Date
Company/Individual
Attn: Name
Address
City, ST Zip
Dear Name:
This letter is to set forth an agreement between Smartronix, Inc. (“SMARTRONIX”) and ______(the "Consultant") with respect to furnishing ______. For the purposes of this agreement Joe Gerczak shall be the designated Smartronix management point of contact (POC). SMARTRONIX and the Consultant agree as follows:
1. SMARTRONIX anticipates the use of Consultant as noted in the attached Statement of Work (SOW) during the term of this agreement, and the Consultant agrees to commit and furnish to SMARTRONIX consulting services from through completion of related activities and award .
2. When SMARTRONIX requests specific services from Consultant, SMARTRONIX hereby agrees to pay the Consultant monthly for such efforts for the actual hours worked at the rates noted below:
Position Starting Estimate Rate Hours Estimated
Date # Weeks per Week Total
Estimated labor total: $
Travel, lodging
& Per Diem Est. $
ODCs * Not included in estimate but billed at actual cost. $______
Total Price $
Consultant shall furnish a statement to SMARTRONIX with their invoice specifying the services rendered and the associated dates and times. Payment terms are NET 30 days from the receipt of an acceptable invoice.
3. Travel and per diem expenses for Consultant travel will be reimbursed in accordance with Joint Travel Regulations (http://www.dtic.mil/perdiem/pdrform.html). Consultant will be reimbursed for local travel to include mileage, parking, and metro passes. All domestic air travel will be coach class. All travel shall be approved in advance by the SMARTRONIX POC.
4. During the term of this agreement, services will be provided subject to the overall direction of SMARTRONIX’ POC, and other personnel which he/she may so designate.
5. Consultant will not during the term of this agreement serve any interests or do any act or thing which might conflict with the interests of SMARTRONIX or any subsidiary. The primary purposein this engagement is to ensure that Smartronix prepares a high quality proposal to the procurement.
6. With respect to proprietary information disclosed by SMARTRONIX to Consultant and by Consultant to SMARTRONIX under this agreement, both parties covenant and agree that it will keep in confidence, and prevent the disclosure to any person or persons outside its organization or to any unauthorized person or persons, any and all information which is received from the other; provided however, that a receiving party shall not be liable for disclosure of any such information if the same:
A. Was in the public domain at the time it was disclosed, or
B. Becomes part of the public domain without breach of this Agreement, or
C. Is disclosed with the written approval of the other party, or
D. Is disclosed after 3 years from receipt of the information, or
E. Is or was independently developed by the receiving party, or
F. Is or was disclosed by the disclosing party to a third party without restriction, or
G. Is disclosed pursuant to judicial action or Government regulations or direction, and the receiving party has notified the disclosing party thirty (30) days prior to such disclosure and has exercised reasonable effort to legally avoid such disclosure, or
H. Is rightfully and lawfully obtained by the receiving party from a third party which has an unrestricted right to disclose the Proprietary Information.
“Proprietary Information” shall include but not be limited to performance, sales, financial, contractual and special marketing information, ideas, technical data and concepts originated by the disclosing party and considered to be protected by the Trade Secrets Act, 18 U.S.C. 1905, and exempt from disclosure under the Freedom of Information Act (FOIA) 5 U.S.C. 552, paragraphs (b)(1), (3), and (4); and which is furnished pursuant to this NonDisclosure Agreement and appropriately identified as being proprietary when furnished.
Any Proprietary Information provided by one party to the other shall be used only for the purpose of this Agreement, and shall be, upon request at any time, returned to the disclosing party. If either party loses or makes unauthorized disclosure of the other party’s protected information, it shall notify such other party immediately and take all steps reasonable and necessary to retrieve the lost or improperly disclosed information. Either party, however, may disclose Proprietary Information to the United States Government during the term of this Agreement for purposes directly related to the C-TNOSC procurement, but only if marked with the appropriate restrictive legend in accordance with Federal Acquisition Regulation (FAR 52.215-1) or Department of Defense FAR Supplement (DFARS 252.227-7013) as applicable.
