THIS AGREEMENT FOR CONSULTING SERVICES is made and entered into as of the __ day of ___________, 199_, by and between America Online, Inc., a Delaware corporation, with offices at 8619 Westwood Center Drive, Vienna, Virginia 22182 (hereinafter referred to as "America Online"), and _______________ (hereinafter referred to as "Consultant").
NOW, THEREFORE, in consideration of the mutual promises set forth herein, America Online and Consultant hereby agree as follows:
1. Services and Scope of Work
1.1 Services. Consultant agrees to provide to America Online consulting services as they are described on such schedules as are executed from time to time by both parties to this Agreement (the "Schedules"), each of which Schedules shall be consecutively numbered and annexed hereto. Such services shall be provided in accordance with the provision of this Agreement and the applicable Schedule and will be on either a fixed price or time and materials basis as specified in the applicable Schedule.
1.2 Scope of Work. A Statement and Scope of Work (the "Statement") shall be included in each Schedule. Each Statement will contain a description of the tasks to be performed by Consultant, the deliverables and documentation to be produced by Consultant, acceptance criteria for each deliverable, a schedule of performance, a schedule of payments and a statement of Consultant's then-current rates, if applicable.
2. Consultant Personnel
2.1 Consultant Project Manager. Consultant will appoint for each Schedule a qualified member of its staff to act as project manager (the "Consultant Project Manager"), whose duties shall be to act as liaison between America Online and Consultant.
2.3 Independent Contractor. Consultant is an independent contractor. Consultant shall not be deemed for any purpose to be an employee of America Online. America Online shall not be responsible to Consultant or any governing body for any payroll-related taxes related to the performance of the services. Consultant further represents and warrants that Consultant qualified as an independent Consultant under the provisions of the Internal Revenue Code's common law rules enacted as part of Section 1706 of the 1986 Tax Reform Act, and as such Consultant is filing all required forms and necessary payments appropriate to the Consultant's tax status.
3. Project Management
3.1 America Online Project Manager. America Online shall designate a project manager for each Schedule (the "America Online Project Manager") who shall act as a liaison between America Online and Consultant.
3.2 Progress Reports and Meetings. If requested by America Online, Consultant shall submit a detailed Progress Report to the American Online Project Manager every month (or more frequently if requested by America Online) during the term of each Schedule. Such progress reports will detail work performed to date and estimated time and cost to complete.
If America Online so requests, Consultant shall hold status meetings with the America Online Project Manager in order to review the status of Consultant activities.
4. Fees, Expenses, Records, and Taxes
4.1 Fees. Consultant agrees to invoice America Online, as set forth in the Schedule, in arrears for services provided to America Online by Consultant personnel under each Schedule which specifies that services performed thereunder are to be performed on a time and materials basis.
4.2 Expenses. In addition, Consultant shall invoice America Online, in arrears as provided in the Schedule, for expenses incurred as a result of performing services in accordance with any Schedule. Such expenses shall be limited to reasonable out-of-pocket expenses necessarily and actually incurred by Consultant in the performance of its services hereunder, provided that: (i) America Online has given its prior written consent for any such expenses; (ii) the expenses have been detailed on a form acceptable to America Online and submitted to the appropriate America Online Project Manager for review and approval; and (iii) if requested by America Online, Consultant submits supporting documentation in addition to the approved expense form.
4.3 Review of Fees and Expenses. If requested by America Online, Consultant will submit the charges and/or expenses to be invoiced for services performed and the applicable time reports or documentation under any Schedule to the America Online Project Manager for approval prior to actual invoicing. The charges and/or expenses invoiced in accordance with this Paragraph, except for any amounts disputed by America Online, shall be payable by America Online within thirty (30) days of America Online's receipt of each invoice.
4.4 Maximum Dollar Amount. Notwithstanding anything to the contrary contained herein, America Online shall not be liable for any charges and/or expenses under any Schedule for work done on a time and materials basis in excess of the Maximum Dollar Amount specified on such Schedule.
4.5 Records. Consultant shall maintain complete and accurate accounting records, in a form in accordance with generally accepted accounting principles, to substantiate Consultant's charges and expenses hereunder and Consultant shall retain such records for a period of four (4) years from the date of final payment under any Schedule.
4.6 Taxes. America Online agrees to pay the amount of any sales, use, excise, or similar taxes applicable to the performance of the services, if any, or in lieu thereof, America Online shall provide Consultant with a certificate acceptable to the taxing authorities exempting America Online from payment of these taxes.
5. Acceptance of Services
5.1 Acceptance Criteria. Each deliverable shall be subject to acceptance testing by America Online to verify that the deliverable satisfies the acceptance criteria mutually agreed to by America Online and Consultant for said deliverable.
