SONY PICTURES ENTERTAINMENT INC.
CONSULTANT SERVICES AGREEMENT
(CSA # L110203)
This Consultant Services Agreement ("Agreement") is made and effective as of ______XX, 2012 (“Effective Date”) by and between Sony Pictures Entertainment Inc., 10202 W. Washington Blvd., Culver City, California 90232 (the "Company"), and Avanade Inc., 818 Stewart Street, Suite 400, Seattle, Washington 98101 ("Consultant").
In consideration of the mutual covenants contained herein, the parties hereby agree with respect to consultant services to be provided by Consultant to Company as follows:
1. SERVICES
1.1 Consultant as an independent contractor and not as an employee shall provide consultant services to Company as specified in the work order or work orders substantially in the form attached hereto as Exhibit A ("Work Order"), perform all work and deliver all requisite work product (the “Deliverables”) in connection therewith (such work, services and Deliverables hereafter collectively referred to as the "Services"). Consultant agrees to perform the Services in a professional and workmanlike manner, and in accordance with any generally observed industry standards applicable to the performance of like services. As part of such Services, Company may periodically request reasonable written reports concerning Consultant’s progress, project status, billing data and other matters pertaining to the Services, and Consultant shall promptly provide such reports to Company at no additional charge unless otherwise specified in a Work Order. In addition, Consultant shall be available to meet periodically with Company for review of all aspects of this Agreement pertaining to the performance of Services.
1.2 Company may, from time to time, request that Consultant perform additional Services (“Additional Services”). If Consultant accepts such assignments, the parties shall agree to the parameters of the Additional Services to be undertaken by executing a new or revised Work Order substantially in the form of Exhibit A. Upon execution of such Work Order, the Additional Services shall be considered “Services” under this Agreement, and shall be performed in accordance with and subject to the terms and conditions of this Agreement and the Work Order specifying the Services to be performed. If either party desires that the Services should be modified, the parties shall negotiate, and memorialize any such modification agreed to, using the Change Request and Approval template attached as Appendix A to Exhibit A.
1.3 For the Services to be performed by Consultant as described in the Work Order, Consultant agrees to subscribe to the operational considerations as described in Exhibit B. In addition, for the Services to be performed by Consultant as described in the Work Order, in the event that Company agrees to reimburse Consultant for travel related expenses, Consultant agrees to subscribe to the Company travel and expense policy as described in Exhibit C.
1.4 It is expressly understood and agreed that Consultant is an independent contractor and not a partner or agent of Company Nothing contained herein shall constitute making or appointing Consultant the agent of the Company. Consultant shall not (a) hold itself out contrary to the terms of the Agreement; (b) enter into any agreement on behalf of the Company or bind the Company in any way; or (c) make any representation, act or commission contrary to the terms hereof.
2. TERM: This Agreement shall commence on the Effective Date and shall remain in effect for a period of three (3) years, unless earlier terminated pursuant to Section 11 hereof.
3. PERSONNEL; SOLICITATION:
3.1 Consultant's Services hereunder shall be rendered solely by its individual employees and/or individuals and/or entities that are not employees of Consultant but have been engaged by Consultant to perform Services hereunder on behalf of Consultant (individually and collectively, such individuals and entities are “Third Parties”), in each case as specified in the Work Order hereto (all of the foregoing being, collectively, the "Personnel"). Consultant represents all such Personnel are qualified to perform the Services and have been assigned by Consultant to work with Company pursuant to this Agreement. During the course of this Agreement, Consultant shall not remove (other than by discharge or discipline) without notification and the concurrence of Company (not to be unreasonably withheld or delayed), any of such Personnel that are designated as “Key Resources” in a Work Order from the performance of the Services. Company has the right to request removal of any of Consultant’s Personnel whom Company, in good faith, determines to be unqualified or not suitable to perform the Services, which request shall be promptly honored by Consultant. Proposed substitute personnel assigned to perform the Services shall be subject to Company’s concurrence (not to be unreasonably withheld or delayed). Consultant shall inform all Personnel that they will be required to comply, and Consultant shall ensure that all Personnel comply, with Company’s security and safety policies, rules and procedures. Consultant shall ensure that all Personnel are familiar with and comply in all respects with the provisions of Section 8 (Confidentiality / Proprietary Rights), Section 9 (Data Privacy and Information Security) and Section 10 (Ownership of Services and Other Materials) hereof, and Consultant represents and warrants to Company that it has and will maintain in effect a written agreement with the Personnel with provisions governing confidentiality, invention assignment, and data privacy that are at least as protective as those contained herein. Consultant shall be liable for any breaches by the Personnel of this Agreement.
