Exhibit
10.8
MASTER
SUBCONTRACTING AGREEMENT
THIS
AGREEMENT (“Agreement”) made as of February 1, 2005 (hereinafter “Effective
Date”) by and between Information Systems Associates, Inc. (“Subcontractor”), a
Florida corporation, which has its principal offices at 2423 SE St. Lucie Blvd,
Stuart, FL 34996, and Aperture Technologies Inc. (“Aperture”), with its
principal office at 9 Riverbend Drive South, Stamford, CT
06907.
RECITALS
Subcontractor
and APERTURE are both engaged in the field of software and software development.
At various times, APERTURE may require the assistance of Subcontractor in
connection with services that APERTURE is performing for its
customers.
NOW,
THEREFORE, in consideration of the mutual promises set forth herein,
the parties agree as follows:
Subject
to the provisions of Section 5 hereof, Subcontractor shall provide, on a non-
exclusive basis, Services as set forth in various work orders to this Agreement.
The term of this Agreement shall commence on the Effective Date and shall
continue for twelve months unless earlier terminated pursuant to Section 10.
The
term of this Agreement shall automatically renew upon each anniversary of the
Effective Date for an additional twelve month term unless either party elects
not to renew this Agreement by written notice to the other party at least 60
days prior to such anniversary.
APERTURE
shall pay Subcontractor for Services rendered base upon the compensation
structure set forth in the applicable work order, which will set forth the
description of Services. Subcontractor shall invoice APERTURE for work
accomplished on a monthly basis and payments will be made by APERTURE to
Subcontractor within thirty (30) days upon receipt of a properly prepared and
verifiable invoice.
Subcontractor
shall submit to APERTURE, periodically, but not less than monthly, an invoice
in
a form acceptable to APERTURE, a Statement of Professional Services, addressed
and sent to:
Aperture
Technologies Inc.
9
Riverbend Drive South
Stamford,
CT 06907
Attn:
Accounts Payable
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4.
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Travel
and Reimbursables
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APERTURE
will not reimburse travel and living expenses without specific prior
authorization by APERTURE when Subcontractor is requested by APERTURE to travel
in connection with the performance of Services hereunder, the actual reasonable
cost of such travel and living expenses will be reimbursed. All air travel
will
be reimbursed based on actual cost, providing travel was at Coach Class or
less.
First Class or Business Class travel are not authorized except where it is
the
only class available. All claims for expense reimbursement shall be submitted
as
a line item on the aforementioned Statement of Professional Services in Section
3 above. Records of incurred expenses shall be retained by Subcontractor and
shall be made available to APERTURE’s auditor at Subcontractor’s office to
verify incurred expenses.
In
addition, APERTURE agrees to pay the reasonable out-of-pocket expenses incurred
by Subcontractor during performance of a Schedule. Any out-of-pocket expenses
costing more than $100 must not be incurred without the prior approval of
APERTURE.
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5.
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Independent
Contractor
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It is mutually agreed and understood that Subcontractor is an independent
contractor performing Services under this Agreement and is not to be considered
an employee of APERTURE nor shall Subcontractor be entitled to any rights,
benefits or privileges of APERTURE employees. Subcontractor shall not
have, nor represent that it has, any right, power or authority to bind APERTURE,
or to assume or create any obligation or responsibility, express or implied,
on
behalf of APERTURE, except as expressly permitted in writing by
APERTURE.
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6.
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Subcontractor
and APERTURE
Representatives.
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Subcontractor’s representative for this Agreement shall be Joseph P. Coschera,
or such other individual or individuals as may be from time to time designated
in writing by Subcontractor to APERTURE. APERTURE’s representative for this
Agreement shall be ____________, or such other individual or individuals as
may
be from time to time designated in writing by APERTURE to Subcontractor. Such
individual(s) shall not have the authority to waive or modify the terms of
this
Agreement.
Subcontractor
shall indemnify APERTURE against all liability and loss in connection with,
and
shall assume full responsibility for, payment of all federal, state and local
taxes or contributions imposed or required under unemployment insurance, social
security and income tax laws, with respect to performance of work by
Subcontractor under this Agreement.
Subcontractor certifies by its signature herein that there is no conflict of
interest between Subcontractor’s performance of this Agreement and the legal
obligations to others.
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9.
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Assignments
and Subcontracting.
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Subcontractor shall neither assign nor subcontract the performance of any of
the
Services which are to be performed by Subcontractor under this Agreement. Any
such action shall be void.
Either party may terminate this Agreement or any Schedule if the other party
is
in material breach or default of any obligation hereunder, which breach or
default is not cured within fifteen (15) days of written notice from the other
party. Neither party will stop work on a work order based on an arbitrary
preference to pursue a more profitable business opportunity.
APERTURE may, at its option, require delivery of a report summarizing work
accomplished at the time of termination. Upon such termination, APERTURE shall
be liable to Subcontractor only for payment of the value of the Services already
performed hereunder and in any event, not to exceed the amounts specified in
the
applicable work order.
This
Agreement shall be governed by and construed in accordance with the laws of
the
State of New York.
Notices
and other communications by a party under this Agreement, other than invoices,
shall be deemed given when received by Certified United States mail, Return
Receipt Requested, postage pre-paid, addressed as follows:
Subcontractor:
Information Systems Associates, Inc.
2423
SE St. Lucie Blvd.
Stuart,
FL 34996
Attn.:
Joseph P. Coschera,
President
APERTURE: Aperture
Technologies Inc.
9
Riverbend Drive South
Stamford,
CT 06907
Attn.:
Diane Mays
Subcontractor agrees to keep separate written records in reasonable detail
of
all work performed pursuant to this Agreement (a daily log indicating start
and
stop times applicable to Services hereunder satisfies the aforementioned
requirement) and all written records and any other data, drawings, prints and
information of whatsoever form prepared during or evolved from its Services
for
APERTURE pursuant to this Agreement. Such records and reports shall
be the property of APERTURE and shall be available to APERTURE at all reasonable
times. APERTURE shall have the right to audit such records and reports and
the
right to request further substantiating data where such reports and records
fail
to support the billing and invoicing under this Agreement. Further, where such
audits fail to substantiate the invoicing pursuant to the Agreement,
Subcontractor shall make appropriate refunds.
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14.
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Confidential
Data and Disclosures; Restrictive
Covenant
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All information which has been obtained by Subcontractor from APERTURE, others
not employees of APERTURE, or gathered by Subcontractor (or by others under
their direction or supervision) in connection with the performance of this
Agreement or from contact with employees of APERTURE, shall be deemed to be
confidential information belonging to APERTURE. During the terms of this
Agreement and thereafter, Subcontractor shall not use or disclose such
information for any purpose (not permit its use or disclosure by others who
are
under Subcontractor supervision or direction) except to the extent necessary
to
perform work pursuant to this Agreement, unless Subcontractor
demonstrates to the satisfaction of APERTURE that such information was actually
known to Subcontractor prior this Agreement, or was independently properly
obtained or evolved by Subcontractor apart from any connection with APERTURE
or
its employees, directly or indirectly, without breach of any
confidential relationships, or was publicly available. Subcontractor represents
that it has the full and unrestricted right to disclose any information,
knowledge and data which it may disclose to APERTURE in the course of
performance of its Services hereunder, and such disclosure shall be deemed
to be
confidential information belonging to Subcontractor.
During the term of this Agreement and for a period of two (2) years after the
termination of non-renewal of this Agreement for any reason, Subcontractor
shall
not (i) perform services of any sort for any Customer of APERTURE for whom
Subcontractor performed services pursuant to this Agreement; (ii) accept
employment by any Customer of APERTURE for whom Subcontractor performed services
pursuant this Agreement; (iii) hire any employee of APERTURE; or (iv) solicit,
raid, entice or induce any employee of APERTURE to become employed by
Subcontractor or any person, firm, corporation or entity that is in competition
with APERTURE.
All
material, documentation and other tangible expression of information including
but not limited to computer programs, technical programs, sales and marketing
information either in final production, draft or outline form, which result
from
any work which maybe done by Subcontractor pursuant to this Agreement
(“Documentation”) shall be deemed to be works made for hire and all rights,
title and interest therein shall belong exclusively to APERTURE. If by operation
of law any of the Documentation is held not to be works made for hire, then
Subcontractor agrees that it shall promptly assign all right, title and interest
therein to APERTURE, including, without limitation, all copyrights thereto.
Subcontractor agrees to provide any assistance required to permit APERTURE
to
obtain, hold and perfect in its own name, copyrights, registrations and other
proprietary right documentation, and other tangible expression of information
including but not limited to advertising materials and marketing aids, sales
aids, sales and technical publications. Documentation which results from any
work which may be done by Subcontractor pursuant to this Agreement shall remain
the sole and exclusive property of APERTURE or its nominee without additional
compensation of whatsoever kind or nature to Subcontractor. This provision
shall
apply irrespective of whether Subcontractor shall obtain patent or copyright
on
such Documentation, and shall survive termination of this
Agreement.
Subcontractor
shall not use any computer program, code or any materials developed by or for
the Subcontractor independently of this Agreement (“Pre-Existing Materials”) in
the performances of the services hereunder, except with APERTURE’s prior written
consent. If any Pre-Existing Materials are used by the Subcontractor for
performance of a work order without such APERTURE consent, Subcontractor shall
not retain any rights Subcontractor may have in the Pre-Existing Materials.