The acceptance criteria for each deliverable, which shall be included in the applicable Schedule, shall be jointly developed and mutually agreed to in writing by America Online and Consultant before work commences under the Schedule, when possible, but in no event later than thirty (30) days in advance of the date identified in the Schedule for production of the deliverable involved. If America Online in good faith cannot agree to any of the acceptance criteria proposed by Consultant, America Online may terminate this Agreement and/or the subject Schedule without incurring any liability hereunder and/or thereunder.
5.2 Acceptance Testing. If elected by America Online, acceptance testing for any deliverable shall commence within five (5) working days of the date on which Consultant notifies the America Online Project Manager, in writing, that the deliverable has been satisfactorily completed, in Consultant's opinion, and is ready for acceptance testing by America Online. Acceptance testing shall continue for the period of time specified in the acceptance criteria or, if no such time period has been agreed upon by the parties, for a period of thirty (30) consecutive days (the "Initial Acceptance Period").
In the event that any deliverable does not conform to the acceptance criteria within the Initial Acceptance Period described above, America Online shall give Consultant written notice thereof. America Online shall cooperate with Consultant in identifying in what respects the deliverable has failed to conform to the criteria. Subject to mutual agreement, Consultant shall promptly correct any deficiencies which prevent such deliverable from conforming to the criteria.
If the deliverable does not conform to the acceptance criteria within sixty (60) days after the end of the Initial Acceptance Period described above, America Online may (i) immediately terminate the applicable Schedule without any further obligation or liability of any kind.
When the deliverable has successfully conformed to or satisfied the acceptance criteria, America Online shall give Consultant written notice thereof.
7. Confidentiality and Proprietary Rights
7.1 Confidentiality. Consultant acknowledges that America Online, its subsidiaries and affiliated companies, are the owners of valuable trade secrets, and other confidential information and license same from others. Consultant further acknowledges that the services which America Online, its subsidiaries and/or affiliated companies performs for clients are confidential; that to enable America Online, its subsidiaries and/or affiliated companies to perform these services, its clients furnish confidential information concerning their business affairs, finances, properties, methods of operation and other data; that the good will of America Online, its subsidiaries and/or affiliated companies depends, among other things, upon its keeping such services and information confidential and that unauthorized disclosure of the same would irreparably damage America Online, its subsidiaries and/or affiliated companies; and that by reason of its duties hereunder, Consultant may come into possession of information concerning such services or information furnished by clients, even though Consultant does not himself take any direct part in or furnish the services performed for those clients. All such information owned by America Online, its subsidiaries and/or affiliated companies, licensed by America Online, its subsidiaries and/or affiliated companies, or concerning clients of America Online, its subsidiaries and/or affiliated companies and services rendered by America Online, its subsidiaries and/or affiliated companies to such clients is hereinafter collectively referred to as "Confidential Information."
7.2 Non-Disclosure. Consultant agrees that, except as directed by America Online, Consultant will not at any time during or after the term of this Agreement or any Schedule disclose any Confidential Information to any person, or permit any person to examine and/or make copies of any reports or any documents prepared by Consultant or that come into Consultant's possession or under Consultant's control by reason of Consultant's services, and that upon termination of this Agreement, Consultant will turn over to America Online all documents, papers, and other matter in Consultant's possession or under Consultant's control that contain or relate to such Confidential Information.
7.3 Injunctive Relief. Consultant acknowledges that disclosure of any Confidential Information by Consultant will give rise to irreparable injury to America Online, its subsidiaries and/or affiliated companies or the owner of such information, inadequately compensable in damages. Accordingly, America Online or such other party may seek and obtain injunctive relief against the breach or threatened breach of the foregoing undertakings, in addition to any other legal remedies which may be available. Consultant acknowledges and agrees that the covenants contained herein are necessary for the protection of legitimate business interests of America Online, its subsidiaries and/or affiliated companies and are reasonable in scope and content.
7.4 Proprietary Rights. Unless otherwise specified in a Schedule, all work performed under any Schedule, and all materials, products, deliverables developed or prepared for America Online by Consultant under such Schedule (whether or not such Schedule is completed), are the property of America Online and all title and interest therein shall vest in America Online and shall be deemed to be a work made for hire and made in the course of the services rendered hereunder. To the extent that title to any such works may not, by operation of law, vest in America Online or such works may not be considered works made for hire, all rights, title and interest therein are hereby irrevocably assigned to America Online. All such materials shall belong exclusively to America Online, shall have the right to obtain and to hold in its own name, copyrights, registrations, or such other protection as may be appropriate to the subject matter, and any extensions and renewals thereof. Consultant agrees to give America Online and any person designated by America Online such reasonable assistance, at America Online's expense, as is required to perfect the rights defined in this Paragraph. Unless otherwise requested by America Online, upon the completion of the services to be performed under each Schedule or upon the earlier termination of such Schedule, Consultant shall immediately turn over to America Online all materials and deliverables developed pursuant to such Schedule.
9. General
9.1 Timeliness of Performance. Neither party, however, shall be responsible for any delays that are not due to such party's fault or negligence or that could not have reasonably been foreseen or provided against.