3.2 Prior to placing any Personnel with Company, Consultant shall, subject to and in accordance with applicable Federal, state and local law, require that background checks have been conducted on all its Personnel. The background checks shall include the following:
(i) verification of employment history;
(ii) verification of driver’s license (or other government issued identification if an individual has not been issued a driver’s license), address and address history;
(iii) verification of social security number and that each individual is a U.S. citizen or properly documented person legally able to perform Services in the country where Services are to be performed;
(iv) verification of criminal history and that each individual has satisfactorily passed a criminal background check;
(v) verification that the individual is not on the Specially Designated Nationals (“SDN”) list maintained by the Office of Foreign Assets Control of the U.S. Treasury Department; and
(vi) verification of any other information reasonably requested by Company as specified and agreed to by the parties in a Work Order.
Consultant agrees that, subject to applicable Federal, state and local law, it shall not place any Personnel with Company unless such Personnel has consented to and/or satisfied the foregoing employment/placement requirements.
Consultant shall be responsible for all costs associated with the foregoing reference and background checks (other than the costs of any additional verifications requested by Company under Section 3.2(vi) above).
3.3 As between the parties, Consultant shall be responsible for any employment or other taxes imposed on Consultant, its employees or its Third Parties (including, without limitation, the Personnel) in respect of the Services by any Federal, State, local or other taxing authority. Consultant shall compensate its employees and/or Third Parties, if any, directly and Company shall have no obligation whatsoever to compensate any such employees and/or Third Parties (including, without limitation, the Personnel). As an independent contractor and not an employee, neither Consultant nor any of its employees and/or Third Parties shall be entitled to health, disability, welfare, pension, annuity, vacation or holidays or any other fringe benefits of Company based on or resulting from the performance by Consultant of duties hereunder or the compensation paid by Company to Consultant therefor.
3.4 In the case of a Solicitation Event (as defined below), Company shall pay Consultant the lesser of $25,000.00 or twenty percent (20%) of the applicable Consultant employee’s annual salary (at the time of such Solicitation Event, as documented by Consultant) as compensation for such Solicitation Event (the “Solicitation Event Payment”). “Solicitation Event” means that without Consultant’s prior written consent, for a period of 3 months from the date of the applicable Work Order, Company has, directly or indirectly, solicited for employment any individual identified on the section of the applicable Work Order entitled “Consultant Employees Subject to a Solicitation Event Payment”, subject to the following: (i) the foregoing restriction shall only apply to an individual while such individual is an employee of Consultant and for an additional period of six (6) months after such individual leaves the employee of Consultant if such individual left the employ of Consultant voluntarily, (ii) each individual identified in the Consultant Employees Subject to a Solicitation Event Payment section of a Work Order shall be in an executive or management level position and shall be considered by Consultant to be a key employee, (iii) Consultant may amend the Consultant Employees Subject to a Solicitation Event Payment section of a Work Order by providing notice thereof to Company from time to time, provided that at no time may the number of individuals identified exceed three (3), (iv) the foregoing shall not restrict Company from hiring any person who approaches Company for employment without any prior solicitation on Company’s part, (v) the foregoing shall not restrict any general solicitation of employment made by Company not targeted at Consultant’s employees, such as help wanted advertisements, job postings and headhunter searches, and (vi) Company shall only be in breach of this paragraph if Company both solicits and then employs an individual identified in the Consultant Employees Subject to a Solicitation Event Payment section of a Work Order.
The remedies set forth in this Section 3.4 constitute the sole and exclusive remedies of Consultant against Company and Company’s entire liability with respect to solicitation of Personnel.
