Medicare assessments) assessed on the
provision of Services by ▇▇▇▇▇▇▇▇ Consulting to Client or on ▇▇▇▇▇▇▇▇
Consulting's charges to Client under this Agreement.
3. CLIENT RESPONSIBILITIES.
3.1 In connection with ▇▇▇▇▇▇▇▇ Consulting's provision of the Services, Client
and its other third-party contractors shall provide the professional resources
identified, perform those tasks and fulfill those responsibilities specified in
the applicable Appendix ("Client Responsibilities"). In addition, the June 14,
2000 Arrangement Letter contains, and subsequent Appendices may also contain,
certain business and other estimating assumptions related to the Services.
Client
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understands that ▇▇▇▇▇▇▇▇ Consulting's performance is partially dependent on
Client's timely and effective delivery of Client Responsibilities hereunder and
timely decisions and approvals by Client. Client recognizes that timely approval
of deliverables is fundamental towards meeting any applicable project
timeframes, budgets and milestones and shall not unreasonably withhold
acceptance of a deliverable. Except to the extent an Appendix contains specific
acceptance provisions, all work product provided to the Client for approval
shall be deemed accepted if within thirty (30) days after delivery, Client has
not provided to ▇▇▇▇▇▇▇▇ Consulting written notice identifying specifically any
basis for not approving the work product. Following receipt of notification of
non-acceptance by Client, ▇▇▇▇▇▇▇▇ Consulting shall correct promptly the work
product identified by Client in such notice of nonacceptance and shall resubmit
the work product for acceptance by the Client. Failure by the Client to provide
written notice of non-acceptance within ten (10) days after delivery shall
constitute acceptance by the Client. ▇▇▇▇▇▇▇▇ Consulting shall be entitled to
rely on all decisions and approvals of the Client in connection with the
Services. Changes in decisions and approvals are subject to Section 1.2.
3.2 In addition to any particular items specified in the Appendix, Client shall
supply on-site ▇▇▇▇▇▇▇▇ Consulting personnel with suitable office space, desks,
storage, furniture, and other normal office equipment support, adequate computer
resources (including necessary third party rights to use software), telephone
and facsimile service, postage, copying, secretarial support, word processing,
and general office supplies which may be necessary in connection with ▇▇▇▇▇▇▇▇
Consulting's performance of the Services.
3.3 Neither party shall use the name of the other party outside the other's
organization in connection with its use of the Deliverables or otherwise without
the other party's express written consent, which may be withheld in the sole
discretion of each party.
3.4 Each party shall retain responsibility for its compliance with all
applicable federal, state and local laws and regulations.
4. WORK PRODUCT.
4.1 Upon final payment, Client shall have a perpetual, irrevocable,
nontransferable, non-exclusive, worldwide paid-up right and license to use,
copy, reproduce, distribute (subject to section 4.3), modify and prepare
derivative works of the deliverables originally developed in the course of the
Services, whether developed individually by ▇▇▇▇▇▇▇▇ Consulting or jointly with
Client ("Deliverables"). Client's rights in the Deliverables shall be for any of
Client's internal business related purposes and, to the extent any Deliverable
contains ▇▇▇▇▇▇▇▇ Consulting Confidential Information, shall be subject to
Section 6 below. All other intellectual property rights in the Deliverables
remain in and/or are assigned to ▇▇▇▇▇▇▇▇ Consulting, excluding, however, (i)
any third party intellectual property rights (including, but not limited to,
products, materials and methodologies) in the Deliverables which are proprietary
to third party vendors and which Client lacks the requisite power to grant,
convey or assign ownership (including, but not limited to, intellectual property
rights in the Deliverables owned by i2 Technologies, Inc., ▇.▇. ▇▇▇▇▇▇▇ or
Electronic Data Systems ("EDS")) and (ii) any pre-existing works of authorship
and inventions of Client, and any enhancements or modifications to such
developed in the course of the performance of this Agreement ("Client
Proprietary Items"). ▇▇▇▇▇▇▇▇ Consulting hereby
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expressly grants, assigns and conveys to Client all of ▇▇▇▇▇▇▇▇ Consulting's
right, title and interest, if any, in the Client Proprietary Items. The parties
will cooperate with each other and execute such other documents as may be
reasonably deemed necessary to achieve the objectives of this Section.