9.2 Term and Termination. This Agreement shall commence as of the date first written above and shall continue in full force and effect thereafter unless and until terminated in accordance with the provisions of this Agreement or any Schedule or until satisfactory completion of the services provided for herein and in all Schedules, based on the acceptance criteria set forth in said Schedules.
In the event of any material breach of this Agreement by either party, the other party may cancel this Agreement, by giving thirty (30) days' prior written notice thereof; provided, however, that this Agreement shall not terminate at the end of said thirty (30) days' notice period if the party in breach has cured the breach of which it has been notified prior to the expiration of said thirty (30) days.
Unless otherwise provided in a schedule hereto, in the absence of a material breach of this Agreement by Consultant, either party may terminate this Agreement or any Schedule hereunder for any reason by giving the other party two weeks' prior written notice of its election to terminate said Agreement or Schedule. In such case, America Online agrees to pay Consultant for all costs incurred by the Consultant with America Online's approval up to the effective date of termination.
9.3 Work Rules. Unless otherwise agreed to by the parties, Consultant shall observe the working hours, working rules, and policies of America Online while working on America Online's premises.
9.4 Assignment. This Agreement shall be binding upon the parties' respective successors and permitted assigns. Neither party may assign this Agreement or any of its rights or obligations hereunder without the prior written consent of the other party, and any such attempted assignment shall be void, except that America Online may assign this Agreement, or any of its rights or obligations hereunder, upon written notice to Consultant, to any of its subsidiaries or affiliated companies, without the consent of Consultant. Furthermore, no work to be performed by Consultant hereunder shall be subcontracted to or performed on behalf of Consultant by any third party, except upon written permission by America Online.
9.5 Notices. Any notices or communication under this Agreement shall be in writing and shall be hand-delivered or sent by certified mail (return receipt requested) to the party receiving such communication at the address specified below:
If to America Online:
America Online, Inc.
8619 Westwood Center Drive
Vienna, VA 22182
Attention: Stephen M. Case, President
with a copy to:
Attention: Ellen M. Kirsh, General Counsel
If to Consultant:
______________________
______________________
______________________
______________________
or such other address as either party may in the future specify to the other party.
9.6 Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the Commonwealth of Virginia.
9.7 Modifications. No modifications, amendment, supplement to or waiver of this Agreement or any Schedule hereunder, or any of their provisions shall be binding upon the parties hereto unless made in writing and duly signed by both parties.
9.8 Waiver. A failure of either party to exercise any right provided for herein shall not be deemed to be a waiver of any right hereunder.
9.9 Complete Agreement. This Agreement and each Schedule attached hereto set forth the entire understanding of the parties as to the subject matter therein and may not be modified except in a writing executed by both parties.
9.10 Severability. In the event any one or more of the provisions of this Agreement or of any Schedule is invalid or otherwise unenforceable, the enforceability of remaining provisions shall be unimpaired.
9.11 Publicity. Consultant agrees that it will not, without prior written consent of America Online, use in advertising, publicity, or otherwise the name of America Online, or refer to the existence of this Agreement in press releases, advertising, or materials distributed to prospective customers.
9.13 Non-Solicitation. Unless otherwise mutually agreed to by the parties in writing, Consultant agrees not to hire or to solicit the employment of any personnel of America Online directly or indirectly associated with Consultant's work effort under any Schedule during the term of such Schedule and for a period of one (1) year thereafter.
9.14 Surviving Sections. The following sections shall survive the termination of this Agreement: 4.6, 7.1, 7.2, 7.3, 7.4, 9.13.
IN WITNESS WHEREOF, the parties hereto, each acting under due and proper authority, have executed this Agreement as of the date first written above.
AMERICA ONLINE, INC. CONSULTANT
By: By:
Print Name: Print Name:
Title: Title:
Date: Date:
SCHEDULE NO. 1 TO
AGREEMENT FOR CONSULTING SERVICES
BETWEEN
AMERICA ONLINE, INC. AND _____________
DATED AS OF ______________
SCOPE OF WORK STATEMENT
1. Detailed description of services to be rendered by Consultant:
2. Deliverables and documentation to be produced by Consultant:
3. Acceptance testing criteria for each deliverable:
Applicable as described below __X__ Not Applicable _____
4. Describe basis for payment:
(a) Fixed price: $______________
amount
or
(b) Time and Materials: _______________________________.
(c) Maximum dollar amount payable to Consultant for all fees and expenses under
this Schedule: $___________________.
(d) America Online to be invoiced: ___X___ Weekly
_______ Monthly
_______ Upon Completion
_______ Other (describe: _________
______________________)
5. Consultant Project Manager:
6. America Online Project Manager:
7. Additional Terms and Conditions:
The terms and conditions of this Schedule amend and supersede the terms and conditions of the Agreement for Consulting Services to which this Schedule is annexed, and which is hereby incorporated therein.
AMERICA ONLINE, INC. CONSULTANT
By: By:
Print Name: Print Name:
Title: Title:
Date: Date:
