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EXHIBIT 10.38
CONSULTING SERVICES AGREEMENT
This Consulting Services Agreement ("Agreement") is made by and between
Hewlett-Packard Company ("Seller") and the undersigned customer ("Customer")
and is effective as of the date last signed by Seller or Customer ("Effective
Date").
1. DEFINITIONS
a. "Deliverables" means the tangible result of the services delivered by
Seller to Customer as described in each Attachment A hereto.
b. "Services" means those consulting services performed by Seller for
Customer as described in Attachment A hereto. Services may include such
activities as analysis., design, specification, planning,
implementation, education, and performance optimization of systems and
applications, and project management services as described in
Attachment A.
2. TERM
This Agreement shall commence on the Effective Date and shall continue
in effect until terminated by either party in accordance with Section
13 "Termination."
3. SERVICE PROVISIONS
a. SCOPE OF WORK. Sell will provide those Services and/or Deliverables
specifically described in one or more statements of work attached
hereto as Attachment A. Customer and Seller will sign a separate
Attachment A for each consulting assignment. Each Attachment A will
reference this Agreement and will be executed by authorized
representatives of Customer and Seller. For each consulting assignment
performed by Seller hereunder, the Attachment A will specify the
following:
o Deliverables o Acceptance criteria
o Estimated delivery schedule o Names of the individuals coordinating
o Total price the activities on behalf of Customer
o Payment Schedule and Seller
o Any other information necessary to
clarify the scope of the work Seller
is providing to Customer
b. SERVICE HOURS. Services will be performed during Seller's normal
business hours at Customer's or Seller's facility, unless otherwise
agreed in writing by the parties.
c. DELIVERY SCHEDULE. The estimated dates for delivery of the services
and/or Deliverables are set out in Attachment A. Seller will use
reasonable efforts to meet the estimated delivery schedule set out in
Attachment A, but will not be liable for failure to meet such dates.
4. CUSTOMER RESPONSIBILITIES
a. CUSTOMER CONTACT. For each Attachment A hereto. Customer will appoint a
customer contact to the Seller consultant providing Services. This
contact, or a designated alternate, must be present at Customer's
facility at all times Services are performed by Seller at such
facility. Seller personnel will not enter or remain at Customer's
facility in the absence thereof.
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b. INFORMATION AND ACCESS. Customer shall provide Seller with
access to and use of all information, documentation, computer
time and facilities required to provide the Services to
Customer hereunder. Customer is responsible for the
completeness and accuracy of information upon which Seller
will rely in providing the Services. Customer is responsible
for determining that the Services and Deliverables meet
Customer's business objectives.
c. CUSTOMER DELAYS. In the event Seller incurs delays,
additional costs or labor as a result of any act or omission
of Customer, including but not limited to Customer's failure
to provide information, data or access to Customer's
facilities or personnel. Customer agrees that Seller may,
upon prior written notice to Customer, add reasonable charges
to the amounts invoiced to Customer and adjust the delivery
schedule set forth in Attachment A.
5. CHANGE ORDERS
a. If Customer finds there is a need for a change in Attachment
A or in any other aspect of the project, then (i) Customer
shall submit a change order in writing; (ii) Seller shall
evaluate the impact of the change order on the project
schedule and respond by accepting or rejecting it within five
(5) working days of receipt; (iii) Seller's acceptance of a
change order shall include the estimated cost and impact, if
any, on the project schedule; and (iv) Customer will notify
Seller in writing within five (5) working days of receipt of
Seller's acceptance whether Customer authorizes Seller to
implement the change order based on the cost and schedule set
out in Seller's acceptance.
b. If Seller finds that there is a need for a change in
Attachment A or any other aspect of the project, then (i)
Seller shall submit a change order in writing detailing the
cost and impact, if any, on the project schedule; (ii)
Customer shall respond by accepting or rejecting the change
order within five (5) working days of receipt; and (iii)
Customer's acceptance shall specifically authorize
implementation of the change order based on the cost and
schedule set out in Seller's requested change order.
c. In the event a change order is rejected, the party rejecting
such change order shall be obligated to provide reasonable
grounds for not accepting such change orders, and the party
requesting the change order shall have five (5) working days
from notification that the change order is not accepted to
withdraw such change order. If such change order is not
withdrawn, then either party shall have the right to
terminate this Agreement. Upon such termination, Customer
shall pay Seller's costs and labor incurred to date of
termination on a time and material basis and shall promptly
comply with Section 13a.
d. Although changes in the standard Seller products ordered for
the Project are governed by the terms of Customer's Purchase
Agreement, these changes may impact the Project Services and
software development services provided under this Agreement.