The standard of care for protecting Proprietary Information imposed on the party receiving such information will be that degree of care the receiving party uses to prevent disclosure, publication or dissemination of its own Proprietary Information. Neither party shall be liable for the inadvertent nor accidental disclosure of Proprietary Information if such disclosure occurs despite the exercise of the same degree of care as such party normally takes to preserve its own such data or information.
7. Consultant warrants that they have the right to enter into this agreement and that the services called for under this agreement do not conflict with any law, regulation or administrative rule of the United States Government or any of its departments or agencies, including, without limitation, regulations governing the civilian work activities of former government personnel.
8. Consultant shall indemnify and hold SMARTRONIX harmless from any and all claims and liabilities arising out of Consultant's failure to comply with the terms of this agreement or directly or indirectly caused by Consultant's negligent performance of services hereunder.
9. Notwithstanding the expiration of the term of this agreement or its termination for any reason whatsoever, Consultant and SMARTRONIX mutually agree that the respective rights and obligations set forth in paragraphs 5, 6, 7, 8, and 9 of this agreement (excepting where such rights and obligations are expressly limited to the period of this agreement) shall continue in full force and effect until they have been completely exercised or fulfilled, as the case may be.
10. Consultant agrees that all materials and work products that it develops under this Agreement, including software and documentation, shall be considered “Works for Hire.” All Works for Hire shall be owned exclusively by SMARTRONIX or its Customer, and Consultant will have no property or other proprietary rights in them. Works for Hire shall be turned over to SMARTRONIX promptly upon request. Consultant agrees to assign to SMARTRONIX all right, title, and interest in and to all Works for Hire created by Consultant hereunder. Additionally, Consultant agrees to take all acts and execute all documents reasonably necessary in order to affect such assignment. Consultant'spre-existing tools, techniques and other intellectual property that Consultant uses in providing services under this Agreement("pre-existing work")shall not be considered "Works for Hire" and shall be owned exclusively by Consultant or its licensor, as the case may be, provided that Consultant clearly marks all such pre-existing works.
11. Without prejudice to Consultant’s liability to indemnify Smartronix, Consultant shall procure at its expense and maintain for the duration of the Agreement, the insurance policies described below with financially responsible insurance companies, reasonably acceptable by Smartronix, with policy limits not less than those indicated below.
Comprehensive General Liability: $500,000 per occurrence, per person (bodily injury).
$100,000 per occurrence (bodily injury)
Professional Liability: $1,000,000.00 per occurrence and aggregate providing coverage for claims arising out of the performance of professional services, resulting from error, omission, or negligent acts.
Prior to the commencement of any work, Consultant shall provide Smartronix certificates of insurance evidencing the insurance policies above. Consultant, or its insurers, shall provide thirty (30) days advance written notice to Smartronix in the event of cancellation or material modification of any policy. Failure of Smartronix to demand such certificates or to identify any deficiency in the insurance provided shall not be construed as or deemed to be a waiver of Consultant’s obligations to maintain the above insurance coverage.
12. This agreement contemplates services to be provided by Consultant and is not assignable, but it does not constitute an employment relationship between SMARTRONIX and Consultant. The parties to this Contract intend that the relationship hereby created is that of employer-independent contractor. Neither Consultant nor any agent or employee of Consultant shall be deemed to be the employee or agent of SMARTRONIX. None of the benefits provided by SMARTRONIX to its employees, including but not limited to compensation insurance and unemployment insurance, are available to Consultant or the employees or agents of Consultant. Consultant shall be solely and entirely responsible for his acts and for the acts of his agents or employees during the performance of the Contract.
13. Attachment A, Statement of Work is enclosed as part of this agreement.
If the understandings hereinabove set forth are satisfactory to you, kindly execute in the space provided below and return it to my attention, whereupon this letter and the executed counterpart shall constitute a binding agreement between us.
Sincerely,
SMARTRONIX, Inc.
Frederick Schutz
Director of Contracts
The foregoing is confirmed, accepted, and agreed to as of the __th day of ______2006.
By:
Consultant
TIN or Social Security Number ______
ATTACHMENT A, STATEMENT OF WORK