4.2 In no event shall ▇▇▇▇▇▇▇▇ Consulting be precluded from developing for
itself, or for others, materials which are competitive with the Deliverables,
irrespective of their similarity to the Deliverables. In addition, each party
shall be free to use its general knowledge, skills and experience, and any
ideas, concepts, know-how, and techniques that are used or developed in the
course of providing the Services.
4.3 ▇▇▇▇▇▇▇▇ Consulting agrees that Client may allow its customers, vendors,
agents, outsourcing providers or other entities in a similar relationship to
Client to access the Deliverables, subject to the provisions of Section 4.1,
Section 5 and Section 6 herein.
5. PROPRIETARY ITEMS.
In the course of performance hereunder, ▇▇▇▇▇▇▇▇ Consulting may use products,
materials, tools and methodologies that are proprietary to ▇▇▇▇▇▇▇▇ Consulting
or to third parties (collectively "Proprietary Items"). As between Client and
▇▇▇▇▇▇▇▇ Consulting, Proprietary Items will be deemed Confidential Information
of ▇▇▇▇▇▇▇▇ Consulting for purposes of Section 6. Included among the Proprietary
Items of ▇▇▇▇▇▇▇▇ Consulting are tools that ▇▇▇▇▇▇▇▇ Consulting identifies as
Solution Construction Aids ("SCAs"), which ▇▇▇▇▇▇▇▇ Consulting makes available
to clients under separate licensing terms. Client shall have or obtain no rights
in such Proprietary Items (or in any modifications or enhancements to them)
other than (i) to use them as authorized by ▇▇▇▇▇▇▇▇ Consulting in writing from
time to time solely for purposes of performing Client Responsibilities, (ii) to
the extent the Proprietary Items are incorporated into a Deliverable, to use
them as part of the Deliverable for purposes of Client's internal business only,
or (iii) pursuant to ▇▇▇▇▇▇▇▇ Consulting's standard license for such Proprietary
Items or, in the case of Proprietary Items owned by third parties, pursuant to
terms acceptable to the applicable third party. If Proprietary Items are made
available to Client under (i) or (ii) above, they will be made available in an
"AS IS" condition without express or implied warranties of any kind; those
Proprietary Items made available under (iii) above shall be subject only to
applicable terms of the applicable license.
6. CONFIDENTIAL INFORMATION.
During the course of ▇▇▇▇▇▇▇▇ Consulting performing Services for Client, each
party shall protect confidential information of the parties in accordance with
the provisions of the Confidentiality Agreement, dated as of September 27, 1999,
between ▇▇▇▇▇▇▇▇ Consulting and Client.
7. WARRANTY.
7.1 ▇▇▇▇▇▇▇▇ Consulting warrants that its Services will be performed in a good
and workmanlike manner, by qualified personnel, in accordance with the
specifications set forth in
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an applicable Appendix to this Agreement. ▇▇▇▇▇▇▇▇ Consulting agrees to
reperform, at no additional cost to client, any work not in compliance with this
warranty brought to its attention within a reasonable time (or such specific
period, if any, provided in the Appendix) after that work is performed.
7.2 ▇▇▇▇▇▇▇▇ Consulting warrants that it will use its commercially reasonable
efforts to complete the Services so as to meet the time frames and milestone
dates, within the budget contained in the Appendix to this Agreement, subject to
conditions within ▇▇▇▇▇▇▇▇ Consulting's reasonable control.
7.3 THE PRECEDING IS ▇▇▇▇▇▇▇▇ CONSULTING'S ONLY WARRANTY CONCERNING THE
SERVICES, ANY DELIVERABLES AND ANY WORK PRODUCT, AND IS MADE EXPRESSLY IN LIEU
OF ALL OTHER WARRANTIES AND REPRESENTATIONS, EXPRESS OR IMPLIED, INCLUDING ANY
IMPLIED WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY OR
OTHERWISE.