Therefore, changes in the standard Seller products ordered
for the Project, whether requested by Customer or Seller,
require that a change order be submitted by the requesting
party detailing the desired changes.
6. ACCEPTANCE
Acceptance of the Services and/or Deliverables provided to Customer
hereunder will occur upon Seller's demonstration that the Services
and/or Deliverables meet the acceptance criteria set out in the
applicable Attachment A. In the absence of any acceptance criteria
in Attachment A, acceptance of the Services will occur upon
Seller's completion of the performance of such Services, and
acceptance of the Deliverables will occur upon Seller's delivery of
such Deliverables to Customer. Notwithstanding the above,
Customer's operational or commercial use of the Deliverables shall
also constitute Acceptance.
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7. WARRANTY
HP warrants that Services provided hereunder will be performed in a
professional and workmanlike manner in accordance with generally recognized
commercial practices and standards.
HP MAKES NO OTHER WARRANTIES, EXPRESS OR IMPLIED, FOR THE SERVICES OR ANY
DELIVERABLES DEVELOPED OR PROVIDED HEREUNDER, AND SPECIFICALLY DISCLAIMS
THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR
PURPOSE.
8. PRICE AND PAYMENT TERMS
a. PRICE. Prices quoted for the Services and Deliverables provided
hereunder are valid for thirty (30) days from the quotation date.
Prices include all materials, labor, and travel expenses, except as
specified in Attachment A.
b. INVOICES. Seller will issue invoices for payment in accordance with
the schedule set out in each Attachment A hereto. Charges for travel
expenses may be invoiced separately.
c. PAYMENT. Payment for each invoice provided by Seller to Customer
hereunder shall be due within thirty (30) days of the invoice date.
9. TITLE AND RIGHTS IN DELIVERABLES
a. Except as provided in paragraph 9(b), all rights, title and interest
in any and all Deliverables provided hereunder for shall belong to
Seller.
b. Seller grants Customer a perpetual, worldwide, nonexclusive,
nontransferable license to use the Deliverables provided hereunder for
Customer's internal use only.
c. Seller reserves the right to use any of the underlying ideas,
concepts, know how, techniques and experience gained hereunder.
d. All copyrights and other intellectual property rights existing prior
to the Effective Date shall belong to their originator.
e. Neither party shall gain by virtue of this Agreement any rights of
ownership or copyright or any other intellectual property rights owned
by the other.
10. INTELLECTUAL PROPERTY PROTECTION
a. Seller will not knowingly infringe any patent, copyright, trade
secret, mask work or trademark in the course of providing Services
and/or Deliverables to Customer hereunder.
b. Seller will defend or settle any claim against Customer that Seller
has knowingly infringed any patent, copyright, trade secret, mask work
or trademark in the course of providing Services and/or Deliverables
hereunder, provided Customer:
1) promptly notifies seller in writing of the claim; and
2) cooperates with Seller in, and grants Seller sole authority to
control the defense and any related settlement.
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c. Seller will pay the cost of such defense and settlement and any costs
and damages finally awarded by a court against Customer. If such a
claim is made or appears likely to be made, Seller may procure the
right for Customer to continue using the Deliverable, may modify
the Deliverable, or may replace it. If use of the Deliverable is
enjoined by a court and Seller determines that none of these
alternatives is reasonably available, Seller will take back the
Deliverable and refund its depreciated value.
d. Seller has no obligation for any claim of infringement arising from:
1) Seller's compliance with any designs, specifications or
instructions of Customer;
2) modification of the Deliverable by Customer or a third party;
3) use of the Deliverable in a way not specified by Seller; or
4) use of the Deliverable with products not supplied by Seller.
e. This Section 10 states the entire liability of Seller for claims of
infringement by Deliverables and Services supplied by Seller
hereunder.
11. LIMITATION OF REMEDIES AND LIABILITIES
a. Seller will be liable for damage to tangible property per incident up
to $300,000, and for damages for bodily injury or death, to the extent
a court of competent jurisdiction has determined that a Deliverable
provided hereunder is defective and has directly caused such damages.
b. THE REMEDIES PROVIDED HEREIN ARE CUSTOMER'S SOLE AND EXCLUSIVE
REMEDIES. IN NO EVENT SHALL SELLER OR ITS SUBCONTRACTORS BE LIABLE FOR
LOSS OF DATA OR FOR DIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL
(INCLUDING LOST PROFIT) OR OTHER DAMAGE WHETHER BASED IN CONTRACT,
TORT, OR OTHERWISE.
12. CONFIDENTIALITY
Seller and Customer agree that all information exchanged between them is
not confidential unless they have entered into a separate Confidential
Disclosure Agreement.
13. TERMINATION
a. TERMINATION OF ATTACHMENT A. Either party may terminate a specific
Attachment A for cause in the event of the other party's refusal or
inability to perform, or the breach of any material provision of this
Agreement or Attachment A, provided the party in breach has been given
thirty (30) days' prior written notice and has failed to cure the
breach during the thirty (30) day cure period. In the event of
termination, Customer will pay Seller's for all work performed and
charges incurred by Seller up to date of termination, and Seller will
provide Customer with any work in progress.
b. TERMINATION OF THIS AGREEMENT. Either party may terminate this
Agreement for convenience upon thirty (30) days' prior written notice
to the other party. Any termination of this Agreement shall not
relieve either party of its obligations under any Attachment A in
effect on the date of termination of this Agreement, unless otherwise
mutually agreed to in writing by Seller and Customer.
14. PERSONNEL
a. PERSONNEL ASSIGNMENTS. Seller reserves the right to select the
consultants who will deliver the Services and/or Deliverables to
Customer and to reassign employees as necessary. If Seller agrees to
Customer's request for a specific Seller consultant, Customer agrees
to pay any extra expenses associated with the use of the requested
consultant.
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b. SUBCONTRACTORS. Seller may use subcontractors to provide Services
and/or Deliverables under this Agreement.
15. SURVIVAL OF PROVISIONS
Sections 7, 9, 10 and 11 of this Agreement regarding disclaimer of
warranty, title and rights in deliverables, intellectual property
protection, and limitation of remedies and liability shall survive the
termination of this Agreement.
16. NOTICES
All notices required under or regarding this Agreement, or any
Attachment A hereto, shall be in writing and shall be considered given
upon personal delivery of the written notice to the Seller consultant
or Customer representative designated in Attachment A, or within five
(5) days of mailing, postage prepaid and appropriately addressed
thereto.
17. ASSIGNMENT
Neither party may assign or transfer any of its rights or obligations
under this Agreement or any Attachment A hereto without the prior
written consent of the other party, and any purported attempt to do so
will be null and void.
18. EXHIBITS
The following documents are attached hereto as exhibits, the terms of
which are incorporated by reference in their entirety:
Attachment A--Scope of Work
19. ORDER OF PRECEDENCE
In the event the terms of this Agreement conflict with the terms
contained in an Attachment A hereto, the terms of this Agreement shall
govern.
20. MISCELLANEOUS
a. SIMILAR SERVICES. Nothing in this Agreement will be construed to
prohibit Seller from developing and providing materials or services to
others that are similar to those delivered to Customer hereunder.
b. STANDARD PRODUCTS. This Agreement is for services only. All standard
hardware and software products sold or licensed to Customer are
governed by the terms of separate agreement.
c. SUPPORT. Unless otherwise agreed to by Seller and Customer in
Attachment A, Seller is not responsible for providing support for any
Deliverables delivered hereunder.
d. INVALIDITY. Any term of this Agreement which is held to be invalid will
be deleted, but the remainder of the terms of this Agreement will not
be affected.
e. FORCE MAJEURE. Neither party will be liable for performance delays or
for non-performance due to causes beyond its reasonable control.
f. WAIVER. Neither party's failure to exercise any of its rights under
this Agreement will constitute or be deemed a waiver or forfeiture of
those rights.
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g. GOVERNMENT REGULATIONS. No government procurement regulations or
contract clauses are binding on either party unless required by law or
mutually agreed.
h. EXPORT PROHIBITION. If Customer exports any Deliverable provided
hereunder, Customer assumes responsibility for complying with
applicable laws and regulations and for obtaining required export and
import authorizations. Customer will not export or re-export any
technical data in violation of applicable export regulations.
i. GOVERNING LAW. Any disputes arising in connection with this Agreement
will be governed by the laws of the State of California.
j. ENTIRE AGREEMENT. This Agreement and any attachments constitute the
entire agreement between Seller and Customer relating to transactions
hereunder and supersede any previous communications, representations
or agreements between the parties, whether oral or written, regarding
transactions hereunder. Customer's additional or different terms and
conditions will not apply. The terms and conditions of this Agreement
may not be changed except by an amendment signed by an authorized
representative of each party.
The parties hereto have caused this Consulting Services Agreement to be duly
executed as of the date indicated below.
Seller: CUSTOMER:
Hewlett-Packard Company ----------------------------------
(Print Company Name of Customer)
Signed: Signed:
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Printed: Printed:
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Title: Title:
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Date: Date:
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