3.5 Notwithstanding any other provisions of this Agreement, if it should be determined that Company is legally required to make deductions from any amounts owed to Consultant under this Agreement (e.g., withholding taxes, social security contributions, etc.), Company shall have the right to do so.
4. FEES; TAXES: As full compensation for Services and for all rights granted by the Consultant to Company, Company agrees to pay to Consultant and Consultant agrees to accept such fees, compensation and other amounts for Services (the “Services Fees”) as set forth in the Work Order. Subject to Section 1.3 above, Company shall reimburse Consultant for reasonable pre-authorized travel and lodging expenses incurred in connection with performance of the Services.
4.1 Taxes
4.1.1. Sales Taxes. The parties will cooperate in good faith to minimize taxes to the extent legally permissible. Each party shall provide and make available to the other party any resale, exemption, multiple points of use certificates and other exemption information reasonably required by the other party. The parties acknowledge that under currently applicable law the Service Fees to be received for the performance of the Services are not subject to may be exempt from any sales, use, or similar taxes (“Sales Taxes”) without such exemption certificates; provided, however, that exemption from Sales Taxes is determined by the sales tax regulations of the taxing jurisdiction at the time of sale. Therefore, Consultant agrees not to charge such taxes to the Company. However, iIf applicable law changes and or the Services Fees otherwise become subject to Sales Taxes, then either party that becomes aware of such law changes or event shall promptly notify the other party. Subsequently (a) Consultant shall timely invoice such amounts in the format required by applicable law, (b) the Company shall pay such amounts to Consultant, and (c) Consultant shall remit such amounts to the relevant tax authorities. If the Company timely provides to Consultant a valid Sales Tax exemption certificate, then Consultant shall not collect the taxes covered by such certificate. If it is subsequently determined that any Sales Taxes paid by the Company are not due under applicable law or that any such tax amounts are refundable to the taxpayer, then Consultant shall take reasonable actions to assist in obtaining such refund on behalf of the Company.
4.1.2 Withholding/Other Taxes. Payments of the Services Fees and other amounts by the Company to Consultant shall be made free and clear of and without deduction or withholding for or on account of any taxes unless such deduction or withholding is required by applicable law, in which case the Company shall (a) deduct or withhold the legally required amount from the payments, (b) remit such amount to the applicable taxing authority, and (c) deliver to Consultant documentation evidencing such remittance. If Consultant provides a properly completed California Form 590 Withholding Exemption Certificate, then the Company will not withhold California income tax with respect to payments made after receipt of the form. If a properly completed Form 590 is not provided, then the entire amount of any payments will be considered for services performed in California unless Consultant provides an allocation of the Services performed in California and outside of California on a California Form 587 Nonresident Withholding Allocation Worksheet before the Company makes any payments under this agreement, and the Company will withhold California income tax at a rate of 7% regarding any payments for services performed in California if the total amount of such payments is expected to exceed $1,500. Each party shall be responsible for taxes based on its own net income and for taxes on any property it owns or leases.
4.1.3. Each party shall be responsible for taxes based on its own net income, employment taxes of its own employees, and for taxes on any property it owns or leases.
- INVOICING: Consultant shall invoice Company in the manner specified under the Work Order, and all amounts in an invoices not subject to reasonable dispute by Company will be paid within thirty (30) days of Company’s receipt thereof such invoice.
5.1 Company shall notify Consultant in writing of any amounts in the applicable invoice that Company disputes in good faith and the reasons therefor within thirty (30) days of Company’s receipt of the applicable invoice. The parties shall use their commercially reasonable efforts to resolve any such dispute within sixty (60) days after Company provides such written notification of the dispute to Consultant.
5.2 Provided that Company has timely furnished written notification of the dispute to Consultant, Company shall have no obligation to pay the disputed amount specified in such notification pending resolution of the dispute. If the dispute is not resolved within such sixty (60) day period, or if the amounts in dispute at any time meet or exceed the equivalent of two (2) months’ average fees payable to Consultant, then Consultant may terminate the applicable Work Order without liability upon written notice thereof to Company.