8. INDEMNIFICATION.
8.1 Each party shall indemnify, defend and hold harmless the other, its
employees, principals (partners, shareholders or holders of an ownership
interest, as the case may be) and agents, from and against any third party
claims, demands, loss, damage or expense (including reasonable attorneys' fees)
relating to bodily injury or death of any person or damage to real and/or
tangible personal property directly caused by the negligent acts, omissions or
willful misconduct of the indemnifying party, its personnel or agents in
connection with the performance of the Services hereunder.
8.2 Subject to the notification provisions contained in Section 8.4 below,
▇▇▇▇▇▇▇▇ Consulting will indemnify, defend and hold harmless the Client, its
employees, and principals (partners, shareholders or holders of an ownership
interest, as the case may be) from and against any third party claim, demand,
loss, damage or expense (including reasonable attorneys' fees) relating to any
claim that any Deliverable or the services provided or performed by ▇▇▇▇▇▇▇▇
Consulting infringe any United States patent existing at the time of the
applicable Deliverable, copyright, trademark or trade name or other intellectual
property right of the third party. ▇▇▇▇▇▇▇▇ Consulting will not indemnify
Client, its employees, and principals, however, if the claim of infringement is
caused by (1) Client's misuse or modification of the Deliverable (not including
those uses or modifications of the Deliverable authorized, approved or
participated in by ▇▇▇▇▇▇▇▇ Consulting); (2) Client's failure to use corrections
or enhancements made available to Client by ▇▇▇▇▇▇▇▇ Consulting; (3) Client's
use of the Deliverable in combination with any product or information not owned,
developed or authorized by ▇▇▇▇▇▇▇▇ Consulting; (4) Client's distribution,
marketing or use for the benefit of third parties of the Deliverable; (5)
Client's use of the Deliverable in a manner not permitted hereunder; (6)
information, direction, specification or materials provided by Client; or (7)
information provided by any third party where ▇▇▇▇▇▇▇▇ Consulting had no
knowledge that such information provided by the third party potentially
infringed any copyright or trade secret of a third party. If any Deliverable is,
or in ▇▇▇▇▇▇▇▇ Consulting's opinion is likely to be, held to be infringing,
▇▇▇▇▇▇▇▇ Consulting shall at its expense and option either (a) procure the right
for Client to continue using it, (b) replace it with a
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noninfringing equivalent, (c) modify it to make it noninfringing while yielding
equivalent performance results or (d) direct the return of the Deliverable and
refund to Client the fees paid for such Deliverable less a reasonable amount for
Client's use of the Deliverable up to the time of return. The foregoing remedies
constitute Client's sole and exclusive remedies and ▇▇▇▇▇▇▇▇ Consulting's entire
liability with respect to infringement.
8.3 To receive the foregoing indemnities, the party seeking indemnification (the
"Indemnified Party") must promptly notify the other in writing of a claim or
suit once such claim or suit becomes known to the Indemnified Party and provide
reasonable cooperation (at the indemnifying party's expense) and full authority
to defend or settle the claim or suit. Notwithstanding the preceding sentence,
the failure by either party to promptly deliver notice of any claim or notice
shall not be deemed a waiver of the Indemnified Party's right to indemnification
hereunder. The indemnifying party shall have no obligation to indemnify the
Indemnified Party under any settlement made without the indemnifying party's
written consent.
8.4 Each party will determine the types and amounts of insurance coverage it
requires in connection with this Agreement. Neither party is required to obtain
insurance for the benefit of the other party. Each party shall pay all costs and
receive all benefits under policies arranged by it. Each party waives rights of
subrogation it may otherwise have regarding the other party's insurance
policies, including but not limited to property insurance, business interruption
insurance, and other first-party insurance.
9. EMPLOYEES.
9.1 Except as otherwise set forth in an Appendix, ▇▇▇▇▇▇▇▇ Consulting reserves
the right to determine which of its personnel shall be assigned to perform
Services, and to replace or reassign such personnel during the term hereof;
provided, however, that it will, subject to scheduling and staffing
considerations, attempt to honor Client's request for specific individuals. If
Client reasonably objects to any ▇▇▇▇▇▇▇▇ Consulting personnel, Client and
▇▇▇▇▇▇▇▇ Consulting agree to discuss appropriate action to be taken. ▇▇▇▇▇▇▇▇
Consulting has the sole right and obligation to supervise, manage, contract,
direct, procure, perform or cause to be performed all work to be performed by
personnel of ▇▇▇▇▇▇▇▇ Consulting, except as otherwise provided in this Agreement
or an applicable Appendix, and under no circumstances are such personnel to be
considered employees or agents of Client. ▇▇▇▇▇▇▇▇ Consulting shall pay all
wages, salaries and other amounts due its personnel relative to this Agreement
and shall be responsible for all obligations respecting them relating to income
tax withholdings, unemployment insurance premiums and pension plan
contributions.
9.2 Client may request at any time the removal of any ▇▇▇▇▇▇▇▇ Consulting
personnel assigned to a project covered by this Agreement if Client
(i) reasonably believes that such personnel is not qualified to perform services
required by this Agreement or does not meet appropriate professional standards
and (ii) previously provided ▇▇▇▇▇▇▇▇ Consulting with written notice of the
problem and a reasonable opportunity to remedy the situation, considering the
gravity and nature of the problem. ▇▇▇▇▇▇▇▇ Consulting will utilize commercially
reasonable efforts to accommodate the Client request. Replacement personnel, if
any, must have sufficient qualifications.
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9.3 ▇▇▇▇▇▇▇▇ Consulting will comply with all reasonable workplace standards and
policies provided to ▇▇▇▇▇▇▇▇ Consulting in advance, in writing by Client,
applicable to Client's employees, while ▇▇▇▇▇▇▇▇ Consulting personnel are
physically located at Client's premises.
9.4 Except as the other party expressly authorizes in writing in advance,
neither party shall solicit for employment, directly or indirectly, any of the
other party's Personnel during their participation in the Services or during
the twelve (12) months thereafter. For purposes of this Section 9.4, "Personnel"
includes partners or employees of each party who are involved in the performance
of either party's obligations under this Agreement. However, either party shall
have the night to hire any partner or employee employed by the other party who,
without other solicitation, responds to any employment advertising in
newspapers, trade publications or other public commercial media or any
unsolicited walk-in candidates not related to the Project.
9.5 Neither party shall be deemed a joint employer of the other's employees,
each party being responsible for any and all claims by its employees, subject to
Section 8.1. Neither party's employees shall be deemed "leased" employees of the
other for any purpose.
10. INDEPENDENT CONTRACTOR.
In connection with this Agreement, each party is an independent contractor and
as such will not have any authority to bind or cost the other. Nothing herein
shall be deemed or construed to create a joint venture, partnership, fiduciary
or agency relationship between the parties for any purpose.
11. LIMITATION OF LIABILITY.
11.1 Except for the indemnity obligations set forth in Section 8 above, the
limit of each party's liability hereunder (whether in contract, tort,
negligence, strict liability in tort or by statute or otherwise) to the other
concerning performance or non-performance, or in any manner related to this
Agreement, for any and all claims, shall not in the aggregate exceed: (i) with
respect to ▇▇▇▇▇▇▇▇ Consulting's limitation of liability, the total fees and
expenses payable to ▇▇▇▇▇▇▇▇ Consulting by Client; and (ii) with respect to
Client's limitation of liability, the total fees and expenses payable to
▇▇▇▇▇▇▇▇ Consulting by Client hereunder with respect to the work involved under
the applicable Appendix. Client's exclusive remedy for any claim arising out of
these arrangements shall be for ▇▇▇▇▇▇▇▇ Consulting, upon receipt of written
notice pursuant to Section 12.2, to use commercially reasonable efforts to cure
the breach at its expense, and failing that, the return of fees paid to ▇▇▇▇▇▇▇▇
Consulting for the work related to the breach.
11.2 In no event shall either party be liable to the other for consequential,
incidental or punitive loss, damage or expenses (including but not limited to
business interruption, lost profits, or lost savings) even if it has been
advised of their possible existence. Any action by either party must be brought
within two (2) years after the cause of action arose.
11.3 The allocations of liability in this Section 11 represent the agreed and
bargained-for understanding of the parties and ▇▇▇▇▇▇▇▇ Consulting's
compensation for the Services reflects such allocations. The parties agree
further that they will look only to the assets of the other party in connection
with any liabilities hereunder and in no event shall they have any claim against
any
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shareholder, partner or holder of an ownership interest in the other party in
connection with this Agreement.
12. TERMINATION.
12.1 Client may at any time and without cause terminate this Agreement by giving
thirty (30) days' written notice of termination to ▇▇▇▇▇▇▇▇ Consulting.
Termination of this Agreement shall not affect any Appendices then in effect.
Except as otherwise set forth in an Appendix, Client may at any time and without
cause terminate an Appendix by giving ▇▇▇▇▇▇▇▇ Consulting thirty (30) days'
written notice of termination. Except as otherwise set forth in an Appendix,
▇▇▇▇▇▇▇▇ Consulting shall have the right to terminate an Appendix by giving
Client thirty (30) days' prior written notice only if: (i) Client has completely
suspended (for any reason other than ▇▇▇▇▇▇▇▇ Consulting's default) ▇▇▇▇▇▇▇▇
Consulting's performance of the Services under such Appendix and such suspension
has lasted for ninety (90) days or more; (ii) Client merges with a third party
(where Client is the surviving entity) or acquires all or substantially all of
the business assets of a third party and ▇▇▇▇▇▇▇▇ Consulting can reasonably
demonstrate that there is a substantial likelihood that such surviving entity or
acquired entity, as a result of such merger or acquisition, will directly
compete with ▇▇▇▇▇▇▇▇ Consulting with respect to the type of work which is being
provided by ▇▇▇▇▇▇▇▇ Consulting under this Agreement. Termination of an Appendix
shall have no impact upon this Agreement or any other Appendix. Upon such
termination, Client shall pay ▇▇▇▇▇▇▇▇ Consulting for all Services rendered and
expenses incurred by ▇▇▇▇▇▇▇▇ Consulting in accordance with the terms and
conditions of this Agreement and the applicable Appendix prior to the date of
termination. In the event of any termination by Client without cause pursuant to
this Section 12.1, Client shall also pay ▇▇▇▇▇▇▇▇ Consulting for ▇▇▇▇▇▇▇▇
Consulting's actual out-of-pocket demobilization costs resulting from such early
termination.
12.2 Either party may, upon giving thirty (30) days' written notice identifying
specifically the basis for such notice, terminate the applicable Appendix (and
not any other Appendix) for breach of a material term or condition of the
applicable Appendix unless the party receiving the notice cures such breach
within the thirty (30) day period. Upon such termination, Client shall pay
▇▇▇▇▇▇▇▇ Consulting for all Services rendered and expenses incurred by ▇▇▇▇▇▇▇▇
Consulting in accordance with the terms and conditions of this Agreement and the
applicable Appendix prior to the date of termination. In addition, if ▇▇▇▇▇▇▇▇
Consulting terminates an Appendix under this Section 12.2 for Client's breach,
Client shall also pay ▇▇▇▇▇▇▇▇ Consulting's actual out of pocket demobilization
costs resulting from such early termination.
12.3 The parties agree that, in the event of a dispute or alleged breach subject
to Section 12.2, they will work together in good faith first, to resolve the
matter internally by escalating it to higher levels of management and, then if
necessary, to use a mutually agreed alternative dispute resolution technique
prior to resorting to litigation. This provision shall not apply to disputes
involving confidentiality or infringement of intellectual property rights (in
which case either party shall be free to seek available remedies in any forum).
12.4 The terms of Sections 2, 3.3, 4, 5, 6, 7, 8, 10, 11, 12.3 and 17 shall
survive termination of this Agreement or completion of any Appendix.
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13. SEVERABILITY.
If any term or provision of this Agreement is found by a court of competent
jurisdiction to be invalid, illegal or otherwise unenforceable, the same shall
not affect the other terms or provisions hereof or the whole of this Agreement,
but such term or provision shall be deemed modified to the extent necessary in
the court's opinion to render such term or provision enforceable, and the rights
and obligations of the parties shall be construed and enforced accordingly,
preserving to the fullest permissible extent the intent and agreements of the
parties herein set forth.
14. NOTICES.
Any notice or other communication given pursuant to this Agreement shall be
in writing and shall be effective either when delivered personally to the party
for whom intended, or five (5) days following deposit of the same into the
United States mail (certified mail, return receipt requested, or first class
postage prepaid), facsimile (with confirmation of delivery) or overnight
delivery services (with confirmation of delivery), addressed to such party at
the address set forth on the initial page of this Agreement. Either party may
designate a different address by notice to the other given in accordance
herewith.
15. FORCE MAJEURE.
Neither party shall be liable for any delays or failures in performance
(other than payment obligations hereunder) due to circumstances beyond its
reasonable control.
16. COMPLETE AGREEMENT; MISCELLANEOUS.
16.1 This Agreement sets forth the entire understanding between the parties
hereto and supersedes all prior agreements, arrangements and communications,
whether oral or written, with respect to the subject matter hereof. Any purchase
order issued by the Client shall be for its administrative purposes only and
none of its terms and conditions shall be of any force or effect against
▇▇▇▇▇▇▇▇ Consulting. Each Appendix, except as its terms otherwise expressly
provide, shall be a complete statement of its subject matter and shall
supplement and modify the terms and conditions of this Agreement for the
purposes of that engagement only. No other agreements, representations,
warranties or other matters, whether oral or written, shall be deemed to bind
the parties hereto with respect to the subject matter hereof. The parties
acknowledge that they are entering into this Agreement solely on the basis of
the agreements and representations contained herein, and for their own purposes
and not for the benefit of any third party.
16.2 Neither this Agreement nor any Appendix may be modified or amended except
by the mutual written agreement of the parties. No waiver of any provision of
this Agreement shall be effective unless it is in writing and signed by the
party against which it is sought to be enforced.
16.3 The delay or failure by either party to exercise or enforce any of its
rights under this Agreement shall not constitute or be deemed a waiver of that
party's right thereafter to enforce those rights, nor shall any single or
partial exercise of any such right preclude any other or further exercise
thereof or the exercise of any other right.
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17. GOVERNING LAW.
This Agreement shall be governed by and construed in accordance with the
laws of the Southern District of the State of New York, without giving effect to
conflict of law rules
18. ASSIGNMENT.
Except as provided in this subsection, this Agreement may not be assigned by
either party and any attempted assignment shall be void. However, either party's
rights hereunder may be transferred to a successor of all or substantially all
of the business and assets of the party regardless of how the transaction or
series of related transactions is structured and either party may, upon written
notice to the other party, assign this Agreement to any affiliate. Any
obligations of payment created pursuant to the terms of this Agreement or an
Appendix will survive such assignment, and shall transfer to an affiliate or
successor that is assigned this Agreement under this Section.
19. COUNTERPARTS.
This Agreement may be executed in counterparts.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
date first written above.
▇▇▇▇▇▇▇▇ CONSULTING LLP DEL MONTE CORPORATION ("CLIENT")
By /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ By /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
---------------------------------- -------------------------------
Name ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ Name ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
--------------------------------- -----------------------------
Title PARTNER Title VICE PRESIDENT AND
------------------------------- CHIEF INFORMATION OFFICER
----------------------------
DATE 11/3/00 DATE 11/3/00
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