In
the event that APERTURE provides such consent, Subcontractor shall specify
on
the applicable work order the specific Subcontractor Pre-Existing Materials
that
Subcontractor anticipates it will need to use in providing the services
applicable to that work order, and Subcontractor shall retain any and all rights
Subcontractor may have in its Pre-Existing Materials. Subcontractor hereby
grants to APERTURE a non-exclusive, perpetual, world-wide, fully paid up license
to use, reproduce, modify and distribute to its customer the source code version
of Subcontractor’s Pre-Existing Materials and any derivates thereof, for the
purposes of performing the specific services for the customer under the
applicable work order, and the foregoing rights shall also be extended to any
customer contractors for the purpose of providing services to customer.
Subcontractor further grants to the customer a non-exclusive, perpetual,
world-wide, fully paid up license to use, reproduce and distribute to its end
users the object code version of Subcontractor’s Pre-Existing Materials and
derivates thereof, as an integrated part of the customer’s software, but not as
a standalone product, and to further sublicense such rights to the customer’s
distributors.
In
the
event of acts of God or other unforeseeable circumstances beyond the
commercially reasonable control of Subcontractor, the Subcontractor is not
responsible to perform the terms of this Agreement and APERTURE holds the
Subcontractor harmless for the inability to perform except for the requirements
of Sections 7,14 and 15.
In
the
event of the invalidity of any provisions of this Agreement under any applicable
law, the parties hereto agree that such invalidity shall not affect the validity
of the remaining portions of this Agreement, and further agree to substitute
for
the invalid provision a valid provision that most closely approximates the
effect and intent of the invalid provision.
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18.
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Intellectual
Property
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Subcontractor
warrants that the services and or software to be provided to APERTURE hereunder
do not infringe upon or violate any U.S. patent, copyright, trace secret, trade
name or trademark or any other proprietary right of any third party. If any
claim of infringement is made by any third party against APERTURE or its
customers (“Indemnified Parties”) arising from use of Subcontractor’s services
or software, APERTURE agrees to promptly notify Subcontractor and Subcontractor
shall defend against the claim on behalf of the Indemnified Parties at
Subcontractor’s expense. Subcontractor shall indemnify and hold the Indemnified
Parties harmless against any damages, costs, attorney’s fees, expenses, and
liabilities arising out of any such claim, whether or not the claim is
successful. Should a service or software being approved by Subcontractor become,
in Subcontractor’s opinion, the subject of any claim of infringement,
Subcontractor shall either (a) procure the right for APERTURE to continue
utilizing such service or software or (b) replace or modify the service or
software to make it non-infringing, provided that any such replaced or modified
service or software meets APERTURE’s requirements as set forth in this
Agreement. In the event Subcontractor is unable to procure such right, or
replace or modify the infringing services or software, APERTURE may immediately
terminate this Agreement and Subcontractor shall immediately thereupon refund
to
APERTURE the price paid for the affected services or software.
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19.
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Limitation
of Liability
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Except for personal injury or willful misconduct, the Subcontractor’s sole
liability under this Agreement for any claims, losses, damages or expense from
any cause whatsoever (including acts or omissions of third parties), regardless
of the form of action, whether in contract, tort, warranty, or otherwise, shall
not exceed the direct damages actually proven.
NEITHER
PARTY SHALL BE LIABLE TO THE OTHER FOR SPECIAL, INCIDENTAL OR CONSEQUENTIAL
DAMAGES EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
Subcontractor warrants that it will perform the services described herein in
a
professional and workmanlike manner and in accordance with the terms of each
work order.
EXCEPT AS IS SET FORTH IN SECTIONS 18 AND 19 OF THIS AGREEMENT, NO OTHER
WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, INCLUDING WARRANTY OF MECHANTABILITY
OR FITNESS FOR A PARTICULAR PURPOSE, SHALL APPLY.
This
Agreement (and Exhibit(s)) sets forth the entire and only Agreement between
APERTURE and Subcontractor relative to the ordering and delivery of Services.
Any representation, promise or condition, whether oral or written, not
incorporated herein, shall not be binding upon either party. No waiver,
modification, amendment, decision or other change to this Agreement shall be
binding on either party unless made in writing and signed by authorized
representatives of both parties.
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22.
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Acceptance
and Removal of Assigned
Personnel.
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APERTURE
shall have the right to accept or reject personnel assigned by Subcontractor
to
perform services under this Agreement. APERTURE reserves the right to request
immediate removal of assigned personnel. In the event an employee
of.