Projject Consultancy and Service Agreement by Gupta

PROJECT CONSULTANCY AND SERVICE AGREEMENT

Ch. 73] PROJECT CONSULTANCY AND SERVICE AGREEMENT?FORMS 921
? Were project objectives and deliverables/outputs achieved?
? Was the project completed on time and within budget?
? Was the quality of work satisfactory?
? Was there an appropriate amount of skills transfer from the
consultant to officials?
On completion of a consultancy, it is also useful for the Department, as
part of its wider evaluation of the project, to discuss with the consultants.
17.  What should normally be included in the Consultancy Project
Contract.
? a clearly specified fee for the project;
? cost structure, time scale(s) and payment arrangements ? the
latter closely tied to the deliverables (outputs) of the project;
? ownership of deliverables/reports/software etc.;
? an  ?early termination? clause ? this clause should state that where,
at any time during the project, the work, being undertaken by the
consultants, is found to be unsatisfactory by the client Department
? the project may be terminated early, without the Department
being liable for the full costs;
? a schedule of tasks and deliverables (outputs);
? the requirement for Department of Finance sanction, where
appropriate;
? definitions of the terms used (i.e. department, contract, daily fee
etc.);
? project management/reporting arrangements which must be fol-
lowed, including mechanism for monitoring skills transfer;
? a no poaching clause, where relevant (e.g. work is undertaken on
the understanding that consultants will not make offers of employ-
ment to or engage any employee of the Department unless they
have first obtained the Department?s written consent for a period
to be specified in the contract);
? a statement in relation to confidentiality.
FORMS FORMS FORMS FORMS FORMS
1 1 1 1 1
Project Consultancy Agreement for setting up Super Project Consultancy Agreement for setting up Super Project Consultancy Agreement for setting up Super Project Consultancy Agreement for setting up Super Project Consultancy Agreement for setting up Super
Thermal Power Project on turn-key basis Thermal Power Project on turn-key basis Thermal Power Project on turn-key basis Thermal Power Project on turn-key basis Thermal Power Project on turn-key basis
THIS AGREEMENT made this???.. day of????. Two thousand??.
BETWEEN MESSERS NORTON THERMAL POWER CORPORATION LIMITED,  a922 CONVEYANCING, DRAFTING & DEEDS [Ch. 73
Company incorporated under the Companies Act, 1956 having its regis-
tered office at ????????????. (hereinafter referred to as
?OWNER? or  ?NTPC? which expression shall include its administrators,
successors, executors and permitted assigns) of the  ONE PART AND
MESSERS GRAHAM RICHARD SHIPBUILDERS & ENGINEERS LIMITED, a Com-
pany incorporated under the Companies Act, 1956, having its registered
office at ????????. (hereinafter referred to as the  ?CONTRACTOR?
or  ?GRSE?, which expression shall include its administrators, successors,
executors and permitted assigns of the OTHER PART.
WHEREAS NTPC desirous of setting up its Super Thermal Power Project
at ????. with an ultimate capacity of 2260 MW (hereinafter called ?the
Project?) had invited bids on domestic competitive bidding basis for design,
engineering, manufacture, shop-testing, inspection and testing at
manufacture?s works, packing, despatch, transportation, erection including
all associated electrical, civil and structural works, testing and commission-
ing including performance testing and handing over of Coal Handling Plant
(Part-A) Package for the second stage of the Project  with the capacity of
2 x 500 MW, as per its bid specification No.??..
AND WHEREAS GRSE had participated in the above referred Domestic
Competitive Bidding by putting forward their Offer or Proposal (read with
subsequent amendments/modifications/alteration/deletion/addition and/or
deviations, being the integral part of the Contract Documents as enumer-
ated in the SCHEDULE ? ?A? hereto).
AND WHEREAS NTPC had accepted the aforesaid Offer/Proposal of GRSE
and issued a Letter of Award No.??, dated??.. on terms and conditions
contained therein (read with all other documents referred to therein as also
mentioned in the SCHEDULE ?A? hereto and hereinafter  referred to as ?the
Contract Documents?.
AND WHEREAS as per General Terms and Conditions of Contract the
parties hereto are required to execute a formal agreement in line with the
Contract documents and the Letter of Award referred to herein.
NOW THEREFORE THIS AGREEMENT WITNESSETH as follows:
1. Definitions.?Unless otherwise provided herein the terms or expres-
sions used in the context shall be construed to convey the same meaning
as assigned to them respectively in the Contract Documents mentioned in
the SCHEDULE ?A? hereto.
2. Award of Contract.?In consideration of payment of an all-inclusive
price or lump-sum contract price hereinafter mentioned for the complete
scope of works as described in its Letter of Award No. ??? dated ??..,
read with the Contract Documents and also in Article 6 mentioned below
and upon the terms and conditions, including all modifications, alterations,
variations or revocations thereof, as fully described in the ContractCh. 73] PROJECT CONSULTANCY AND SERVICE AGREEMENT?FORMS 923
documents enumerated in the Schedule ? ?A? annexed hereto, NTPC has
awarded to GRSE the Letter of Award No.???., dated???.., forming
integral part of the Contract documents.
3. Contract Document.
3.1.  The term ?Contract Documents? shall mean all such documents as
are enumerated in clause 2.1(a) to (e) of the General Terms and Conditions
of Contract of the Bid documents and shall include the documents
described in the SCHEDULE  ?A? hereto and also such other documents,
minutes, correspondences etc. forming mutual consent over issues relating
to this contract either inadvertently or otherwise not included in the
SCHEDULE ? ?A? hereto but forming integral part of this agreement.
3.2.  The several documents forming part of the Contract documents are
to be taken as mutually explanatory of one another and in case of
repugnancy or inconsistency or conflict between the provisions contained
in the same document or between any two or more documents the
provisions which have been mutually agreed upon or shall be deemed to
have been mutually agreed upon by and between the parties shall prevail.
4.  Letter of Award.
4.1. The Letter of Award shall mean NTPC?s Letter of Award No.  ????
dated??? forming integral part of Contract Documents and this Agree-
ment and is designated as Volume VII in the SCHEDULE ? ?A? hereto.
5. Construction of Agreement.?This agreement is subject to the
terms, conditions and stipulations embodied in the relevant Bid documents,
Price-bid proposal and the Letter of Award (including any agreed variations
and/or modifications thereof and also other Contract Documents) and it
shall supersede all such provisions of the Contract Documents as are
repugnant to each other or amount to unilateral acts, conditions or
stipulations inconsistent with the Bid documents or the Price-bid proposal
(including any agreed variations and/or modifications thereof) made by
either of the parties, or have not been specifically agreed upon.
6.  Scope of Work.
6.1.  The scope of work under this Agreement shall include design,
engineering, manufacturing, shop-fabrication, assembly, testing and in-
spection at manufacturer?s works, packing and despatch of equipments/
materials including Mandatory Spares under Coal Handling Plant (Part ?
A) Packing and supply of Special Tools and Tackles (if any) for ?????.
Super Thermal Power Project, Stage II (2 x 400 MW), more fully described
in the Contract Documents entitled ?Technical Specifications? designated
as Volume II in the SCHEDULE ? ?A? hereto.
6.2. The scope of the work shall also include supply of all such items
which are not specifically mentioned in the Contract Documents, but which
are needed to make the equipment/system complete in all respect for its
safe, reliable, efficient and troublefree working/operation, unless otherwise924 CONVEYANCING, DRAFTING & DEEDS [Ch. 73
specifically excluded in the specifications under ?Exclusions? or Letter of
Award.
6.3. In the event of the NTPC requiring any variation, a reasonable and
proper notice shall be given to GRSE to enable it to work its arrangements
accordingly, and in cases where goods or materials are already prepared
or any design, drawings or pattern made or work done requires to be
altered, a reasonable and agreed sum in respect thereof shall be paid to
the Contractor/GRSE by the Owner/NTPC.  GRSE shall carry out such
variations and be bound by the same conditions, as though the said
variations occurred in the Contract Document and the Contract Price shall
be adjusted at the rates and the price provided for the original quantities
in the Contract.
6.4. If any alterations, amendments, omissions, suspensions or varia-
tions of the Works would, in the opinion of the Contractor/GRSE, if carried
out, prevent the Contractor/GRSE from fulfilling any of its obligations or
guarantee under the Contract, the Contractor/GRSE shall notify the Owner/
NTPC thereof in writing and the Owner/NTPC shall decide forthwith,
whether or not the same shall be carried out and if the Owner/NTPC
confirms its instructions, Contractor?s/GRSE?s obligations and guarantee
shall be modified to such an extent as may be mutually agreed. Any agreed
difference in cost occasioned by any such variation shall be added to or
deducted from the Contract prices as the case may be, on the basis of the
guidelines contained in the Contract Documents, PROVIDED HOWEVER in
cases where goods or materials are already prepared or any design,
drawings or pattern made or work done requires to be altered, a reasonable
and agreed sum in respect thereof shall be paid to the Contractor/GRSE.
6.5. The time for the completion of the work shall be altered in the
proportion that the altered, added or substituted work bears to the original
contract work.
7.  Suspension of Work.
7.1.  NTPC reserves the right to suspend and reinstate execution of the
whole or any part of the Works without invalidating the Provisions of the
Contract. The time for completion of the Works will be extended for a period
equal to duration of the period of suspension.
7.2.  Any necessary and demonstrable costs incurred by GRSE as a
result of such suspension of the Works will be paid by NTPC, provided such
costs are substainted to the satisfaction of NTPC.  NTPC shall, however,
not be responsible for any liabilities if suspension or delay is due to some
default on the part of GRSE or its sub-contractor.
8.  Time Schedule.
8.1. Time is the essence of the Contract and schedules shall be strictly
adhered to.  The Contractor/GRSE shall perform the work in accordance
with the agreed schedule as given in the Contract Documents, subject to
Force Majeure conditions as provided hereinafter.Ch. 73] PROJECT CONSULTANCY AND SERVICE AGREEMENT?FORMS 925
8.2. In case  the Contractor?s/GRSE?s performance is delayed due to
any act of omission on the part of the Owner/NTPC or its authorised agents,
then the Contractor/GRSE shall be given due extension of time for the
completion of the Works, to the extent such omission on the part of the
Owner/NTPC has caused delay in the Contractor?s/GRSE?s performance
of its work.
8.3. In addition, the Contractor/GRSE shall be entitled to claim demon-
strable and reasonable compensation if such delays have resulted in any
increase in the cost. The Owner/NTPC shall examine the justification for
such a request for claim, and if satisfied, the extent of compensation shall
be mutually agreed depending upon the circumstances at the time of such
an occurrence.
8.4. The time for the completion of the work shall also be subject to the
provisions of Clause no. 6.5 and 7.1 of these presents.
9.  Contract Price.?The total lump sum contract price for the entire
scope of work under the Cotnract, as per break-up shown in clause 4.0 of
the Letter of Award is Rs.???.. (Rupees ???? only).
9.1. It is clealry understood that the total consideration for the Contract
has been broken up into various component only for the convenience of
payment of advance under the Contract and for the measurement of
deviations or modifications under the Contract.
10. Construction of Contract.
10.1.  Notwithstanding the identification of the entire work, under the
Coal Handling Plant (Part-A) package for…..?? Super Thermal Power
Project, Stage II (2 x 500 MW), as divisible   ?Supply Contract? and  ?Erection
Contract?, GRSE shall be solely responsible for the successful completion
of the entire work and for performance of the entire system as per Contract
Documents described in the SCHEDULE ? ?A? hereto.
10.2.  It is expressly understood and agreed by GRSE that the contract
is awarded to GRSE on single source responsibility basis and breach in
any portion or part of one contract shall be construed as a breach of the
other contract, which will confer on NTPC the right to terminate the other
contract at the risk and cost of GRSE.
11. Quality Plans.
11.1.  GRSE is responsible for the proper execution of the Quality Plans
as and when approved by  NTPC.  Quality Assurance Programme and
Procedures as contained in the Contract Documents shall be strictly
followed by GRSE.
11.2.  GRSE agrees to provide NTPC with the necessary facilities for
carrying out inspection, quality audit and quality surveillance of GRSE?s and
its sub-contractor?s Quality Assurance Systems and manufacturing activi-
ties in line with the Contract Documents.926 CONVEYANCING, DRAFTING & DEEDS [Ch. 73
11.3. It is expressly agreed to by  GRSE that the quality tests and
inspection by NTPC shall not in any way relieve GRSE of its responsibilities
for quality standards, performance guarantee and its other obligations
under the Contract.
11.4. GRSE agrees to submit Quality Assurance Documents package
to NTPC for review and record after completion of despatch of materials
and within the time period scheduled in the Contract Documents.
12. Performance Guarantee & Liquidated Damages.
12.1. The Contractor/GRSE guarantees that the equipment package
under the contract shall meet the ratings and performance parameters, as
stipulated in the Contract Documents and in the event of any deficiencies
found in the requisite performance figures, the Owner/NTPC may at its
option reject the equipment package or alternatively accept it on such terms
and conditions as deemed fit and proper and subject to levy of the liquidated
damages in terms of the Contract. The amount of liquidated damages as
leviable shall be in accordance with the Contract Documents and without
any limitation.
12.2.  It is expressly agreed to by the Contractor/GRSE that the Contract
Performance Guarantee shall in no way be construed to limit or restrict the
Owner?s/NTPC?s right to recover the damages/compensation due to
shortfall in the equipment performance figures as stated in the Contract
Documents.  The amount of damages/compensation shall be recoverable
either by way of deduction from the Contract Price, Contract Performance
Guarantee and/or otherwise.
12.3.   The Contract Performance Guarantee furnished by the Contrac-
tor/GRSE is irrevocable and unconditional and the Owner/NTPC shall have
the powers to invoke it notwithstanding any dispute or difference between
the Owner/NTPC and the Contractor/GRSE pending before any Court,
Tribunal, Arbitrator or any other Authority.
13. Waiver & Estoppel.
13.1.  The failure of either party to enforce at any time any of the
provisions of this Contract or any rights in respect thereto or to exercise
any option herein provided, shall in no way be construed to be a waiver of
such provisions, right or options or in any way to affect the validity of the
Contract. The exercise by either party of any of its rights herein shall not
preclude or prejudice either party from exercising the same or any other
right it may have hereunder.
14. Force Majeure.
14.1.  The Contractor/GRSE or the Owner/NTPC shall not liable for
delays in performing its obligations resulting from any force majeure cause
as referred to and/or defined in the Contract Document.
14.2.  The date of completion will, subject to force majeure conditionsCh. 73] PROJECT CONSULTANCY AND SERVICE AGREEMENT?FORMS 927
be extended by a reasonable time even though such cause may occur after
Contractor?s/GRSE?s performance of its obligations has been delayed for
other causes.
15. Settlement of Disputes.
15.1.   It is specifically agreed that all disputes or differences whatsoever
arising out of this Contract between the parties whether during the progress
of the work or after its completion, shall be settled in accordance with the
stipulations of Office Memorandum No. ????.. dated ?? of Govern-
ment of India, Ministry of Industry, Department of Public Enterprises.
16. Commencement of Contract.
16.1.  This agreement is supplemental to the Letter of Award No.  ???.
dated….?. and shall be considered as having come into force from the date
of acceptance of the Letter of Award.
17. Governing Laws & Jurisdiction of Contract.
17.1.  This Contract shall be governed by the Indian Laws and Rules
as amended from time to time.  The Courts of KOLKATA alone shall have
exclusive jurisdiction in all matters arising under this Contract.
18. Notice of Default.
18.1.  Notice of default given by either party to the other party under the
Contract shall be in writing and shall be deemed to have been duly and
properly served upon the parties hereto if delivered against acknowledge-
ment or by telex or by registered mail with acknowledgement due addressed
to the signatories at the addresses mentioned above.
SCHEDULE ?A? ABOVE REFERRED TO :
(CONTRACT DOCUMENTS)
Contract Documents shall mean and include the following:
1. NTPC?s Bid Documents in respect of Specification No.??? issued
vide its letter No.???? dated??.., read in conjunction with the
amendments/clarifications issued thereto, consisting of:
(a) Invitation to Bid including Letter forwarding the Bidding Documents
Ref.  No.????.. dated ???., Instruction to Bidders, General
Terms & Conditions of Contract and all other Sections, entitled
?Conditions of Contract? along with its Amendment/Errata No.  1.
This document is annexed and is designated as Volume I.
(b) Special Conditions of Contract along with its Amendment No.  1
issued vide letter No.??? dated ??.. This document is an-
nexed hereto and is designated as Volume IA.
(c) NTPC?s Technical Specifications along with its Amendment No.  1,
2, 3 & 4 to Technical Specifications issued vide letter No.??..
dated?…….? This document is annexed hereto and is desig-
nated as Volume II.928 CONVEYANCING, DRAFTING & DEEDS [Ch. 73
(d) Clarifications to bid documents issued  vide Letter No.?? dated?.
This document is annexed hereto and is designated as Volume III.
2. GRSE?s proposal submitted  vide letter No.?.......? dated....??
along with Proposal sheets, Data requirements, Payment terms, Work
schedule, etc., submitted by GRSE entitled as ?Proposal?. This document
is annexed hereto and is designated as Volume IV.
3. Correspondence between the GRSE and NTPC subsequent to the
date of opening of the bid and up to the date of issue of the Letter of Award
which has been specifically referred to in the Letter of Award.  This document
is annexed hereto and is designated as Volume V.
4. Agreed Minutes of the meeting held during the period from???. to
?......... between NTPC and GRSE. This document is annexed hereto and
is designated as Volume VI.
5. Quality Plans (Quality Plans as and when finalised shall form an
integral part of the Contract).
6.  Network (PERT Chart). This document is annexed hereto and is
designated as Volume VIII.
7. Letter of Award No.?????. dated?????.., and any other
document or documents referred to therein but not included in Serial Nos.
1 to 6 of this Schedule ?A?.
IN WITNESS WHEREOF the parties hereto through their duly authorised
representatives have executed these presents (execution whereof has
been approved by the competent authorities of both the parties) on the day
month and year first above written.
For and on behalf of NTPC
(Owner?s Signature)
(Printed Name)
SIGNED SEALED AND DELIVERED by
M/s.   NORTON  THERMAL POWER CORPORATION LTD.  through their authorised
representative  SRI??????..............??????........................
??????......? (Designation).
In the presence of
WITNESSES:
1.
2.
For and on behalf of M/s. GRSE
(Contractor?s Signature)
(Printed Name)Ch. 73] PROJECT CONSULTANCY AND SERVICE AGREEMENT?FORMS 929
SIGNED SEALED AND DELIVERED by
M/s.   GRAHAM RICHARD SHIPBUILDES & ENGINEERS LTD.  through their
authorised representative SRI ????????…………………….????.
?????……….?? (Designation)
In the presence of
WITNESSES:
1.
2.
2 2 2 2 2
Tie-up Agreement for Project Consultancy Services on Tie-up Agreement for Project Consultancy Services on Tie-up Agreement for Project Consultancy Services on Tie-up Agreement for Project Consultancy Services on Tie-up Agreement for Project Consultancy Services on
case-to-case basis case-to-case basis case-to-case basis case-to-case basis case-to-case basis
THIS AGREEMENT made this ??.?. day of ?..??. Two thousand
????…..? between MESSERS GRAHAM RICHARD SHIPBUILDERS & EN-
GINEERS LTD., a Company incorporated under the Companies Act, 1956
having its registered office at ????? (hereinafter called ?GRSE? which
term or expression shall unless repugnant to the subject or context be
deemed to include its successors-in-interest, executors and permitted
assigns) of the ONE PART AND MESSERS NORTH INDIAN COAL CORPORATION
LIMITED, a Company incorporated under the Companies Act, 1956, having
its registered office at ??…??? (hereinafter called  ?NICCO? which term
or expression shall unless repugnant to the subject or context be deemed
to include its successors-in-interest, executors and permitted assigns) of
the OTHER PART.
WHEREAS NICCO intends to enter into contracts with diverse Purchasers
for execution of turn-key projects in respect to Design, Engineering,
Manufacture, Erection and Commissioning of Coal Handling Plants for
Thermal Power Projects (hereinafter called ?the PROJECT?).
AND WHEREAS GRSE is in possession of extensive technical know-how,
processes, formulae and secret techniques and technical information
concerning the planning, design, engineering, construction, commission-
ing and operation of such Projects and has at its disposal skilled technical
personnel to assist and intending associate with such technical know-how
and technical information for execution of such projects.
AND WHEREAS the NICCO is desirous of acquiring from GRSE the said
technical know-how, technical information and assistance for the purpose
of execution of its various projects for diverse Purchasers and the GRSE
is willing and agreeable to become an associate with and assist NICCO
in the execution of such Projects by providing to NICCO feed-back
consultancy services and the necessary technical know-how for the system
G : CDD (Vol. 8) ? 59930 CONVEYANCING, DRAFTING & DEEDS [Ch. 73
design, detailed engineering and necessary checking and approval of
drawings and documents as per the respective scopes of work defined in
the SCHEDULE marked as ANNEXURE hereto.
NOW TEHREFORE THIS AGREEMENT WITNESSETH and it is hereby agreed
by and between the parties hereto as follows:
1. For the purpose of this Agreement, the terms set forth hereunder
(either in the singular or plural form) are defined to mean, unless the context
requires otherwise, as follows:
(a) ?The Project? means Coal Handling Plants of 1000 TPH capacity
and above for Thermal Power Projects;
(b) ?The Technical know-how? means and includes?
(1) engineering and manufacturing information available with
GRSE relating to system design, planning, construction,
erection, commissioning, testing of such plants as well as
information relating to materials used in the manufacture
thereof and the manufacturing or engineering technique of
the GRSE being applicable to the operations of the NICCO;
(2) design, engineering blueprints, plant layout, plans, specifica-
tions, drawings, data, information and documents relating to
the said Project or the plant utilities;
(3) technical information and other data whether patented, pat-
entable or not, relating to the said Projects, processes,
formulae, design or technique of which the GRSE is the
proprietor;
(4) any other technical information or instructions as may be
considered necessary for the purpose of the installation of the
said projects.
(c) The term  ?improvements? means future innovations, improve-
ments or modifications relating to the design, production methods,
manufacture and testing process of the said projects;
(d) The term  ?effective date of the agreement? means the date on
which this agreement is executed or deemed to have been
executed by the parties hereto;
(e) The term ?date of commencement period of the order? means the
date of receipt of technically and commercially clear order by
GRSE from NICCO.
2. On and from the effective date of this agreement until its determination
in the manner provided hereinafter for all tenders in which NICCO will
participate or submit its bids, GRSE shall issue specific tie-up letter of
consent on case-to-case basis addressed to NICCO signifying its assent
to the above association within the scope of the work agreed hereunder
in the performance of the contract by NICCO, in the event an order will beCh. 73] PROJECT CONSULTANCY AND SERVICE AGREEMENT?FORMS 931
placed by NICCO on GRSE after receipt of order by NICCO from the
prospective Purchasers.
3. The GRSE shall as soon as may be reasonably practicable or as might
be stipulated in the order to be placed by NICCO upon GRSE and at the
written request of the NICCO in that behalf, transmit its technical information
to the NICCO as set forth in clause 4 hereinafter as also those specified
in the ANNEXURE I hereto.
4. (1) During the term of this agreement and so long as the NICCO shall
duly perform and observes its obligations hereunder, GRSE shall provide
the NICCO with such further information and technical know-how and
improvements pertaining to the planning, layout, design, engineering and
commissioning of the projects or concerning modifications or improve-
ments in or to the said technical know-how or the said project.
(2) Nothing contained in sub-clause (1) of this Clause shall be construed
as requiring the GRSE to furnish or disclose to the NICCO any information
or data which is prohibited from transferring or disclosing by virtue of any
restriction or obligation under other agreements or which the GRSE is
prohibited from transferring or disclosing under the laws and regulations
for the time being and from time to time in force in the country.
(3) Subject to respective scopes of work agreed hereunder and
contained in the ANNEXURE-I hereto, the time and extent of the supply
or transfer of the technical information and improvements will be mutually
determined by the progress of the NICCO in the process of execution of
its various projects from time to time.
(4)  The GRSE confirms that the technical information that will be
transmitted by the GRSE under this agreement is sufficient to permit the
execution of the said projects for its diverse clients by NICCO as contem-
plated under the provisions of this agreement.
5. Subject to the availability of sufficient surplus capacity of the GRSE,
the GRSE undertakes further developments in the original technology in
the design and layout and their application in the implementation of the
various projects by NICCO and to render necessary technical advice and
assistance for the adaptation of the designs, drawings and other technical
data furnished by the GRSE to the NICCO according to the Indian
Standards.
6. (1) The GRSE shall depute at the request of the NICCO its trained
technical personnel as and when required by the NICCO to assist the
NICCO in the setting up of the projects and/or commissioning of the plant
as also to train the technical personnel of NICCO, if necessary.
(2) The NICCO shall bear and pay all travelling, living and medical
expenses of all or any of the personnel so deputed by the GRSE at the rate
as may be settled between the parties at the time or times of placing specific
order/s on case-to-case basis.932 CONVEYANCING, DRAFTING & DEEDS [Ch. 73
(3) The technical personnel so deputed by the GRSE shall remain
employees of the GRSE but while working in the project site of the NICCO
or any other third party, they shall be subject to all the rules and regulations
of the NICCO or the third party as applicable to their respective employees.
7.  (1)  The NICCO shall communicate to the GRSE any new technological
improvements in the method or process of project technology received by
NICCO from the GRSE and the GRSE shall have the right to use such
modifications or improvements in connection with its own operations in
other field.
(2) If the NICCO shall obtain any patents or designs on such improve-
ments or modifications in the original methods and technology received
from the GRSE, it shall, as and when called upon by the GRSE, grant to
the GRSE licence under such patents and designs on such terms and
conditions as may be mutually agreed upon.
(3) The NICCO shall not, without the consent of the GRSE, grant any
licence to a third party under the said patents except to his subsidiaries or
its parent company or other subsidiaries of such parent company.
8. GRSE hereby covenants with NICCO.
(1) that the GRSE shall, provided that the GRSE is entitled so to do,
communicate to the NICCO any modifications, improvements or
additions to the design which the GRSE may acquire invent make
or discover and shall save as hereinbefore provided permit the
NICCO to use and apply the same in the execution of the contract
or contracts that it may enter into with different prospective clients
wherein GRSE will participate;
(2) that the GRSE shall from time to time at the request and expense
of the NICCO send one or more of its employees to the work site
of the NICCO for the purpose of demonstrating the use of any
modifications, improvements or additions to the processes as
aforesaid which the GRSE shall have acquired, invented, made or
discovered or the use of new materials.
9. NICCO hereby acknowledges the GRSE?s exclusive rights.
(a) to the layout plans, designs, technical know-how, date and speci-
fications agreed to be provided hereunder to NICCO;
(b) to all copyrights, trade names and patents now or hereafter applied
for or granted in connection therewith; and
(c) to use and the right to licence others to use the said layout plans,
drawings, designs, technical data and information accruing here-
under to the use thereof by NICCO.
10. The NICCO recognises and acknowledges the exclusive right of
GRSE to grant this licence and to grant licences to others to use the method
and to conduct business with the technical know-how herein agreed to be
provided to NICCO.Ch. 73] PROJECT CONSULTANCY AND SERVICE AGREEMENT?FORMS 933
11. Subject as hereinafter provided the know-how made available
pursuant to this agreement shall be retained in strict confidence by NICCO
and anyone using it under this agreement and shall not be disclosed to or
used by any other party, person, company or otherwise for any purpose
other than the planning, design, engineering, construction, start-up or
operation of the plant and expansion thereof.   The know-how may be
disclosed to officers, employees, contractors and sub-contractors of NICCO
to the extent required in each particular instances for the performance of
planning, design, engineering, construction or operation as the case may
be PROVIDED that in each case appropriate secrecy shall be maintained
including procedures respecting the transmission of information visits to the
plant and related matters as may be reasonably required by GRSE to
preserve the confidentiality of and GRSE?s proprietary rights in the
technical know-how and to ensure that the know-how shall not be utilised
except as required in the plant and expansion thereof. In the event of a
breach of threatened breach by any party to the above-mentioned condition
NICCO shall take all reasonable steps to prevent any such person from
disclosing or using such know-how except as authorised herein. Notwith-
standing the above, GRSE shall give unrestricted consent upon application
in writing by NICCO to the disclosure and use of documents and information
at any time lawfully required by NICCO or by contractors and sub-
contractors who shall have lawfully received know-how under the foregoing
provisions of this clause in connection with planning, design, engineering
and construction of the plant from a third party pursuant to a bona fide
licence agreement to the extent that the said agreement shall give NICCO
or any such contractor or sub-contractor the right to disclose and use such
documents and information. The application to GRSE shall describe the
general circumstances of the said licence agreement and the manner in
which the documents and/or information overlaps with the know-how.
12.  The provision of clause 11 of this agreement relating to confidentiality
shall survive the termination of this agreement howsoever caused.
13. All documents prepared by GRSE in connection with the works are
the property and copyright of the GRSE and NICCO shall not be entitled,
either directly or indirectly, to make use of such documents for carrying out
of any work beyond the scopes of work to which this agreement relates,
without the prior approval of GRSE.
14.  The NICCO shall not after the termination of this agreement
howsoever the same may be terminated, practice or employ or permit or
cause to be practised or employed the technical know-how disclosed by
the GRSE to the NICCO or the technical knowledge under the provisions
of this agreement.
15. The GRSE shall have the right to terminate this agreement and all
rights and licences hereby granted or to be granted upon happening of one
or more of the following events:934 CONVEYANCING, DRAFTING & DEEDS [Ch. 73
(a) if the NICCO shall make default in the payment of any monies
payable hereunder as and when the same shall become due; or
(b) if the NICCO shall become insolvent; or
(c) if the NICCO shall go into liquidation whether compulsory or
voluntary except for the purpose of amalgamation or reconstruc-
tion; or
(d) if the NICCO shall commit any breach of the agreements and
covenants on the part of the NICCO herein contained and shall
fail to remedy such breach (if capable of being remedied) within
?? days after written notice thereof to NICCO by GRSE speci-
fying the nature of the breach.
Any such termination shall be without prejudice to the rights of GRSE
to recover any monies due to it under this agreement and to the rights or
remedies of either party in respect of any antecedent breach of this
agreement.
16. The NICCO shall have the right to terminate this agreement if GRSE
fails within ???. days after written notice by NICCO to comply with one
or more of the obligations on the part of the GRSE contained in this
agreement to be observed and performed.
17. Upon the termination of this agreement under clause 15 or 16 of this
agreement the NICCO shall forthwith deliver to GRSE all drawings, written
data and documents of a similar nature supplied by GRSE to NICCO and
which shall be in the possession or under the control of NICCO.
18. NICCO shall supply to GRSE.
(1) All such plans, specifications and essential details, together with
all such pertinent data and technical information with such assis-
tance as shall reasonably be required for the carrying out by the
GRSE of its contractual obligations under this agreement; and
(2) Any other information as may be required  by the GRSE relevant
to the project.
19. The GRSE shall exercise all reasonable skill, care and diligence in
the discharge of the duties agreed to be performed by them, and in so far
as any of their duties are discretionary, shall act fairly as between the client
and the contractor.  Except in an emergency or as may be required by the
NICCO, the GRSE shall not, without the prior approval of the NICCO,
authorise any modification of the works involving a substantial extra cost.
20. Subject as hereinafter provided none of the parties to this agreement
may assign any of its rights or obligations hereunder without the consent
in writing of the other PROVIDED that any party may assign all (but not part)
of its rights and obligations hereunder to a subsidiary of the assignor or to
the assignor?s holding company or to a subsidiary of the assignor?s holding
company on the condition that in the case of any such assignment theCh. 73] PROJECT CONSULTANCY AND SERVICE AGREEMENT?FORMS 935
assignor shall remain fully liable for the performance of its obligations
hereunder and on condition that any such assignee shall assume all of the
obligations of the assignor hereunder.  For the purposes of this agreement
the expressions  ?subsidiary? and  ?holding company? shall respectively bear
the meaning as ascribed thereto by section 4 of the Companies Act, 1956.
21. It shall be lawful for GRSE at any time to take feed-back consultancy
services from any person, firm or company having specialised knowledge
or technical know-how on the job or pertaining to any aspect of the work
covered by this agreement.
22. This agreement shall not operate to constitute either party as the
partner, agent or representative of the other and the parties hereto will not
represent themselves as such agent for each other nor represent them-
selves as having any power or authority to incur any obligation of any nature,
express or implied on behalf of one another and shall not bind or pledge
the credit of one another or attempt or purport to do any of such things.
23. This agreement shall remain valid and binding between the parties
hereto for a period of two years, whereafter this agreement will be subject
to review by both the parties for further extension on mutually agreed terms
PROVIDED  that all contracts to be entered into between the parties pursuant
to  the provisions of this agreement and the liabilities for any work done or
to be done thereunder or the respective liabilities under the scope of work
stipulated hereunder, shall be irrevocable and would continue to be
enforceable and binding until completion of all work, warranty and respon-
sibilities under the said contracts or orders or under this agreement.
24. This agreement is the entire agreement between the parties hereto
as to the subject-matter hereof and no amendments hereto shall be
effective unless in writing and signed by or on behalf of each of the parties.
25. The invalidity or unenforceability of any part of this agreement shall
not prejudice or affect the validity or enforceability of the remainder.
26. GRSE will not be responsible for any delay in the execution of the
project by NICCO as the principal contractor under the terms of any order
to be placed upon NICCO by the Purchaser PROVIDED HOWEVER GRSE
hereby undertakes to perform its obligations under this agreement or under
any order or orders that may be placed upon GRSE by NICCO pursuant
to this agreement, as appropriate to GRSE?s responsibility within the scope
of the work specified in the ANNEXURE ? I hereto.
27. NICCO will be responsible for procurement of various equipment and
items in accordance with the standard and specifications to be laid down
or supplied by GRSE and NICCO shall ensure that the equipment and
material to be supplied against various orders is individually inspected,
tested and analysed in terms of the specifications laid down or supplied
by GRSE and in accordance with the relevant codes and practices specified
together by expression or implication.936 CONVEYANCING, DRAFTING & DEEDS [Ch. 73
28. NICCO should make available to the GRSE and any other individual/
agency authorised by the GRSE for the purpose of inspection of all its
records and results in respect of inspection, tests and analysis conducted
by NICCO as part of their testing and operations under the applicable codes
and practices specified by expression or implication in this regard.
29. If required by the GRSE the NICCO or its sub-contractor shall provide
and deliver free of charge for test/analysis by an independent authority at
any such place or places as the GRSE or its authorised inspector may
reasonably require.  Cost of such raw materials used or intended to be used
for the contracted work by the NICCO as the GRSE or its authorised
Inspector shall consider necessary and the cost of such test/analysis shall
be borne by the NICCO.
30. Should the NICCO fail to comply with any of the provisions contained
in clauses 27 to 29 relating to inspection, testing and/or analysis, the GRSE
shall be entitled by itself and/or through Inspectors to conduct or have
conducted the Inspection, tests and/or analysis at the risk and expenses
of the NICCO in all respects.
31. GRSE shall guarantee that the performance of the plants commis-
sioned under the orders to be received from NICCO shall be strictly in
conformity with the specification, design and within the technical parameter
of the contract and should any defects be noticed in the plants due to faulty
design, specifications or due to incomplete and erroneous instruction
issued by GRSE to NICCO within 12 months from the date of commission-
ing of the plant NICCO shall inform the GRSE and the GRSE shall
immediately on receipt of such intimation, depute their technical personnel
within ?.. days to investigate the causes of defects and arrange rectification
of the defects at the cost of GRSE within a reasonable period.
32. If GRSE fails to meet its obligation to remove the defects within a
reasonable period or refuses to carry out work under the guarantee clause
and implied guarantee conditions, if dangers anticipated or in case of
severe urgency, the NICCO shall be entitled to carry out at GRSE?s cost
and risk, repair work or replacement of the necessary work or have it done
by a third party.
33. Liability of the GRSE under the foregoing clauses 31 and 32 shall
be joint with NICCO and where the causes of failure or defects in the
performance of the plant are not attributable to any defects in the planning,
design engineering or technical data supplied by GRSE to NICCO but the
same are either due to failure on the part of NICCO or any of its agents
or contractors/sub-contractors to make true and correct use of the drawings,
or on account of failure on the part of NICCO to act in accordance to the
specification and technical information and/or instructions supplied by
GRSE or if the failure in the performance is due to any defects in design,
material and/or workmanship in any equipment or machinery used orCh. 73] PROJECT CONSULTANCY AND SERVICE AGREEMENT?FORMS 937
installed in the plant and supplied by any other supplier or suppliers, then
and in either of the events the GRSE will not be responsible for breach of
any covenant for warrant as aforesaid.
34. The GRSE shall keep the NICCO indemnified from and against any
and all claims, actions, demands and proceedings whatsoever brought or
made against the NICCO on the basis of any patent or infringement thereof
claimed or otherwise relating to and arising from any method or process
employed or method or thing done to or in connection with any work
executed by the GRSE under this agreement or any other agreement or
order, and the GRSE shall, at its own risk and expenses defend any suit
for infringement of patent or like suit brought against the NICCO (whether
with or without the GRSE being a party thereto) and shall pay any damages
and costs in such suit, and keep the NICCO indemnified from and against
all consequences thereof.
35. During the continuance of this agreement NICCO will?
(1) Indemnify and keep indemnified the GRSE from and against any
and all loss, damages, liability and legal fees and costs incurred
by GRSE because of:
(a) any act, neglect or default of the NICCO or any of its agents,
employees, licensees or customers in connection with the
work or works agreed to be performed under this agreement.
(b) any other reason so long as such loss, damages, liability, fees
or costs resulted from the licence hereby granted and was not
due to any default of GRSE.
36. None of the parties shall be considered in default for the performance
of their respective obligations under the contract if and so long as such
performance is delayed or prevented by Force Majeure conditions such as
floods, droughts, earthquake, epidemics, cause of any Government author-
ity, domestic or foreign, including but not limited to war (whether declared
or not), quarantine, licensing controls or production or distribution restric-
tion, accidents, destructions including but not limited to fires, explosives,
strikes, lock-outs and sabotage.
If the occurrence of any of the aforesaid  Force Majeure conditions
prevents or delays the fulfillment of the obligations of either GRSE or NICCO
continuously for a period of one month, then the parties should meet and
jointly decide the further course of action to be taken.
37. Waiver by a party hereto of any particular default by the other shall
not affect or prejudice that party?s rights in respect of any other default nor
any subsequent default of the same or of a different kind nor shall any delay
or omission of that party to exercise any right arising from any default affect
or prejudice its rights as to the same or any future default.
38. In consideration of the premises the NICCO shall make payment to
the GRSE the lump sum fee based on the final contract price at the rate
and in the manner specified in ANNEXURE II hereto.938 CONVEYANCING, DRAFTING & DEEDS [Ch. 73
39. All notices, consents and the like given under this agreement shall
be delivered or sent by registered or recorded delivery post addressed to
the other party at its address as herein set out or to such other address
as such party shall declare in writing for that purpose to the other and all
such notices and consents shall be deemed to be given on the day of
delivery if delivered and on that day following the date of posting if sent by
registered or recorded delivery post.
40. If any dispute, difference, question or disagreement shall, at any time
hereafter arise between the parties hereto or the respective representatives
or assigns in connection with or arising out of the contract or in respect of
meaning of specifications, design, drawings, estimates, schedules,
annexures, order, instructions, the construction, interpretation of this
agreement, application of the provisions thereof or anything hereunder
contained or arising hereunder or as to the rights, liabilities or duties of the
said parties hereunder or any matter whatsoever incidental to this contract
whether arising before or after the completion of the work under this contract
which cannot be mutually resolved by the parties, the same shall be referred
to the sole Arbitration of CMD/GRSE or his appointed nominee and the
provision of Indian Arbitration and Conciliation Act, 1996 will apply in such
Arbitration.
41. This contract, including all matters connected with this contract shall
be construed and operated as an Indian contract and governed by the
Indian Laws both substantive and procedural, for the time being in force
and shall be subject to the exclusive jurisdiction of the Courts at Kolkata.
IN WITNESS  WHEREOF the parties hereto have, through their authorised
representatives, executed these presents on the day, month and year first
above-written.
SIGNED SEALED AND DELIVERED by
M/s. GRAHAM RICHARD SHIPBUILDERS & ENGINEERS LIMITED through their
authorised representative  Sri.........??........................................
..........................?.?.. (Designation)
In the presence of
WITNESSES:
1.
2.
SIGNED SEALED AND DELIVERED by M/s. NORTH INDIAN COAL CORPORA-
TION LIMITED through their authorised representative Sri...???...............
.......................................................?.. (Designation)
In the presence of
WITNESSES:
1.
2.Ch. 73] PROJECT CONSULTANCY AND SERVICE AGREEMENT?FORMS 939
ANNEXURE I
ABOVE REFERRED TO
PART-A
GRSE?s Scope of Work
I. System Engineering:
1. Preparation and finalisation of System layout on the basis of site
survey documents furnihsed by NICCO, showing co-ordinates and
levels of various  Transfer points, Crusher House underground
Tunnels, reclaim Hopper,  Wagon  Tipler, Control Rooms and
Conveyors etc., so as to fit into the existing/proposed plant layout
of the relevant NIT.
2. Finalisation of material Flow diagram.
3. Preparation of foundation load data Anchor Bolt Plan of whole CHP
system, including location and loads for inserts.
4. Preparation of General Arrangement Drawings, with adequate
details of equipment and conveyor layouts, so that these drawings
would be adequate for design of Civil and Structural Engineering
work independently.
5. Material Schedule (for procurement purpose) for total project,
which are to be prepared at the beginning of the Project on
finalisation of schematic design.
6. Technical evaluation of and recommendations about, various bids
and selection of vendors for various systems.
7. Review and approval of design/drawings furnished by vendors
and/or equipment manufacturers.
8. To ensure fulfillment of anticipated plant performance parameters.
II.  Mechanical.
1. Preparation of outline specification and schematic/layout drawings
and related tender documents for all bought-out and/or fabricated
equipment.
2. Detail design of conveyors and associated equipments.
3. Drive and tension calculations for conveyor system, and minimum
power requirement for other equipment.
4. Preparation of and Blow-ups and detail drawings of Conveyors,
Belt Feeders, Belt cleaners, Chutes, Drive frames,  Take-ups,
Gates (sliding and flap gate), Pulleys, Drive system etc. as
applicable.
5. Preparation of all detail drawings for conveyor technological940 CONVEYANCING, DRAFTING & DEEDS [Ch. 73
structures, including all chute work, liners for RCC/Steel bunker/
Chutes, skift board, deck plates etc. and rail fixing arrangements,
as applicable.
III. Civil:
1. Preparation of Civil design criteria and design calculations, and
general arrangement/detailed construction drawings with elabo-
rate dimensions, showing plan, elevations, sections and views as
well as details of various inserts and anchor bolts, based on soil
data furnished by NICCO.
2. Tender documents and preliminary bill of quantities with a variation
of +/- 10%, for finalisation of contract with sub-vendors/for procure-
ment purposes only.
3. Preparation of Bar-bending schedule and material list.
4. Updating of detail drawing based on  ?As built? information received
from NICCO.
IV. Structural:
1. Preparation of structural design, calculations with design criteria
and G.A. drawings.
2. Tender documents and preliminary bill of quantities with a variation
of +/- 10%, for finalisation of contract with sub-vendors/for procure-
ment purposes only.
3. Preparation of fabrication and erection drawings, with elaborate
dimensions, showing plan, elevation, sections, views, joints having
signs and marks of different elements, along with Bill of Materials
against each drawing.
4. Preparation of Bill of quantities along with bulk list (with +/- 10%
variation) for procurement within one month from finalisation of
basic design.
5. Updating of detail drawings based on  ?As built? information
received from NICCO.
V. Electrical:
1. To furnish all such data, as may be required for preparation of
detailed design of electrical system of the plant. Inter-facing
requirements are also to be taken care of.
2. Review and interfacing of drawings, (to be submitted by Electrical
detailer, which shall be arranged by NICCO).
VI.  Dust Extraction System/Pipeline/Air Conditioning:
1. Preparation of layout drawings and basic design parameters/
schemes, based on which detail engineering, manufacturing,
supply, erection and commissioning of these system can be
executed by other agencies.Ch. 73] PROJECT CONSULTANCY AND SERVICE AGREEMENT?FORMS 941
2. Review and Inter-facing of drawings, (to be submitted by Vendors,
which shall be arranged by NICCO).
VII. Supply of equipment:
Vendors selection for various equipment and items, and assess-
ment of overall capabilities of the vendors, will be jointly under-
taken by GRSE and NICCO, and the final orders will be placed by
NICCO on approved vendors only.
VIII. General:
1. Preparation of Inter-facing drawings, super-imposing civil, struc-
tural, conveyors, technological structures, mechanical, electricals
and dust extraction system.
2. Co-ordination with Purchaser jointly with NICCO, for getting
approvals for various design calculations/drawings to be prepared
by GRSE, in accordance with this Contract.
3. Submission of revised drawings incorporating comments/improve-
ments, as and when required.
4. Number of prints of each drawings and document shall be
submitted as per requirement of Purchaser, till client?s approval.
Two sets of reproducible prints of each approved drawings to be
finally submitted. Detailed construction drawings not requiring
approval by the Purchaser to be submitted in 5 copies with one
set of reproducible prints.
5. Visit to the site of work, to deal with major design/construction
problems, as appropriate to GRSE?s responsibility.
6. Preparation of operating instructions and maintenance manuals,
for the total system based on manuals/information supplied by
various equipment vendors.
PART B
NICCO?s Scope of Work and Responsibility
1. NICCO shall be the principal contractor responsible for the total
execution of the Project, in accrodance with the order placed by
the Purchaser.
2. NICCO shall place firm order on GRSE, as per the mutually agreed
scope of work, as spelt out in this agreement.
3. NICCO will maintain close liaison with the Purchaser in all matters,
for resolving all problems, and thereby expediting project execution
and maintaining the project schedule.
4. NICCO shall similarly also arrange for detail engineering for Air
Pollution Control system package etc. to be carried out.
5. NICCO shall arrange for detail engineering of electrical package
to be carried out.942 CONVEYANCING, DRAFTING & DEEDS [Ch. 73
6. NICCO shall also be responsible for all other work involved in the
projects, including complete erection/commissioning of all
structurals and equipment etc., required for the project, site
supervision, co-ordination etc.  Further GRSE will also be kept fully
informed about all relevant matters to enable GRSE to intervene/
give suggestions to NICCO for satisfactory completion of the
PROJECTS.
ANNEXURE II
ABOVE REFERRED TO
Fees for GRSE?s Scope of Work
For GRSE?s Scope of Work as specified in Part A of ANNEXURE I to
this agreement, NICCO will pay a lump sum fee of 2.75% of the final contract
price to GRSE and the payment terms shall be as follows:
10% as an advance against Bank Guarantee for equivalent amount.
40% pro rata payment will be made to GRSE on submission of drawings.
40% pro rata payment will be made to GRSE against approval of
drawings by the Purchaser.
10% after successful commissioning of the plant or after the contractual
date of completion whichever is earlier, subject to completion of
GRSE?s Scope of work, against Indemnity Bond/Bank Guarantee.
3 3 3 3 3
Independent Consultant Agreement Independent Consultant Agreement Independent Consultant Agreement Independent Consultant Agreement Independent Consultant Agreement
THIS AGREEMENT, is made on this ??..... day of ?....?., 20?... BY AND
BETWEEN MACROMEDIA CORPORATION, duly incorporated under the Com-
panies Act, 1956 having its registered office at ...????.., hereinafter
referred to as  ?Macromedia?, (which term of expression shall unless
excluded by or repugnant to the context mean and include its successors
in interest, administrators, liquidators and assigns) of the ONE PART AND
M/S. ROBERT HICKSON & ASSOCIATES, a Proprietorship concern, having its
place of business at?....??., hereinafter referred to as  ?Consultant?
(which term or expressions shall unless excluded by or repugnant to the
context, mean and include his heirs, successors, executors administrators
and assigns) of the OTHER PART.
IT IS HEREBY AGREED BY AND BETWEEN THE PARTIES as follows:
1. Provision of Services. Consultant agrees to provide Services, in
accordance with the terms and conditions of this Agreement, and
as described on Exhibits A and B hereto.  Consultant shall furnish
all labour, materials, equipment, supervision and insurance needed
to provide the Services. It is understood that Consultant is anCh. 73] PROJECT CONSULTANCY AND SERVICE AGREEMENT?FORMS 943
independent Consultant in the performance of this Agreement and
not an employee of Macromedia. Nothing contained herein shall
be construed to imply an employment, joint venture or principal and
agent relationship between the parties, and neither party shall
have any right, power or authority to create any obligations,
express or implied, on behalf of the other.  Consultant shall not be
entitled to participate in any plans, benefits or distributions,
intended for Macromedia employees. Consultant agrees that
Macromedia will make no deductions from any compensation paid
to Consultant for, and Consultant shall have full and exclusive
liability for, the payment of any taxes and/or contributions for
unemployment insurance, workers? compensation or any other
employment-related costs or obligations, related to the provision
of the Services.
2. Additional Services.  Exhibits A and B may be modified, from time-
to-time, upon agreement of the parties.  If Macromedia requests
modified or additional Services, Consultant shall provide
Macromedia with an estimate of changes to the compensation
payable and impact upon milestone or completion dates, if any.
Consultant shall proceed with such modified or additional Services
only upon Macromedia?s written approval.
3. Macromedia Representative. Macromedia Representative means
Rob Burgess, or such other person as Macromedia may subse-
quently designate. All instructions, approvals, submissions, no-
tices, and any other communications or transactions which must
be made to or by Macromedia pursuant to this agreement must be
made through the Macromedia representative.
4. Term. Time is of the essence in the provision of Services under this
Agreement. Consultant shall commence provision of Services
on?. This Agreement shall terminate upon Consultant?s comple-
tion of the Services in accordance with Exhibit B.
5. Compensation Payable to Consultant and Invoices.  In consider-
ation for the Services provided and rights assigned hereunder,
Macromedia shall pay Consultant as specified in Exhibits A and
B.  Consultant shall invoice Macromedia in accordance with the
schedule on Exhibit B.  No compensation shall be paid for Services,
unless provided in accordance with Exhibits A and B, or otherwise
approved in advance in writing by Macromedia, and fully accepted
by Macromedia.
6. Indemnity and Warranty. Consultant shall at all times comply with
all applicable laws, statutes, ordinances, rules, regulations and
other governmental requirements. Consultant shall indemnify and
hold Macromedia harmless from any and all claims, causes of944 CONVEYANCING, DRAFTING & DEEDS [Ch. 73
action, losses, damage, liabilities, costs and expenses, including
attorney?s fees, arising from the death of or injury to any person,
from damage to or destruction of property, or from breach of the
warranties in this paragraph, arising from the provision of Services
by Consultant, its agents or employees. Consultant warrants that
the Services provided by the Consultant and/or work delivered to
Macromedia, not provided by Macromedia to Consultant, does not
infringe upon or violate the rights of any third party, and the use
of same by Macromedia will not violate or infringe the rights of any
person or party.  Consultant warrants that all deliverables shall be
?Year 2005? complaint. For purposes of this Agreement,  ?Year 2005
compliant? means that all deliverables will record, maintain and
process accurate dates for all dates including and following
January 1, 2005.
7. Ownership of Intellectual Property. Consultant agrees that all
copyrightable material, including writings, software, drawings, and
designs, and all ideas, inventions, improvements, developments
and discoveries made, conceived or reduced to practice by
Consultant, whether individually or in collaboration with others,
during the course of performance under this Agreement, which
relate in any manner to Macromedia?s business or to the Services,
are the sole property of Macromedia and Consultant agrees to
assign (or cause to be assigned) to Macromedia all right, title and
interest in and to all such intellectual property, including without
limitaiton any worldwide copyright(s), moral rights, patent(s) and
any and all other such rights of whatever kind, and the right to
obtain registrations, renewals, reissues and extensions of the
same. Consultant agrees to execute such further documents and
to do such further acts as may be necessary to perfect the
foregoing assignments and to protect Macromedia?s rights.  In the
event Consultant fails or refuses to execute such documents,
Consultant hereby appoints Macromedia as Consultant?s attor-
ney-in-fact (this appointment to be irrevocable and a power
coupled with an interest) to act on Consultant?s behalf and to
execute such documents. Consultant further agrees that
Macromedia shall have the right to use, copy, publish, reproduce,
alter, or destroy the Intellectual Property and to take any other
action consistent with Macromedia?s sole and exclusive ownership
thereof, and Consultant waives any right to interfere with or to
prevent the exercise of the forgoing rights by Macromedia in its sole
and absolute discretion.
8. Confidentiality. Consultant acknowledges and agrees (a) that all
Intellectual Property, and any other plans, specifications, designs
and other documents and materials created pursuant to thisCh. 73] PROJECT CONSULTANCY AND SERVICE AGREEMENT?FORMS 945
Agreement, or related to the Services and any information, work
in progress, trade secrets or other secret or confidential matter
related to the business or projects of Macromedia constitute
confidential information (?Confidential Information?), and (b) that
Consultant shall not use, copy or disclose to any person, firm or
corporation any such Confidential Information, unless such use,
copying  or disclosure is necessary to accomplish Consultant?s
duties hereunder and has been authorized in writing by Macromedia
pursuant to the Independent Consultant Confidentiality Agree-
ment between Macromedia and Consultant (attached hereto as
Exhibit C), and (c) Consultant shall execute Macromedia?s stan-
dard Independent Consultant Confidentiality Agreement, a copy
of which is attached hereto as Exhibit C, and return same with an
executed copy of this Agreement.
9. Termination.  (a) Macromedia reserves the right to terminate this
Agreement at any time and will endeavour to give Consultant up
to ten (10) days notice of termination, if practicable.  Macromedia
may terminate this Agreement immediately, however, should
Consultant fail to perform any of its obligations hereunder.  Con-
sultant shall be compensated for all Services provided, prior to
termination. (b) Consultant?s obligations pursuant to Paragraphs
6, 7, 8, 13 and 15 shall survive the termination or expiration of the
Agreement, and said paragraphs shall remain in full force and
effect notwithstanding such termination or expiration.
10. Assignment. Neither this Agreement nor any rights or duties
hereunder may be assigned or delegated to any other person or
entity by Consultant without the express written consent of
Macromedia. Any such purported assignment or sub-contract
shall be void.
11. Notices. Any and all notices  or other communications required or
permitted by this Agreement or by law to be served on or given to
either party by the other party to this Agreement shall be in writing
and shall be deemed duly served, given, or delivered when
personally delivered to the party to whom it is addressed, or in lieu
of such personal service, upon deposit in the Postal mail, first-class
postage prepaid, addressed to such party at the appropriate
address set forth below the signature block of this Agreement.
Either party may change its address for the purpose of this
paragraph by giving written notice of such change to the other party
in the manner provided in this paragraph.
12. Entire Agreement.  This agreement represents the entire agree-
ment of the parties hereto relating to the subject-matter hereof, and
any prior agreements, promises, negotiations, or representations,
whether oral or written, not expressly set forth in this Agreement
G : CDD (Vol. 8) ? 60946 CONVEYANCING, DRAFTING & DEEDS [Ch. 73
are of no force and effect. This agreement may be modified only
by a writing, signed by both parties.
13. Advertising. Consultant shall acquire no right to use, and shall not
use, the names, characters, artwork, designs, trade names,
copyrighted materials, trademarks or service marks of Macromedia,
its related or subsidiary companies, employees, directors, share-
holders, assigns, successors or licensees: (a) in any advertising,
publicity or promotion; (b) to express or to imply any endorsement
of Consultant?s services, or (c) in any manner other than in
accordance with this Agreement.
14. Waiver. All waivers hereunder must be made in writing, and failure
at any time to require the other party?s performance of any
obligation under this Agreement shall not affect the right subse-
quently to require performance of the obligation.
15. Governing Law.  This Agreement shall take effect under and be
governed by the laws of India.
16. Authority.  The undersigned warrants and represents that the
undersigned has full power and authority to enter into this Agree-
ment, to bind Consultant hereto, and to grant the rights set forth
herein.
Macromedia Corporation
By /s/ [ILLEGIBLE]
…………………………………………………………………
Date:
Consultant
By: Robert Hickson
…………………………………………………………………
Date:
EXHIBIT A
SERVICES, DEFINED
Provided consulting services to Executives regarding
Rich Media business
EXHIBIT B
PROJECT MILESTONES AND PAYMENT SCHEDULE
EXHIBIT C
UNILATERAL CONFIDENTIALITY AGREEMENT
This unilateral confidentiality agreement (the ?Agreement?) is made asCh. 73] PROJECT CONSULTANCY AND SERVICE AGREEMENT?FORMS 947
of the ?………. day of??…, 20?. By and between Robert Hickson &
Associaties LP having a principal place of business at ???.
(?Recipient?), and Macromedia having a principal place of business
at………….
Recitals
A. Recipient and Macromedia are engaged in discussions in contem-
plation of a business relationship or in furtherance of a business relation-
ship.
B.  In the course of dealings between the Recipient and Macromedia,
Recipient will have access to or have disclosed to it information relating to
Macromedia which is of a confidential nature as that term is later defined
in this Agreement.
C.  Macromedia desires to establish and set forth Recipient?s obligations
with respect to Macromedia?s Confidential Information.
Agreement
In consideration of the foregoing, Recipient and Macromedia mutually
agree as follows:
1. ?Confidential Information? as used in this Agreement shall mean all
technical and non-technical information including patent, copyright, trade
secret, and proprietary information, techniques, sketches, drawings, de-
signs, models, inventions, know-how, processes, apparatus, equipment,
algorithms, software programmes, software source documents, and formu-
lae related to current, future and proposed products, and services of
Macromedia, and includes, without limitation its respective information
concerning research, experimental work, development, design details and
specifications, engineering, financial information, procurement require-
ments, purchasing, manufacturing, customer lists, business forecasts,
sales and merchandising, and marketing plans and information.
2. Recipient agrees that it shall not make use of, disseminate, or in any
way circulate within its own organization any Confidential Information of
Macromedia which is supplied to or obtained by it in writing, orally or by
observation, except to the extent necessary for negotiations, discussions,
and consultations with personnel or authorised representatives of
Macromedia; and any purpose Macromedia may hereafter authorise in
writing.
3. Recipient agrees that it shall disclose Confidential Inforamtion of
Macromedia only to those of its employees who need to know such
information and who have first agreed to be bound by the terms and
conditions of this Agreement.
4. Recipient agrees that it shall treat all Confidential Information of
Macromedia with the same degree of care as it accords to its own948 CONVEYANCING, DRAFTING & DEEDS [Ch. 73
Confidential Information of the same or similar nature, and Recipient
represents that it exercises reasonable care to protect its own Confidential
Information.
5. Recipient further agrees that it shall not publish, copy, or disclose any
Confidential Information of Macromedia to any third party and that it shall
use its best efforts to prevent inadvertent disclosure of such Confidential
Information to any third party.
6. Recipient?s obligations under paragraphs 3, 4, and 5 with respect to
any portion of Macromedia?s Confidential Information shall terminate when
Recipient can document that:
(a) it was in the public domain at the time it was communicated to
Recipient by Macromedia;
(b) it entered the public domain subsequent to the time it was
communicated to Recipient by Macromedia through no fault of
Recipient;
(c) it was in the Recipient?s possession free of any obligation of
confidence at the time it was communicated to Recipient by
Macromedia;
(d) it was rightfully communicated to Recipient free of any obligation
of confidence subsequent to the time it was communicated to
Recipient by Macromedia;
(e) it was developed by employees or agents of Recipient indepen-
dently of and without reference to any information communicated
to Recipient by Macromedia;
(f) it was communicated by Macromedia to an unaffiliated third party
free of any obligation of confidence; or
(g) the communication was in response to a valid order by a court or
other governmental body, was required otherwise required by law,
or was necessary to establish the rights of either party under this
Agreement.
7. All materials (including, without limitation, documents, drawings,
models, apparatus, sketches, designs and lists) furnished to Recipient by
Macromedia, and which are designated in writing to be the property of
Macromedia, shall remain the property of Macromedia and shall be
returned to it promptly at its request, together with any copies thereof.
8. Recipient shall not communicate any information to Macromedia in
violation of the proprietary rights of any third party.
9. Recipient will not export, directly or indirectly, any technical data
acquired from Macromedia pursuant to this Agreement or any product
utilizing any such data to any country for which the Government of India
or any agency thereof at the time of export requires an export licence or
other Government approval without first obtaining such licence or approval.Ch. 73] PROJECT CONSULTANCY AND SERVICE AGREEMENT?FORMS 949
10. Since the unauthorized disclosure of Confidential Information will
diminish the value to Macromedia of the proprietary interests that are the
subject of this Agreement, if Recipient breaches any of its obligations
hereunder, Macromedia shall be entitled to seek equitable relief to protect
its interests therein, including but not limited to injunctive relief, as well as
money damages.
11. This Agreement shall govern all communication between the parties
that are made during the period from the effective date of this Agreement
to the date on which either party receives from the other written notice that
subsequent communications shall not be so governed, provided, however,
that Recipient?s obligations under Paragraphs 2, 3, 4 and 5 with respect to
Confidential Information of Macromedia which it has previously received
shall continue in perpetuity unless terminated pursuant to Paragraph 6.
12. This Agreement shall be construed in accordance with the Laws of
India without giving effect to principles of conflict of laws.
13. This Agreement is the complete and exclusive statement of the
agreement between the parties, supersedes all prior written and oral
communications and agreements relating to the subject-matter hereof.
14. Any notice required to be given under this Agreement shall be
deemed received upon personal delivery or three (3) days after mailing if
sent by registered or certified mail to the addresses of the parties set forth
below, or to such other address as either of the parties shall have furnished
to the other in writing.
15. In the event of invalidity of any provision of this Agreement, the parties
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 which most closely approximates the intent and economic effect
of the invalid provisions.
IN WITNESS WHEREOF , the parties have executed this Agreement as of
the date first written above.
MACROMEDIA CORPORATION     RECEIPIENT:
By: /s/ [ILLEGIBLE] By: /s/ [ILLEGIBLE]
……………………………………………… ………………………………………
Title:    Title:
…………………………………………… ……………………………………
(Address) (Address)
………………………………………….. ……………………………………950 CONVEYANCING, DRAFTING & DEEDS [Ch. 73
4  4  4  4  4
Project Consultancy Services Agreement Project Consultancy Services Agreement Project Consultancy Services Agreement Project Consultancy Services Agreement Project Consultancy Services Agreement
This Consultancy Services Agreement (the ?Agreement?) is made and
entered into on the??.? day of..??, 20?... (the  ?Effective Date?) by and
between VaxGen-Celltrion, a Corporation, having its place of business at
??........... and VCI Corporation. (`VCI?), a Corporation, with its principal
place of business at ?........?..  (VaxGen and VCI) are sometimes referred
to individually herein as a ?Party? or collectively as the ?Parties. ?)
WHEREAS:
VaxGen and VCI entered into a series of agreements on ?????..,
including a licence agreement, an executed copy of which is attached
hereto as Schedule I (?Licence Agreement?), all of which together set forth
the terms for the construction and operation of pilot manufacturing facilities
for the production of pharmacutical products in????. .
VCI now desires to retain VaxGen as an independent contractor to
perform the Services (as defined and more fully described herein); and
VaxGen is willing to perform the Services on the terms and conditions
set forth herein.
NOW THEREFORE, in consideration of the mutual promises contained
herein, the Parties agree as follows:
Article 1
Definitions
1.1. ?Intellectual Property? shall mean all patents, inventions, develop-
ments, discoveries, improvements, know-how, trade secrets, copyrightable
material, records, data, names, results, notes computer files, records,
trademark, service marks, trade names, marks, logos, brand names,
designs, trademarks and service mark registrations, and any other intel-
lectual property made, conceived, reduced to practice, invented, or discov-
ered by either Party or their employees, independent contractors, consult-
ants, agents, and representatives, prior to the Effective Date or during the
term of this Agreement.
1.2. ?Licensed Know-how? shall have the meaning ascribed to this term
in the Licence Agreement, which is attached hereto as Schedule 1 and
incorporated herein by reference.
1.3. ?Licensed Patent Rights? shall have the meaning ascribed to this
term in the License Agreement attached as Schedule 1, which is incorpo-
rated herein by reference.
1.4. ?VaxGen Intellectual Property? shall mean all Intellectual Property
(i) owned or licnesed by VaxGen prior to the Effective Date and (ii) made,
conceived, reduced to practice, invented, or discovered independently byCh. 73] PROJECT CONSULTANCY AND SERVICE AGREEMENT?FORMS 951
VaxGen, or its employees, independent contractors, consultants, agents,
or representatives, or licensed by VaxGen, during the term of this Agree-
ment but not in the course of providing Services hereunder.  For the purpose
of this Agreement, the Licensed Know-how, Licensed Patent Rights, and
all improvements to VaxGen Intellectual Property, conceived or developed
independently by VaxGen, its employees, independent contractors, con-
sultants, agents, and representatives, shall constitute VaxGen Intellectual
Property.
1.5.  ?VCI Intellectual Property? shall mean all Intellectual Property?
(i) made, conceived, reduced to practice, invented, or discovered indepen-
dently by VCI, and its employees, independent contractors, consultants,
agents, and representatives, expressly excluding  VaxGen, prior to the
Effective Date or during the term of this Agreement, and (ii) all Intellectual
Property made, conceived, reduced to practice, invented, or discovered by
VaxGen, and its employees, independent contractors, consultants, agents,
and representatives solely in the course of providing Services hereunder.
For the purpose of this Agreement, VCI Intellectual Property shall further
include all improvements to VCI Intellectual Property, which are developed
or conceived during the term of this Agreement independently by one or
more employees, independent contractors, consultants, agents, and other
representatives of VCI and, solely in the course of providing Services
hereunder, by one or more employees, independent contractors, consult-
ants, agents, and other representatives of VCI.
1.6. ?Work Product? shall mean all electronic and written records, files,
and samples of work produced during the term  of this Agreement by VCI
and, solely in the course of providing Services hereunder,  VaxGen,
including, but not limited to, reports, notes, data, sketches, drawings, media,
and other representations of such work.
Article II
Services and Compensation
2.1. Performance of Services.  During the term of this Agreement,
VaxGen shall perform the following Services for VCI in a commercially
reasonable manner and in accordance with the terms and conditions of this
Agreement, and with any time schedule, requirements, or other goals,
which are agreed between VaxGen and VCI pursuant to this Section 2.1:
(a) the services set forth in the Licence Agreement and Sub-licence
Agreement entered into between VaxGen and VCI,
(b) the services requested by VCI in connection with the performance
of the Licence Agreement and Sub-licence Agreement entered
into between VaxGen and VCI, and
(c) other services reasonably requested by VCI.952 CONVEYANCING, DRAFTING & DEEDS [Ch. 73
2.2. Compensation. VCI shall pay to VaxGen compensation as set forth
in this Section 2.2 for the performance of the Services described in Sections
2.1(b) and (c) above.
(a) Payment of each VaxGen employee at a rate equal to the hourly
rate of such employee?s annual salary, plus an additional overhead
rate of [..........], as set forth in Schedule 2, and
(b) Payment of independent contractor, consultant, agent, or other
representative of VaxGen hired by VaxGen on behalf of VCI in
support of the Services at a rate equal to the hourly rate of his or
her contract rate.
The amount of compensation shall not be increased except upon the
signed written agreement of the Parties.   The Parties agree that the
compensation described in this Section 2.2 is based solely on the
performance of the Services described in Section 2.1(b) and (c) above.
2.3. Reimbursement of Expenses. VCI shall reimburse VaxGen for all
reasonable out-of-pocket expenses, which are necessarily incurred on its
behalf in the performance of the Services by VaxGen, any employee,
independent contractor, consultant, agent, and/or other representative of
VaxGen, including but not limited to telephone, facsimile, shipping, postage,
lodging, travel expenses, provided that prior written approval shall be
obtained before such travel expenses are incurred. For any out-of-pocket
expenses, with respect to which VaxGen seeks reimbusement from VCI,
VaxGen shall submit an itemized written statement detailing such ex-
penses, which shall be provided in a format reasonably acceptable to VCI.
2.4. Payments and Capital Contributions by VaxGen.  All compensation
and reimbursement payable to VaxGen pursuant to Sections 2.2 and 2.3
shall not be deemed capital contributions by VaxGen as set forth in Article
5 of the VCI Joint Venture Agreement. All payments pursuant to Sections
2.2. and 2.3 shall be due and payable within sixty (60) days of the invoice
date.  All sums, including reimbursements, due payable under this Agree-
ment shall exclude any value added goods and services, sales, or other
tax, duty or levy.
2.5. Late Payments. On all amounts outstanding and payable, interest
shall accrue from the date such amounts are due and payable at the rate
of one-half percent (1/2%) per month on any amount required by this
Agreement, commencing on the date on which payment is due.
Article III
Ownership of Intellectual Property
3.1. Ownership of Intellectual Property and Work Product. All right, title,
and interest in VaxGen Intellectual Property shall be solely owned by
VaxGen. All right, title, and interest in VCI Intellectual Property and Work
Product shall be solely owned by VCI.Ch. 73] PROJECT CONSULTANCY AND SERVICE AGREEMENT?FORMS 953
3.2. Assignment of Rights to Intellectual Property and Work Product.
VaxGen hereby certifies that each employee, independent contractor,
consultant, agent, and representative of VaxGen, having access to VaxGen
Intellectual Property and/or VCI Intellectual Property and Work Product,
has signed an agreement with VaxGen, which assigns and transfers to
VaxGen all right, title and interest in any VCI Intellectual Property and Work
Product conceived or developed during the term of this Agreement. VCI
hereby certifies that each employee, independent contractor, consultant,
agent, and representative of VCI, having access to the VaxGen Intellectual
Property and/or the VCI Intellectual Property and Work Product, has signed
an agreement with VCI, which assigns and transfers to VCI all right, title,
and interest in any VCI Intellectual Property and Work Product conceived
or developed during the term of this Agreement.
3.3.  Improvements.  VCI agrees that, if  VaxGen, or any employee,
independent contractor, consultant, agent, and/or other representative of
VaxGen, in the course of performing the Services, and/or VCI, or any
employee, independent contractor, consultant, agent, and/or other repre-
sentative of VCI, at any time, incorporates any improvement, invention,
development, concept, discovery, or other proprietary information into
VaxGen Intellectual Property, VaxGen shall have a perpetual, irrevocable,
worldwide, fully paid, royalty free, non-exclusive right to practice, make,
have made, sell, offer for sale, import, modify, reproduce, display, and use,
as applicable, such invention, improvement, development, concept, discov-
ery, or other proprietary information.
Article IV
Infringement
Sections 5.3 and 5.4 of the Licence Agreement attached hereto as
Schedule 1 are incorporated herein by reference.
Article V
Maintenance of Records and Reports
During the Term of this Agreement and for a period of two (2) years
following the expiration or termination of this Agreement, the Parties agree
to maintain complete and accurate accounting records, in a form substan-
tially in accordance with standard accounting practices, substantiating the
compensation, reimbursements, overhead rate, and late interest, if any,
invoiced by VaxGen for Services rendered during the term of this Agree-
ment, and listing the invoices received by VCI and payments made pursuant
to such invoices. These records shall be kept at the Parties? principal place
of business, and shall be made available for inspection and copying during
regular business hours by an independent accountant retained by the Party
seeking inspection at such Party?s sole expense.954 CONVEYANCING, DRAFTING & DEEDS [Ch. 73
Article VI
Term and Termination
6.1. Term of Agreement. The term of this Agreement will commence on
the Effective Date and will continue for a period of five (5) years until the
fifth anniversary of the Effective Date, unless earlier terminated as set forth
herein.
6.2. Termination of Will.  Either Party may terminate this Agreement at
will upon the provision of ninety (90) days prior written notice to the other
Party.
6.3. Termination for Cause. Failure by either Party to comply with any
of its material obligations set forth in this Agreement shall entitle the non-
defaulting Party to give the defaulting Party a notice specifying the nature
of the default and requiring the defaulting Party to make good its default.
It such default is not cured within thirty (30) days after such notice, the non-
defaulting Party shall be entitled, without prejudice to any of its other rights
under this Agreement or available under law or in equity, to terminate this
agreement effective upon a notice of termination to the defaulting Party.
Such termination shall not relieve the breaching Party from any obligations,
which are expressly indicated to survive the termination or expiration of this
Agreement.
6.4. Termination for Insolvency or Bankruptcy.  Section 9.3 of the Licence
Agreement, attached hereto as Schedule 1, shall be incorporated herein
by reference.
6.5. Expiration or Termination. Upon expiration or termination of this
Agreement, the performance of any and all Services shall cease.  Compen-
sation for all Services rendered up to the date of expiration or termination
shall be due and payable, and if overpayment has occurred, then such
overpayment amounts shall be deducted and the overpayment shall be
refunded within sixty (60) days of such termination. In addition, the
reimbursement of all expenses incurred pursuant to Section 2.3, and all
outstanding financial obligations incurred on behalf of VCI, on or before the
date of expiration or termination, shall be due and payable on or before the
fifteenth (15th) day following any such expiration or termination.
6.6. Survival of Terms. The following terms will survive expiration or
termination of this Agreement: Sections 2.2, 2.3, 2.4, 2.5, and 6.5, and
Articles III, IV, V, VII, VIII, and IX.
Article VII
Confidentiality
Section 6.1 of License Agreement, which is attached hereto as Schedule
1, is incorporated herein by reference.Ch. 73] PROJECT CONSULTANCY AND SERVICE AGREEMENT?FORMS 955
Article VIII
Language
This Agreement is written in the English language, which language shall
prevail over any translation thereof.
Article IX
Miscellaneous
9.1. Force Majeure. Section 10.11 of the Licence Agreement, which is
attached hereto as Schedule 1, is incorporated herein by reference.
9.2. Binding Effect and Assignment.  This Agreement shall be binding
upon and inure to the benefit of the Parties hereto and their respective
permitted successors and assigns, subject to the remainder of this Section
9.2. This Agreement shall not be assignable by either Party in whole or in
part without the other Party?s prior consent in its sole discretion, except that
either Party may assign this Agreement in whole or in part without the other
Party?s consent in connection with any consolidation, merger redemption,
put for sale of stock, conveyance of substantially all of the assigning Party?s
assets, or change-of-control transaction that involves the assigning Party.
9.3. Governing Law, Disputes. Sections 10.2 and 10.5 of the Licence
Agreement, which is attached hereto as Schedule 1, shall be incorporated
herein by reference.
9.4. Notices. Any notice, request, delivery, demand, report, accounting,
approval or consent required or permitted to be given under this Agreement
shall be in writing and shall be deemed sufficiently given on the same day
as delivery if delivered in person or transmitted by telecopier (with
confirmed answer-back) in any case by 5.00 p.m. local time, on the next
business day if sent by overnight courier service, and in three business days
if sent by registered or certified mail, in any case addressed to the Party
to whom it is directed at its last known address or such other address as
such Party shall have last given by notice to the other Party in accordance
with this Section.
9.5.  Entire Understanding.  This Agreement, along with the Licence
Agreement, effective as of ???. Date ???., which is attached hereto
as Schedule 1, and the other Schedules, contains the entire understanding
of the Parties with respect to the subject-matter contained herein, and
supersedes all prior understandings between the Parties, whether written
or oral, regarding the same matter.  There are no restrictions, promises,
covenants or understandings other than those expressly set forth  herein,
and no rights or duties on the part of either Party are to be implied or inferred
beyond those expressly herein provided for.  The Parties hereto may, from
time to time during the term of this Agreement, modify, vary, or alter any
of the provisions of this Agreement but only by written agreement duly
executed by the Parties.956 CONVEYANCING, DRAFTING & DEEDS [Ch. 73
9.6.  Severance.  Section 10.7 of the Licence Agreement, which is
attached hereto as Schedule 1, shall be incorporated herein by reference.
9.7. Publicity. VCI and VaxGen shall consult and obtain mutual consent
before making any public announcement concerning this Agreement, the
subject matter hereof or use of the other Party?s name, except for
information that is already in the  public domain or where the nature of such
information has been previously approved for disclosure (in which case this
Section 10.7 will no longer apply to that previously approved information).
9.8.  Independent Contractors. Section 10.13 of the Licence Agreement,
which is attached hereto as Schedule 1, shall be incorporated herein by
reference.
9.9. Waiver.  Section 10.6 of the Licence Agreement, which is attached
hereto as Schedule 1, shall be incorporated herein by reference.
9.10. Third Party Beneficiaries. This Agreement does not create, and
shall not be construed to create, any rights enforceable by any person not
a Party to this Agreement.
9.11.  Headings.  Section 10.12 of the Licence Agreement, which is
attached hereto as Schedule 1, is incorporated herein by reference.
9.12. Counterparts. This Agreement may be executed in counterparts,
each of which shall be deemed an original for all purposes, but all of which
together shall constitute one and the same instrument.
IN WITNESS WHEREOF, the undersigned are duly authorized to execute
this Agreement on behalf of VaxGen and VCI, as applicable.
VAXGEN-CELTRION      VCI CORPORATION
(?VaxGen?) (?VCI?)
By: By:
Print Name: Print Name:
Title: Title:Ch. 73] PROJECT CONSULTANCY AND SERVICE AGREEMENT?FORMS 957
SCHEDULE 1
LICENCE AGREEMENT
SCHEDULE 2
OVERHED RATE
Facility Costs (Office Space Only) [*]
Indirect Labour
Facilities
Officer Services
Purchasing
Office Rent
Utilities
Security
General Insurance
Facility Repairs and Maintenance
Depreciation on Office Equipment
Benefits [*]
Medical Insurance
Dental Insurance
Vision Insurance
Life Insurance
Long Term Disability
Short Term Disability
Employer Taxes
Vacation
Operating Expenses [*]
Telecommunication
Office Supplies
Postage and Couriers
Softeware Licence
Equipment Rental (Copiers, Cubicles)
Office Equipment Repair and Maintenance
Print and Reproductions958 CONVEYANCING, DRAFTING & DEEDS [Ch. 73
Other Indirect Labour
Finance and Administration [*]
Corporate Communications [*]
Human Resources [*]
Information Technology [*]
Total Overhead Allocation [*]
5 5 5 5 5
Information Technology Project Consultancy Information Technology Project Consultancy Information Technology Project Consultancy Information Technology Project Consultancy Information Technology Project Consultancy
Service Agreement Service Agreement Service Agreement Service Agreement Service Agreement
This Consultancy Agreement (?Agreement?), dated ???. [Date] ???
is entered into by and between Aptech Systems Incorporated, ????
[Address] ??…………?. (?Aptech?), AND Infodata Systems Inc., ???.
[Address] ?……………………………………..?.. (?Consultant?).
Aptech desires to retain Consultant as an independent contractor to
perform consulting services for Aptech from time to time and Consultant
is willing to perform such services, on the basis set forth more fully below.
In consideration of the mutual promises contained herein, Aptech and
Consultant agree as follows:
1.  Services.?Consultant agrees to perform the Services described in
any Project Assignment pursuant hereto in a workmanlike manner accord-
ing to the schedule of work set forth therein. A copy of the form of Project
Assignment is attached hereto as EXHIBIT A (?Project Assignment?).
Consultant agrees that the terms of this Agreement will apply to all services
performed by Consultant for Aptech even if a Project Assignment form has
not been completed for a special assignment. Consultant may perform
services for any other person or entity so long as Consultant does not
perform similar services for a direct competitor of Aptech and so long as
Consultant?s performance of such services does not interfere with the
performance of Consultant?s obligations under this Agreement.
2. Payment for services.?Aptech shall pay Consultant the fee set forth
in the Project Assignment for the performance of the Services. Consultant
acknowledges that its sole compensation for the Services shall be this fee,
and that it shall not be entitled to any other compensation for the Services,
including salary, bonuses, benefits or expense or other reimbursements.
3. Relationship of parties.?Consultant shall perform the Services
under the general direction of Aptech, but Consultant shall determine, in
Consultant?s sole discretion, the manner and means by which the ServicesCh. 73] PROJECT CONSULTANCY AND SERVICE AGREEMENT?FORMS 959
are accomplished, subject to the express condition that Consultant shall
at all times comply with applicable law.  Consultant is an independent
contractor and Consultant is not an agent or employee of Aptech, and has
no authority whatsoever to bind Aptech by contract or otherwise. Consultant
specifically agrees to comply at all times with Aptech?s Insider  Trading Policy
Statement attached as EXHIBIT B (?Insider Trading Policy Statement?).
4. Facilities, Expenses, Insurance, Records and Licences.?Con-
sultant shall provide its own facilities and place of business to perform the
Services (except as required to install software), and Consultant shall bear
the entire cost of its facilities without reimbursement by Aptech. Aptech shall
have no obligation to reimburse Consultant for any costs or expenses
incurred by Consultant in the performance of its duties, and all such costs
and expenses shall  be borne by Consultant. Consultant shall be respon-
sible for providing, for itself and its employees, at its expense and in its own
name, disability, liability, workers?  compensation and other business insur-
ance as is necessary, appropriate and/or required by law.  In connection with
its performance of the Services, Consultant agrees that it will be solely
responsible for, and will maintain, any records required by law.  Consultant
agrees that it will obtain all required licenses (if any) relating to its
performance of the Services.
5.  Taxes and Benefits.?No part of Consultant?s compensation under
this Agreement will be subject to withholding for any Central or State Taxes,
workers? compensation or other required taxes or payments.  Consultant
acknowledges and agrees that it shall be the obligation of Consultant to
declare as income, and pay all taxes upon, all compensation received by
Consultant pursuant to this Agreement and Consultant agrees to indemnify
Aptech and hold it harmless to the extent of any obligation imposed on
Aptech to pay any taxes or insurance, including without limitations,
withholding taxes, unemployment, or disability insurance, including the
interest and penalties thereon, in connection with any payments made to
Consultant by Aptech pursuant to this agreement. Consultant  agrees to
pay, indemnify and hold Aptech harmless from any Tax imposed by any
governmental authority with respect to either or both of any payment to be
made by Aptech under this Agreement or any item to be delivered by
Consultant to Aptech under this Agreement. For purposes of this Agree-
ment,  ?Tax? shall mean any tax, fee or cost not based on Aptech?s net
income, including, but not limited to, sales, use, excise, value added,
withholding, or similar tax or any fees and penalties or interest associated
with any of the foregoing.
6.  Inventions.?All designs, artwork, software programme, brochures,
manuals, products, procedures, drawings, notes, documents, information,
materials, discoveries and inventions (hereafter ?Designs and Inventions?)
made, conceived or developed by Consultant alone or with others which
result from or relate to the Services, or which Consultant may receive from960 CONVEYANCING, DRAFTING & DEEDS [Ch. 73
Aptech while performing the Services, shall be the sole property of Aptech.
Consultant specifically agrees to assign all its rights, title and interest to any
Designs and Inventions for which (i) Consultant has signed a Project
Assignment in the form attached as EXHIBIT A (?Project Assignment?),
(ii) Aptech provides Consultant with any Confidential Information (as
defined in Paragraph 7 (?Confidentiality?) below), or (iii) Consultant invoices
Aptech. Aptech shall have the sole right to determine the method of
protection for any such Designs and Inventions, including the right to keep
the same as trade secrets, to file and execute patent applications thereon,
to use and disclose the same without prior patent application, to file
registrations for copyright or trademark thereon in its own name, or to follow
any other procedure that Aptech deems appropriate. Consultant agrees (i)
to disclose promptly in writing to Aptech all such Designs and Inventions,
(ii) that Aptech has a power of attorney to apply for in Consultant?s name,
and (iii) to execute any applications and/or assignments reasonably
necessary to obtain any patent, copyright, trademark or other statutory
protection for such Designs and Inventions in Aptech?s name as Aptech
deems appropriate.  These obligations to disclose, assist, and execute shall
survive termination of this Agreement. At Aptech?s option, it shall be entitled
to use the name of Consultant in advertising and other materials.
7. Confidentiality.  Consultant agrees to hold Aptech?s Confidential
information in strict confidence and not to disclose such Confidential
Information to any third parties. Consultant further agrees to deliver
promptly all Confidential Information in Consultant?s possession to Aptech
at any time upon Aptech?s request.  For purposes hereof,  ?Confidential
Information? shall include all confidential and proprietary information
disclosed by Aptech including but not limited to software source code,
technical and business information relating to Apech?s current and pro-
posed products, research and development, production, manufacturing
and engineering processes, costs, profit or margin information, finances,
customers, suppliers, marketing, and production, personnel and future
business plans.   ?Confidential Information? also includes proprietary or
confidential information of any third party who may disclose such informa-
tion to Aptech or Consultant in the course of Aptech?s business. The above
obligations shall not apply to Confidential Information which is already
known to the Consultant at the time it is disclosed, or which before being
divided either?(a) has become publicly known through no wrongful act of
the Consultant; (b) has been rightfully received from a third party without
restriction on disclosure and  without breach of this Agreement or other
Agreements entered into by Aptech; (c) has been independently developed
by the Consultant; (d) has been approved for release by written authoriza-
tion of Aptech; (e) has been disclosed pursuant to a requirement of a
governmental agency or of law.Ch. 73] PROJECT CONSULTANCY AND SERVICE AGREEMENT?FORMS 961
8.  Termination.?This Agreement shall commence on the date first
written below and shall continue until terminated as follows:
(a) Either party may terminate the Agreement in the event of a breach
by the other party of any of its obligations contained herein if such
breach continues uncured for a  period of five (5) days after written
notice of such breach to the other party;
(b) Either party may terminate this Agreement upon written notice to
the other party if either party is adjudicated bankrupt, files a
voluntary petition of bankruptcy, makes a general assignment for
the benefit of creditors, is unable to meet its obligations in the
normal course of business as they fall due or if a receiver is
appointed on account of insolvency;
(c) Either party may terminate this Agreement for its convenience
upon thirty (30) days written notice to the other if there is no
outstanding Project Assignment. Aptech may terminate this Agree-
ment for its convenience if Consultant has not commenced work
under an outstanding Project Assignment. In addition, if Consult-
ant has commenced work under a Project Assignment, Aptech
may terminate an outstanding Project Assignment by paying
Consultant a termination fee of ten percent (10%) of the unpaid
next instalment of the fee for services described in such Project
Assignment.
Upon the termination of this Agreement for any reason, each party shall
be released from all obligations and liabilities to the other occurring or
arising after the date of such termination, except that any termination shall
not relieve Consultant or Aptech of their obligations under Paragraph 5
{?Taxes and Benefits?), Paragraph 6 (?Inventions?), Paragraph 7 (?Confiden-
tiality?) and Paragraph 9 (?General?), nor shall any such termination relieve
Consultant or Aptech from any liability arising from any breach of this
Agreement. Upon the termination of this Agreement for any reason,
Consultant shall immediately return to Aptech any Aptech property or
information (including Confidential Information) that is in Consultant?s
possession or control.
9. General.
9.1.  Pre-existing obligation.?Consultant represents and warrants
that Consultant is not under any pre-existing obligation or obligations
inconsistent with the provisions of this Agreement.
9.2. Assignment.?The rights and liabilities of the parties hereto shall
bind and inure to the benefit of their respective successors, executors and
administrators, as the case may be,  provided that, Consultant may only
assign this Agreement either in whole or in part with the prior written consent
of Aptech.
G : CDD (Vol. 8) ? 61962 CONVEYANCING, DRAFTING & DEEDS [Ch. 73
9.3.  Equitable Relief.?Because Consultant shall have access to and
become acquainted with the Confidential Information of Aptech, Consultant
agrees that Aptech shall have the right to enforce this Agreement and any
of its provisions by injunction, specific performance or any other equitable
relief without prejudice to any other rights and remedies that Aptech may
have for the breach of this Agreement.
9.4. Attorney?s Fees.?If any action at law or in equity is necessary to
enforce the terms of this Agreement, the prevailing party shall be entitled
to reasonable attorney?s fees, costs and expenses in addition to any other
relief to which such prevailing party may be entitled.
9.5. Governing Law, Severability.?This Agreement shall be governed
by and construed in accordance with the laws of [Country Name] as such
laws are applied to Agreements to be entered into and to be performed
entirely within [Country Name]. If any provision of this Agreement is for any
reason found by a court of competent jurisdiction to be unenforceable, the
remainder of Agreement shall continue in full force and effect.
9.6. Complete Understanding; Modification.?This Agreement con-
stitutes the full and complete understanding and Agreement of the parties
hereto and supersedes all prior understandings and agreements.  Any
waiver, modification or amendment of any provision  of this Agreement shall
be effective only if in writing and signed by the parties thereto.
9.7. Notices.?Any notices required or permitted hereunder shall be
given to the appropriate party at the address specified at the beginning of
this Agreement or at such other address as the party shall specify in writing
and shall be by personal delivery, facsimile transmission or certified or
registered mail. Such notice shall be deemed given upon personal delivery
to the appropriate address or upon receipt of electronic transmission or, if
sent by certified or registered mail, three days after the date of the mailing.
IN  WITNESS  WHEREOF, the parties hereto have signed this Agreement
as of the date written below.
APTECH:         CONSULTANT:
APTECH SYSTEMS INCORPORATED INFODATA SYSTEMS INC.
By [Name]: By [Name]:
Print: Print:
Name: Name:
Title : Title:Ch. 73] PROJECT CONSULTANCY AND SERVICE AGREEMENT?FORMS 963
EXHIBIT A
Project Assignment under Consultant Agreement
Consultant shall render such survices as Aptech may from time to time
request in connection with the modifications of the Remark Software (the
?Modifications?) as set forth in Attachment 1 to this Exhibit A. The parties
shall define the final specifications of the Modifications no later than
???? [date] ???. .
SCHEDULE OF WORK
The work will commence on ??…………….?.. [date]??? Infodata will
use commercially reasonable efforts to deliver the Modifications and the
Alpha Version of……………….. the modified Remark Software no later than
??? [date]?…………  ?Alpha Version? shall  mean that version of the
product for which the following are true: (i) the product is functionally
complete (including installer) and the API?s are frozen with no new coding
planned; (ii) the product is assumed to be buggy; (iii) the product is ready
for serious testing by Aptech with its test plans and test documentation
written during, the development phase. After delivery and acceptance of
the Alpha Version of the product, Infodata shall deliver the beta version and
release candidate of the product.
FEES AND COMPENSATION
Fee: Rs.  …………………………………………………?? (the ?Service Fee?).
Consultant shall invoice Aptech on the schedule set forth on Attachment
1 to this Exhibit A. The Service Fee shall be non-returnable, except in the
event that Infodata materially breaches this Agreement or the proposed
licnese agreement based on the terms set forth in the Letter of Intent, dated
??……………… , or in some other fashion demonstrates willful negligence
(e.g., Infodata licenses or otherwise encumbers the Remark Software).
Payment terms: net 15 days from the date of acceptance or receipt of
invoice in Accounts Payable Department.
ASSIGNMENT OF COPYRIGHT
For good and valuable consideration, the undersigned sells, assigns and
transfers to Aptech Systems Incorporated, and its successors and assigns,
the copyright in and to the above work(s) which were created by the
undersigned and all right title and interest of the undersigned, vested and
contingent therein and thereto.
Executed as of……………………………., 20?…
APTECH: (Name) CONSULTANT : (Name)
……………………………………. ………………………………………………964 CONVEYANCING, DRAFTING & DEEDS [Ch. 73
ATTACHMENT 1 TO EXHIBIT A OF CONSULTING AGREEMENT
Modification Plan
Infodata will enhance Remark Software on a service fee basis to meet
Aptech?s requirements.  Infodata will use Remark 2.04 for Windows source
code as the base for development of the enhancements described herein.
DESCRIPTION OF MODIFICATIONS TO THE TECHNOLOGY
1. Plug-in-format.?Infodata shall deliver plug-in source code in Aptech
standard template format for an Acrobat plug-in.
2. Macintosh Power PC Version.?Infodata shall develop a Macintosh
Power PC Version on Mac OS 7.0 and 8.0. Later versions of Mac OS
including Rhapsody will not be supported but  ?blue box? compatibility
(similar to pending Acrobat blue box support) is required.
3. Multilingual Capability.?Infodata shall enhance Remark Software to
support double-byte and roman localization. Infodata shall perform a mock
translation by the Delivery Date. Infodata shall modify Remark Software to
follow the Aptech Engineering specifications so Aptech Release Engineer-
ing can generate a Localization kit for the translators. If translations are to
be made to French, German, Japanese, Chinese, Korean, Dutch, Swedish,
Spanish and Italian, such translations will be done by Aptech translators,
but Infodata shall fix any and all bugs in the core code of Remark Software
and/or the Modified Remark Software relating to Localization.
4. Update Remark File Format.?Infodata shall document and present
the Remark file format to ?PDF Lang? and implement the changes that it
recommends.  Changes are expected in the following areas: using appear-
ances for drawing annotations, implementing RSA security at the annota-
tion level and cosmetic changes to the keys used in Remark annotations.
5. User Interface.?Infodata shall modify the User Interface of Remark
Software, including the Remark toolbar, so that such User Interface is
compliant with that of Acrobat 4.0. Infodata shall modify Remark Software
to support the new Selection Server, if appropriate, and to support new
command key equivalents and changes to menus and toolbars as appro-
priate.  No dialog changes are anticipated at this time.
6.  Summarize Notes.?Infodata will extend the Summarize Notes
feature in Acrobat to include notes from Remark Software annotations
(removing the text bubble and resolving the text bubble vs. textnote
differences).
7.Prior Remark Versions Support.?Infodata shall modify Remark Soft-
ware to support previous versions of Remark Software.  Annotations saved
in previous versions of Remark will be readable, but new annotations
cannot be saved in the old format. Some annotations (e.g., Free Text and
Sound) will no longer be supported.Ch. 73] PROJECT CONSULTANCY AND SERVICE AGREEMENT?FORMS 965
8.  Import/Export API Feature.?Infodata shall develop a feature to import
and export annotations in FDF.
9. Develop Web Annotation Capability.?Infodata shall enhance and
extend Remark Software to send and retrieve (separately stored) annota-
tions over the Web using HTTP POST using the Grammar Calls. The
Grammar Calls will be integrated into the Modified Remark Software and
will not require any additional plug-ins or libraries for development or use
by third parties.  Web annotations should work both in the browser window
and with the Acrobat 4.0 HTTP stack directly.
10.  OPTIONAL: Develop  Web Publishing Capability.?The feature
described in this Section 10 (Web publishing capability) may be developed
and delivered at Infodata?s option; provided that such optional modification,
if developed and delivered, must be delivered to Aptech no later than the
Delivery Date; provided further that the development work on this optional
feature shall not delay or othewise impede Infodata in fully performing all
other Modifications specified in this Modification Plan. Infodata?s failure to
delivery the feature described in this Section 10 shall not effect a Service
Fee reduction. Except for the Service Fee, Aptech shall not be responsible
for any additional charge or expense for the optional feature.
Optional Feature: Infodata may also deliver an optional feature to
develop Web publishing capability which will enhance and extend Acrobat
to support one button publishing using the Grammar Calls.  The Grammar
Calls will be integrated into the Modified Re:mark Software and will not
require any additional plug-ins or libraries for development or use by third
parties.  The user interface for the Web publishing component will look
similar to Infodata?s Acrial Navigator tool.
11.  Integrate with Aptech Engineering Process.?Infodata shall assist
Aptech engineer on the project to integrate Re:mark build process into the
normal Aptech Engineering process.  Infodata shall support the transfer of
Remark Software and Modified Re:mark Software source code and build
processes.
12. Provide Internal Documentation.?Infodata shall update current (as
is) internal documentation for Re:mark Software with a maximum of two
person-week effort.
13. Provide QA Test Documents and Assistance.?Infodata shall provide
Aptech all QA Test Documents used to test Re:mark. Infodata shall provide
at least 2 person-weeks of assistance to help Aptech QA get familiar with
Re:mark.
14. Quality Assurance Testing.?Aptech shall perform all Quality Assur-
ance testing on the delivered and accepted Alpha Version, Beta Version
and Release Candidate of the Modified Re:mark. Aptech may, at its
discretion, perform Quality Assurance testing on any intermediate release
of the Modified Re:mark Software.966 CONVEYANCING, DRAFTING & DEEDS [Ch. 73
15. End User Documentation.?In connection with the license of the
Modified Re:mark Software, Infodata shall deliver the end user documen-
tation related to the Re:mark Software.  Aptech will be responsible for
modifying such documentation for the release of Acrobat 4.0.
ASSUMPTIONS
Windows platforms:
? Support Windows 95, 98 (when available), NT 3.51, NT 4.0 and
NT 5.0 (when available).
? No support for Windows 3.1, 3.11.
Macintosh platforms:
? Will support both Mac OS 7.x and 8.x.
? No support for the versions of Mac OS including Rhapsody but
?blue box? compatibility (similar to pending Acrobat blue box
support) required.
Acrobat platform:
? Support for Acrobat 4.0.
? No plug-in support for viewing notes or some annotations in
Acrobat Reader.
? No support for Acrobat 3.0 or 3.01.
Operation under Browsers:
? Type/vendor of browser parent to Remark.
? Will only test with Netscape and Microsoft Internet Explorer.
? Use the Acrobat HTTP stack when annotating documents within
documents are opened from the web directly.
? Use the browser?s HTTP stack when operating in the Browser
window.
? Web annotations will work in an external Acrobat window or within
Acrobat.
Appearance Support:
? Design may depend on resolution of conflicts with annotation
security requirements.
? Operation under Reader will be limited to display of some anno-
tation icons. (Remark annotations will be hidden by default so no
annotations will be shown in Reader).
Security:
? Re:mark annotation specific security will be retained.
? Encryption of secured Re:mark annotation data will be converted
to RSA if required by ?PDFLang?; will be independent of, and in
addition to, Acrobat?s document security.
? No special license agreement required for RSA.Ch. 73] PROJECT CONSULTANCY AND SERVICE AGREEMENT?FORMS 967
User Interface:
? Aptech will provide specifications, necessary Acrobat SDK exten-
sions to support required enhancements to Re:mark.
? Only Acrobat tool bar and menu items need to be updated,
Re:mark dialog okay as is.
? New Selection Server support will be added if appropriate.
Re:mark product changes:
? Support for current Re:mark Text and Sound annotations will be
removed.
? Re:mark Rendering operation will be updated to be more consis-
tent with Notes summary; Aptech will provide technical support.
COST ESTIMATION
Infodata estimates the total effort required to develop the above features
(Alpha Version ? feature complete version) to be 133 person weeks (not
including the Aptech engineer).
Infodata further estimates the effort required during the Alpha Version
and Beta Version stages of development to be 52 person weeks (not
including the Aptech engineer). This estimate is based on the Alpha Version
and Beta Version stages lasting for a total period of six months (January
through June).
Infodata will provide all of these services on a time and materials basis
at a substantially reduced rate of Rs.??….? per man-hour.  This substan-
tially reduced rate will be valid until [Date]. Based on this rate, and the
estimates provided above, the total cost (Service Fee) to deliver a complete
version of Re:mark is approximately Rs.?…..??.., and the project fee
shall not exceed this Rs.?…..?? unless Aptech materially revises the
specifications of the Modifications and the parties mutually agree to revise
the Service Fee.
DELIVERY SCHEDULE
Based on a start date of [Date] and the above-listed assumptions,
Infodata anticipates delivery of the above-described enhancements by the
Alphs (feature-complete) date requested by Aptech of [Date] Infodata will
provide a weekly Project report to Aptech?s Project Manager and identify
any delays or ?red flags? as early in the development process as possible.
SERVICE FEES
Aptech shall pay the Service Fee in instalments based upon calendar
dates and/or the successful completion of certain milestones:
(i) Rs.  ???.?.. payable upon signing of the Letter of Intent;
(ii) Rs.  ?…..??.. payable on [Date];968 CONVEYANCING, DRAFTING & DEEDS [Ch. 73
(iii) Rs.  ?......??. payable on [Date];
(iv) Rs.  ?…….?? payable on [Date];
(v) Rs.  ?……….?. payable upon Apteach?s acceptance of the Alpha
Version of the Modified Remark Software;
(vi) Rs.  ?……?? (or the remaining Service Fee, if the Service Fee
was revised by agreement of the parties) paid upon Aptech?s
acceptance of the Release Candidate of the Modified Remark
Software.
SERVICE FEE REDUCTION
If Infodata fails to deliver the Modifications and the Alpha Version of the
Modified Remarks Software by [Date] (through no delay or fault of Aptech?s),
the Service Fee payment due upon acceptance of the Alpha  Version
(Rs.  ??……….?) shall be reduced by 10% (Rs.  ?………..??.).
ACCEPTANCE PROCEDURES
Upon receipt of any deliverables by Infodata (e.g., Alpha Version, Beta
Version, Release Candidate), Aptech will test and accept or reject such
deliverables within two weeks of its receipt. If any release of the Modifica-
tions or Modified Re:mark Software fails to meet any of the requirements
in the Modification Plan or in the event that Infodata fails to provide the
deliverable in accordance with the schedule provided within the Modifica-
tion Plan, Aptech shall notify Infodata in writing, and Infodata shall have an
additional fourteen (14) calendar days (the ?Correction Period?) in which
to correct or modify the deliverables to meet the requirements or to provide
the deliverables, and to resubmit or submit such deliverables to Aptech for
testing. If the deliverables fail to meet the requirements at the end of the
Correction Period, then at Aptech?s option, (1) the Correction Period may
be extended as may be agreed by the parties, (2) Aptech may terminate
the applicable Consulting Agreement or the Agreement, or (3) Aptech may
supply, correct or complete the deliverable item and either deduct an
amount equal to Aptech?s fully-burdened costs (including without limitation
direct internal labour and fringe benefits and any sums, including royalties,
paid to third parties) from any payments due to Infodata or receive a refund
from Infodata for such costs up to the total amount of the Service Fee paid
by Aptech hereunder.  For the purpose of calculating Aptech?s fully-
burdened costs pursuant to sub-section (3) of this paragraph, internal
labour costs shall be expensed at a rate of Rs.  ????.. per man-hour.
Aptech?s fully-burdened costs shall be base if Aptech does not notify
Infodata in writing of its rejection of a deliverable within two weeks of its
receipt by Aptech, then Aptech shall be deemed to have accepted such
deliverables.
APTECH REQUIREMETNS
In connection with the development undertaken by Infodata pursuant to
this Modification Plan, Apteach shall undertake the following:Ch. 73] PROJECT CONSULTANCY AND SERVICE AGREEMENT?FORMS 969
1. Aptech will extend the FDF format of Acrobat to support an
annotation creation feature.
2. Aptech will provide technical assistance to Infodata engineers in
implementing the Summarize Notes feature, particularly with
respect to Acrobat double byte text annotations.
3. Aptech will generate the Localization Kit to assist in the localization
of the Modified Remark Software.
4. Aptech will perform the translation of Re:mark strings to all other
languages besides English.
5. Aptech will extent the FDF toolkit to support  ?annotations? to
support Import and Export of Remark annotations in the FDF
format.
6. Aptech will provide one senior engineer to work on the Modifica-
tions from the agreed upon start date of this project till the release
of Acrobat 4.0.
7. Aptech will provide engineering  assistance in making Re:mark
dialog boxes run under Netscape and Internet Explorer browsers.
8. Aptech will provide technical assistance as necessary to Infodata
to help get approval of the Re:mark internal format (including
Annotation Security) from the ?PDFLang? committee.
9. Aptech will provide Infodata standard third-party access to certain
engineering servers, subject to written agreement and a specified
level of access.
10. Acrobat?s HTTP stack will, at a minimum, support HTTP 1.1. State
Management (cookies) (EFS).
EXHIBIT B
Aptech Systems Incorporated Insider Trading Policy Statement
A. PURPOSE:
The purpose of this insider trading policy statement is to establish
guidelines to ensure that all Aptech employees and contractors and the
corporation itself comply with laws prohibiting trading in stock by persons
having knowledge of material non public information (?Insider Information?).
Employees or contractors who trade on Insider Information (or tip informa-
tion to others) can be personally liable for damages totaling up to three times
the profits made or loss avoided by the individual trading with inside
information. Insider trading is also a crime which can result in a fine (no
matter how small the profit) and a jail term of specified period.
B. TRADING WHILE IN POSSESSION OF INSIDER INFORAMTION:
No employee or contractor in possession of Insider Information should
trade in Aptech stock from the time he/she obtains such Insider Information970 CONVEYANCING, DRAFTING & DEEDS [Ch. 73
until the third business day following a press release of such Insider
Information by Aptech. For example, if the press release goes on the
Businesswire Tuesday before the stock market opens, trading cannot occur
until Thursday morning. If the press release goes out after the stock market
closes on Tuesday, trading cannot occur until Friday morning when the
market reopens.
If you have any concerns about whether you are in possession of
information which falls within the definition of Insider Information, or if you
are in a sensitive position within Aptech, you should contact Aptech?s Vice-
President of Finance, or Aptech?s General Counsel, before you buy or sell
Aptech stock. This will ensure that employees or contractors unaware of
a particular piece of information do not give the appearance of improperly
trading in Aptech stock.
If you have received Insider Information, you should not disclose this
information to anyone outside of Aptech. You also should not disclose this
information, in writing or casually, to any other Aptech employee or
contractor unless that employee or contractor has a need to know the
information in order to perform his or her job.  When you provide Insider
Information to an Aptech employee or contractor, you should inform him or
her that it is Insider Information and that the employee or contractor is
restricted from trading in Aptech stock until the third business day following
a press release of such information by Aptech. You should also notify
Aptech?s General Counsel of any Aptech employee or contractor who
receives Insider Information.
C. POLICY STATEMENT:
Employees or contractors of Aptech should not buy or sell Aptech stock
or options while in the possession of Insider Information.  Employees or
contractors also should not (1) reveal Insider Information to third parties for
the purpose of assisting their trading activities or, (2) make buy or sell
recommendations to third parties based upon such Insider Information.
Employees or contractors who knowingly trade Aptech stock while in the
possession of Insider Information will be subject to appropriate disciplinary
action.
In order to avoid placing employees or contractors in a position in which
they are prevented from trading Insider Information should be limited to a
small group of employees who ?need to know such information in order to
perform their jobs?. If, however, Aptech management becomes aware that
Insider Information has been leaked widely within Aptech, then Aptech
management will impose a ban on trading for all employees and contrac-
tors.
In order to avoid selective disclosure of Insider Information to parties
outside of Aptech, employees or contractors should refer any requests for
financial information or financial projections to the  Vice-President ofCh. 73] PROJECT CONSULTANCY AND SERVICE AGREEMENT?FORMS 971
Finance. This includes requests by analysts or others to corroborate their
financial projections for Aptech. Other inquiries from the investing commu-
nity or the press should be referred to, or cleared, by, Director of Corporate
Communications, in order to ensure that Insider Information is not inadvert-
ently disclosed. Product managers for each of the Aptech products should
of course feel free to discuss any non-confidential matters relating to their
products with the press and others.
D. WHO IS AN INSIDER?
An Insider is anyone who possesses Insider Information. Example: An
OEM Business Manager knows that Aptech has signed an OEM agreement
with a potentially significant customer.  Prior to public announcement of the
relationship, the OEM Business Manager is an Insider because of his/her
knowledge of the existence of this material, new OEM. Example: Aptech
holds a company meeting on the day quarterly earnings results are publicly
announced. The employees are Insiders until the third business day after
the results are released [See Paragraph B (?Trading, While in Possession
of Insider Information?) above].
E. DEFINITION OF INSIDER INFORMATION :
Insider Information means material information which has not been
disclosed to the public that has a substantial likelihood of affecting a
reasonable investor?s decision to buy, sells, or hold Aptech?s securities or
that would significantly affect the market price of Aptech?s securities.
Examples of Insider Information :
? Negotiation and/or execution of an OEM contract with a potentially
significant, unannounced customer or loss of a significant OEM.
? Quarterly or annual financial results of Aptech as a whole or the
financial results of either the Systems Division or the Application
Products Division before they are announced.
? Major new announced products.
? Unannounced dividend information.
? Unannounced stock splits.
? Unannounced major financing.
? Unannounced significant personnel changes.
? Unannounced significant acquisitions or dispositions of assets.
? Unannounced significant litigation.
The materiality of preliminary merger negotiations depends upon a
balancing of the probability that the transaction will occur and its signifi-
cance to Aptech.
F. INTERPRETATION :
If you have questions about the scope or application of this Policy
Statement, please see Aptech?s General Counsel.972 CONVEYANCING, DRAFTING & DEEDS [Ch. 73
6 6 6 6 6
Project Consultancy Agreement for Engineering Services Project Consultancy Agreement for Engineering Services Project Consultancy Agreement for Engineering Services Project Consultancy Agreement for Engineering Services Project Consultancy Agreement for Engineering Services
THE SCHEDULE
This Schedule (which includes any attachments) sets out the particulars
of the attached Terms of Consultancy.  It and the Terms of Consultancy
constitute the Agreement.
Background: The Consultant has agreed to carry out the Consultancy
upon the terms of the Agreement.
Company: [Name] ?????………………………………………….
[Address] ??………………………………………………..
Consultant:  [Name] ???……………………………………………….
[Address] ?????………………………………………
Deliverables: [Products ???............................................??]
………………………………………………………………………………………………….
Fee: [Amount] ?????……………………………….?……
Payment Arrangements
for Fee [As set out under clause 6 below].??…….?..?
Governing Law: [India] ????………………………………………………
Location: [Place] ???………………………………………………..
Nominated
Employee(s): [As stated hereinafter] ??………………………….?.
Period: [As stated hereinafter]……………………………………..
Services: [As specified herein]……………………………………………………..
…………………………………………………………………………………………………..
…………………………………………………………………………………………………..
Specification: As stated hereinafter]……………………………………………..
Acceptance Test: [As specified in clause 3 hereinafter]………………….
……………………………………………………………………………………………………
Rights required in
relation to Third Party
Material:  [As specified hereinafter]…………………………………………..
…………………………………………………………………………………………………..
Date of Signing:Ch. 73] PROJECT CONSULTANCY AND SERVICE AGREEMENT?FORMS 973
By executing below, the parties agree to be bound by the terms of
this Schedule and the attached Terms of Consultancy.
Signed for and on behalf of the Singed for and on behalf
Consultant by: of the Company by:
…………………………………………   …………………………………………….
Signature Sinature
Name   Name
……………………………………….. ………………………………………………
Witness: Witness:
……………………………………….. ………………………………………………
Terms of Consultancy
It is Agreed:
1. Definitions and Interpretation.?In addition to the terms described
in the Schedule the following definitions shall apply in the Agreement except
where the context otherwise requires:
?Consultancy? means
(a) the delivery of the Deliverables;
(b) the provision of the Services; and
(c) the obtaining of the Rights required in relation to the Third Party
Material specified in Schedule,
in accordance with the Specification and these Terms of Consultancy;
?Third Party Material? means material in any form, the intellectual
property rights subsisting in which are owned by or exclusively licensed by
a third party.
2. Consultancy.
2.1. The Consultant must carry out the Consultancy in accordance with
the Specification and this Agreement.
2.2. Without limiting the generality of clause 2.1  the Consultant must,
in the carrying out the Consultancy, conform with all reasonable directions
of the Company which shall include but not be limited to require the
Nominated Employees to adhere to standards of dress, decorum, safety
and behaviour whilst providing  the Services.
2.3. The Consultancy must be carried out at the Location and during
the Period between 9 a.m. and 6 p.m. Monday to Friday, or at such other
location and times within the period as the Company determines.  Time shall
be of the essence in the carrying out of the Consultancy.974 CONVEYANCING, DRAFTING & DEEDS [Ch. 73
2.4. The Consultancy must be provided by the Nominated Employees.
If the Nominated Employees cannot perform the Consultancy, the Consult-
ant agrees to immediately consult the Company and make available
alternative employees to perform the Consultancy.  If, in the Company?s
opinion, the Consultancy cannot be satisfactorily performed by the sug-
gested alternative employees, the Company shall be at liberty to terminate
the Agreement. If the Company agrees to the appointment of any alternative
employees, any reference to  ?Nominated Employees? in the Agreement
shall include such employees.
2.5. The Consultant  agrees:
(a) to carry out the Consultancy in accordance with  first class
industry standards:
(b) to obtain all necessary licences, permissions and approvals
relative to the carrying out of the Consultancy and the use by
the Company of the Deliverables and any other material made
or contributed to by the Consultant and the Nominated
Employees in the provision of the Services;
(c) It has full right, power and authority to enter into the Agree-
ment and to grant to the Company the rights and to provide
the Consultancy, as set out in the Agreement;
(d) the Deliverables will be of merchantable quality and fit for their
purpose.
2.6. Whilst on the Company?s premises, the Consultant will comply with
all security and other direction given to it by the Company.
3. Acceptance Test.
3.1. An Acceptance Test of the Deliverables shall be carried out by the
Company on the dates and in the manner set out in the Schedule to ensure
that the Deliverables conform to the Specification.
3.2. If the Deliverables fail the Acceptance  Test, the Consultant will make
required corrections to the Deliverables (including any rectifications sug-
gested by the Company) and re-submit the Deliverables to the Company
within thirty days of first delivery of the Deliverables or as otherwise agreed
between the parties.
3.3. If upon re-submission of the Deliverables in accordance with clause
3.2, the Deliverables again fail the Acceptance Test, the Company may, in
its absolute discretion either:
(a) accept the Deliverables, or part of the Deliverables, and pay a
proportion of the Fee as the Company reasonably determines fair;
or
(b) reject the Deliverables and be under no obligation to pay the Fee.
3.4. If the Deliverables pass the Acceptance  Test, either upon  first
delivery or re-submission, the Company must accept them.Ch. 73] PROJECT CONSULTANCY AND SERVICE AGREEMENT?FORMS 975
4. Third Party Material.?Where the Deliverables include Third Party
Material, the Consultant must procure for the Company the Rights required
in relation to Third Party Material specified in the Schedule.
5. Consultant?s Employees.
5.1. The Consultant acknowledges that it is solely responsible for the
payment, or deduction (as the case may be) of income, profession tax,
superannuation contributions, sickness pay, long service leave entitle-
ments, termination and/or redundancy entitlement, workers?  compensation
cover, and all other payments, deductions and employee related entitle-
ments (whether statutory or otherwise) relating to the Nominated Employ-
ees.
5.2. The Consultant indemnifies the Company in relation to any claim
made by any Nominated Employee against the Company arising out of or
in relation to the carrying out of the Consultancy.
5.3. The Consultant is responsible for the safety and training of the
Nominated Employees whilst performing the Consultancy and for obtaining
licences, permission, approvals and consents required to perform the
Consultancy.
5.4. The Consultant agrees that:
(a) it is free and able to provide the Nominated Employees? services
for the term of the Agreement;
(b) it will not provide the Nominated Employee?s services to any other
person, firm or corporation or otherwise restrict the free availabiity
of the Nominated Employee?s services to the Company during the
term of the Agreement;
(c) it is shall ensure that the Nominated Employees sign the Letter of
Inducement attached to the Agreement prior to, or simultaneously
with, signing the Agreement; and
(d) it shall co-operate fully with the Company, its servants and/or
agents at all times during the currency of the  Agreement.
6. Payment.
6.1.  The Company will pay the Fee to the Consultant at the times and
in the manner outlined in the Schedule. If, at the time when any part of the
Fee becomes due, the Consultant is in breach of its obligations under the
Agreement the Deliverables have not satisfied the Acceptance Test and the
Consultant has not carried out the Consultancy to the reasonable satisfac-
tion of the Company, the Company is under no obligation to pay the Fee
to the Consultant in accordance with this clause.
6.2. The Fee represents the total amount payable under the Agreement
to the Consultant and is inclusive of all Government levies, taxes, charges
incurred by the Consultant in performing the Consultancy and any costs
incurred by the Consultant in obtaining of the Third Party Licences.976 CONVEYANCING, DRAFTING & DEEDS [Ch. 73
7. Confidential Information and Equipment.?The Consultant will
not, except as authorised by the Company or required in carrying out the
Consultancy, use or divulge the Company?s confidential information or use
any Company equipment.
8. Return of Property.?The Consultant agrees that upon cessation of
the Consultancy or otherwise upon the Company?s request, the Consultant
will immediately return all Company property (including confidential infor-
mation) in any form and will not keep copies of such property or information
in any form.
9. Intellectual Property.? The Company will own, all intellectual prop-
erty rights (including without limitation, rights in respect of patents,
copyright, designs and  trade marks) and other rights relating to and
subsisting in the Deliverables and any other material made or contributed
to by the Consultant or any of the Nominated Employees in the provision
of the Services, other than intellectual property rights subsisting in the Third
Party Material.
10. Termination.?The Company may terminate the Agreement by
written notice to the Consultant if in the reasonable opinion of the Company,
the Consultant is in breach of its obligations under the Agreement and fails
to remedy that breach within twenty-one days of the being requested in
writing by the Company so to do.
11. Indemnity.?The Consultant  releases and  indemnifies  the Com-
pany, its officers, employees, agents and sub-contractors (the ?Indemni-
fied?) from and against all actions, claims, proceedings or demands
(?Claims?) which may be brought against the Indemnified, in respect of any
loss, death, injury, illness or damage (whether personal or property, and
whether direct or consequential, including consequential financial loss) and
any infringement of intellectual property rights arising in any way out of the
performance of the Consultancy or the use or commercial exploitation of
the Deliverables or any material made or contributed to in the provision of
the Services and from and against all damages, costs (including legal costs
computed on an indemnity basis) and expenses incurred in defending or
settling any Claim.
12. Relationship.?The Company and Consultant agree that their
relationship is one of principal  and  independent contractor and not of
agency, partnership or employment.
13.  Sub-contracting.?The Consultant must not sub-contract all or any
of the Consultancy without the prior written consent of the Company.
14. Insurance.?The Consultant must maintain insurance to the full
effect of any potential liability for damage or loss suffered or incurred by
any person or organisation (including the company) arising out of or in
relation to the Consultancy or use or commercial exploitation of the
Deliverables or any other material made or contributed by the Consultant
or any Nominated Employee in the provision of the Services.Ch. 73] PROJECT CONSULTANCY AND SERVICE AGREEMENT?FORMS 977
15. Assignment.?The Company may assign its rights under the
Agreement. The Consultant must not assign its rights and obligations under
the Agreement without the consent of the Company.
16. Third Party Proceedings.?The Consultant will at the reasonable
cost of the Company provide the Company with such reasonable assis-
tance as the Company requires in any litigation arising out of or in relation
to the use or commercial exploitation of any or all of the Deliverables or any
other materials made or contributed by the Consultant or any of the
Nominated Employees in the provision of the Services.
17. Entire Agreement.?This Agreement constitutes the entire under-
standing of the parties on the Consultant?s engagement with the Company
and prevails over all other representations whether oral or in writing made
prior to the date of the Agreement.
18. Amendment.?This Agreement cannot be amended except in
writing signed by both the parties.
19. Continuing Obligations.?The obligations contained in clauses 7
(Confidential Information), 8 (Return of Property), 9 (Intellectual Property),
10 (Moral Rights), 12 (Indemnity), 15 (Insurance) and 17 (Third Party
Proceedings) will continue after termination of the Agreement.
IN  WITNESS  WHEREOF the parties hereto have executed these
presents on the day and the year first above written.
Signature on behalf of the Company
Signature on behalf of the Consultant
WITNESSES:
1.
2.
LETTER OF INDUCEMENT BY EMPLOYEE/NOMINEE OF CONSULTANT
As an inducement to ??…………………………..??. (?Company?) to
enter into an Agreement with ?…………..??. (?Consultant?) under which
the Consultant is to provide my services as (?Agreement?) I, ??………??
of ??………..??.I acknowledge and agree as personal representations
to the Company that:
1. I am familiar with the terms and conditions of the Agreement.
2. There is a valid and subsisting Agreement between the Consultant
and myself pursuant to which the Consultant has the right to enter
into the Agreement and to provide my services.
3. I will render my services to the Consultant and through it, to the
Company, in accordance with, and as provided in the Agreement.
G : CDD (Vol. 8) ? 62978 CONVEYANCING, DRAFTING & DEEDS [Ch. 73
4. I shall be personally bound by the obligations of the Consultant in
the Agreement and by the covenants and warranties given by the
Consultant.
5. For the avoidance of doubt I assign any copyright and all other
rights of whatsoever nature in the products of any services
pursuant to the Agreement to the Consultant, including the
Deliverables as described in the Agreement, absolutely for the full
period of copyright protection throughout the world; and
Signed Sealed and Delivered by :
Signature: ..................................................
Name: ........................................................
Date of Signing: ........................................
7 7 7 7 7
Project Consultancy Service Agreement Project Consultancy Service Agreement Project Consultancy Service Agreement Project Consultancy Service Agreement Project Consultancy Service Agreement
[Another Form]
THIS AGREEMENT is made on this??……?? day of ????, 20?.
BETWEEN [Name]???……………………..?. etc. hereinafter called  ?Con-
sultant?) of the ONE PART AND [Name] ??……………………………??. Com-
pany Ltd., etc. (hereinafter called ?Company?) of the OTHER PART.
WITNESSES as follows:
1. Services and Payment.?Consultant agrees to undertake and
complete the Services (as defined in Exhibit A) in accordance with and on
the schedule specified in Exhibit A. As the only consideration due Consult-
ant regarding the subject-matter of this Agreement, Company will pay
Consultant in accordance with Exhibit A.
2. Ownership; Rights; Proprietary Information; Publicity.?
(a)  Company shall own all right, title and interest (including patent rights,
copyrights, trade secret rights, mask work rights, trademark rights [sui
generis database rights] and all other [intellectual and industrial property]
rights [of any sort] throughout the world) relating to any and all inventions
(whether or not patentable), works of authorship, mask works, designa-
tions, designs, know-how, ideas and information made or conceived or
reduced to practice, in whole or in part, by Consultant [during the term of
this Agreement that relate to the subject-matter of, or arise out of, the
Services] [in connection with Services] or any Proprietary Information (as
defined below) (collectively,  ?Inventions?) and Consultant will promptly
disclose and provide all Inventions to Company. [All Inventions are work
made for hire to the extent allowed by law and, in addition,] ConsultantCh. 73] PROJECT CONSULTANCY AND SERVICE AGREEMENT?FORMS 979
hereby makes all assignments necessary to accomplish the foregoing
ownership.  Consultant shall further assist Company, at Company?s ex-
pense, to further evidence, record and perfect such assignments, and to
perfect, obtain, maintain, enforce, and defend any rights assigned. Consult-
ant hereby irrevocably designates and appoints Company as its agents and
attorney-in-fact to act for and  in Consultant?s behalf to execute and file any
document and to do all other lawfully permitted acts to further the foregoing
with the same legal force and effect as if executed by Consultant.
(b) Consultant agrees that all Inventions and all other business, technical
and financial information (including, without limitation, the identity of and
information relating to customers or employees) Consultant develops,
learns or obtains [during the period over which it is (or is supposed to be)
providing Services that relate to Company or the business or demonstrably
anticipated business of Company] [in connection with Services] or that are
received by or for Company in confidence, constitute  ?Proprietary Informa-
tion?. Consultant will hold in confidence and not disclose or, except in
performing the Services, use any Proprietary Information. However, Con-
sultant shall not be obligated under this paragraph with respect to
information Consultant can document is or becomes readily publicly
available without restriction through no fault of Consultant. Upon termina-
tion and as otherwise requested by Company, Consultant will promptly
return to Company all items and copies containing or embodying Propri-
etary Information, except that Consultant may keep its personal copies of
its compensation records and this Agreement. [Consultant also recognizes
and agrees that Consultant has no expectation of privacy with respect to
Company?s telecommunications, networking or information processing
systems (including, without limitation, stored computer files, e-mail mes-
sages and voice messages) and that Consultant?s activity, and any files or
messages, on or using any of those systems may be monitored at any time
without notice.]
[(c) As additional protection for Proprietary Information, Consultant
agrees that during the period over which it is (or is supposed to be) providing
Services [(i)] and for one year thereafter, Consultant will not encourage or
solicit any employee or consultant of Company to leave Company for any
reason [and (ii) Consultant will not engage in any activity that is in any way
competitive with the business or demonstrably anticipated business of
Company, and Consultant will not assist any other person or organization
in competing or in preparing to compete with any business or demonstrably
anticipated business of Company].
(d)  To the extent allowed by law, Section 2.a [and any license to
Company hereunder] includes all rights of paternity, integrity, disclosure
and withdrawal and any other rights that may be known as or referred to
as  ?moral rights?,  ?artist?s rights, ?  ?droit moral?, or the like.  [Furthermore,
Consultant agrees that notwithstanding any rights of publicity, privacy or980 CONVEYANCING, DRAFTING & DEEDS [Ch. 73
otherwise (whether or not statutory) anywhere in the world and without any
further compensation, (i) Company may and is hereby authorised to use
Consultant?s name in connection with promotion of its business, products
and services and to allow others to do so, and (ii) if the Services include
(or Consultant otherwise provides) any acting, singing dancing, voice,
modeling, posing or similar activity, Company also may and is hereby
authorized to (and to allow others to) use, reproduce, disseminate, alter and
otherwise exploit any results of such activity (including, without limitation,
any manner in which such activity may be recorded or remembered or
modified) or derivatives or extensions or limitations thereof in any manner
Company sees fit.] To the extent any of the foregoing is ineffective under
applicable law, Consultant hereby provides any and all ratifications and
consents necessary to accomplish the purposes of the foregoing to the
extent possible.  Consultant will confirm any such ratifications and consents
from time to time as requested by Company.  If any other person provides
any Services [or provides services similar to any of those referred to in
clause (ii) above in this paragraph in connection with the Services],
Consultant will obtain the foregoing ratifications, consents and authoriza-
tions from such person for Company?s exclusive benefit.
(e)  [If any part of the Services or Inventions is based on, incorporates,
or is an improvement or derivative of, or cannot be reasonably and fully
made, used, reproduced, distributed and otherwise exploited without using
or violating technology or intellectual property rights owned or licensed by
Consultant and not assigned hereunder, Consultant hereby grants Com-
pany [and its successors] a perpetual, irrevocable, worldwide royalty-free,
non-exclusive, sublicensable right and license to exploit and exercise all
such technology and intellectual property rights in support of Company?s
exercise or exploitation of the Services, Inventions, other work performed
hereunder, or any assigned rights (including any modifications, improve-
ments and derivatives of any of them).]
3. Warranty.?Consultant warrants that:
(i) the Services will be performed in a professional and workmanlike
manner and that none of such Services or any part of this
Agreement is or will be inconsistent with any obligation Consultant
may have to others;
(ii) all work under the Agreement shall be Consultant?s original work
and none of the Services or Inventions or any development, use,
production, distribution or exploitation thereof will infringe, misap-
propriate or violate any intellectual property or other right of any
person or entity (including, without limitation, Consultant); and
(iii) Consultant has the full right to allow it to provide the Company with
the assignments and rights provided for herein.
4.   Termination.?If either party materially breaches a material provisionCh. 73] PROJECT CONSULTANCY AND SERVICE AGREEMENT?FORMS 981
of this Agreement, the other party may terminate this Agreement upon…….
days?  notice unless the breach is cured within the notice period. Company
also may terminate this Agreement at any time, with or without cause, upon
??. days?  notice, but, if (and only if) without cause, Company shall upon
termination pay Consultant all unpaid amounts due for Services completed
prior to [notice of] termination. Section 2 (subject to the limitation on Section
2.c stated therein) through 8 of this Agreement and any remedies for breach
of this Agreement shall survive any termination or expiration. Company may
communicate such obligation to any other (or potential) client or employer
of Consultant.
5. Relationship of the Parties.?Notwithstanding any provision hereof,
for all purposes of this Agreement each party shall be and act as
independent contractor and not as partner, joint venture, or agent of the
other and shall not bind nor attempt to bind the other to any contract.
Consultant is an independent contractor and is solely responsible for all
taxes, withholdings, and other statutory or contractual obligations of any
sort, including, but not limited to, Workers? Compensation Insurance; and
Consultant agrees to defend, indemnify and hold Company harmless from
any and all claims, damages, liability, attorneys?  fees and expenses on
account of (i) an alleged failure by Consultant to satisfy any such obligation
or any other obligation (under this Agreement or otherwise) or (ii) any other
action or inaction of Consultant. If Consultant is a corporation, it will ensure
that its employees and agents are bound in writing to Consultant?s
obligations under this Agreement.
6. Assignment.?This Agreement and the services contemplated
hereunder are personal to Consultant and Consultant shall not have the
right or ability to assign, transfer, or subcontract any obligations under this
Agreement without the written consent of Company. Any attempt to do so
shall be void.
7. Notice.?All notices under this Agreement shall be in writing, and
shall be deemed given when personally delivered, or three days after being
sent by prepaid certified or registered mail to the address of the party to
be noticed as set forth herein or such other address as such party last
provided to the other by written notice.
8. Miscellaneous.?Any breach of Section 2 or 3 will cause irreparable
harm to Company for which damages would not be a adequate remedy,
and, therefore, Company will be entitled to injunctive relief with respect
thereto in addition to any other remedies.  The failure of either party to
enforce its rights under this Agreement at any time for any period shall not
be construed as a waiver of such rights. No changes or modifications or
waivers to this Agreement will be effective unless in writing and signed by
both parties.  In the event that any provision of this Agreement shall be
determined to be illegal or unenforceable, that provision will be limited or982 CONVEYANCING, DRAFTING & DEEDS [Ch. 73
eliminated to the minimum extent necessary so that this Agreement shall
otherwise remain in full force and effect and enforceable. This Agreement
shall be governed by and construed in accordance with the laws of [Country
Name] [In any action or proceeding to enforce rights under this Agreement,
the prevailing party will be entitled to recover costs and attorneys fees.]
Headings herein are for convenience of reference only and shall in no way
affect interpretation of the Agreement.
IN WITNESS WHEREOF the parties hereto have executed these presents
on the day and the year first above written.
SIGNED SEALED AND DELIVERED
BY THE CONSULTANT
AT?????……………………….
In the presence of :
WITNESSES:
1.
2.
SIGNED SEALED AND DELIVERED
BY THE COMPANY & ITS COMMON SEAL IS AFFIXED
BY THE AUTHORISED SIGNATORY
AT???………………………..??
In the presence of :
WITNESSES:
1.
2.
8 8 8 8 8
Project engineering service system design, construction Project engineering service system design, construction Project engineering service system design, construction Project engineering service system design, construction Project engineering service system design, construction
and inspection agreement and inspection agreement and inspection agreement and inspection agreement and inspection agreement
THIS AGREEMENT made on this day of ???.., 20?. BETWEEN ALAMOSA
PCS, LIC (hereinafter called the ?Owner?) and HICKS & RAGLAND ENGINEER-
ING CO., INC. (hereinafter called the ?Engineer?).
WHEREAS, the Owner proposes to implement certain additions, rehabili-
tations or improvements to its system (all such improvements, rehabilita-
tion, new construction with its associated facilities being hereinafter called
the ?Project?);
AND WHEREAS, the Owner desires the Engineer to perform certain
engineering services in connection with the Project;Ch. 73] PROJECT CONSULTANCY AND SERVICE AGREEMENT?FORMS 983
AND WHEREAS, the Engineer represents that it has access to sufficient
experienced personnel and equipment to perform such engineering ser-
vices for the Project.
NOW, THEREFORE, in consideration of the mutual undertakings herein
contained, the parties hereto agree as follows:
1. Financing of the project.?The financing of the Project, including
costs of materials, construction, installation, and engineering will be the
responsibility of the Owner.
2. General Obligation.?The Engineer shall diligently and competently
render engineering services which shall be reasonably necessary or
advisable for the expeditious, economical, and sound design of that portion
of the Project included in the attachments and for such other preparatory
work as is necessary to place such portion of the Project in service, except
where such duties are excluded from the terms of this Agreement.
2.1. Description of project.?The Engineer shall perform the services
identified in the Attachments for the Owner?s Project as described in general
below.
Provide Engineering Services for implementation of a PCS System in
the Owner?s Markets.  The Owner, as an Affiliate of Mobitel, has the rights
to serve areas in Mumbai, New Delhi, Bangalore and Madras as defined
in the Mobitel agreement Service Area. The Scope of Work  is outlined in
Attachment C.  The Contract will cover the deployment of mobile switching
centers and base stations for the Pre-op period, year 1 and year 2.
Estimates are based upon the deployment of three switching centers:
Mumbai, Bangalore and New Delhi. Estimates are also based upon
deployment of owner supplied base station estimates. The estimated fees
are based upon base station deployment as follows: pre op ? 103 base
stations, year 1 ? 89 base stations, and year 2 ? 25 base stations.  The Pre
op Period will run through December 2005. Year 1 services will be from
January 2006 through December 2006,  Year 2 services will be from January
2007 through December 2007. This contract excludes services associated
with tower and site work, which will be provided by others.
3.  Terms and Conditions.
3.1. Insurance.?The Engineer shall take out and maintain throughout
the contract period the following minimum insurance:
(a) Workmen?s compensation insurance in statutory limits covering all
employees of the Engineer who shall perform any of the obligations
of the Engineer hereunder, whether or not such insurance is
required by the laws of the State governing the employment of any
such employee.  If any employee is not subject to the workmen?s
compensation laws of such State, such insurance shall extend to
such employee, voluntary coverage to the same extent  as though
such employee were subject to such laws.984 CONVEYANCING, DRAFTING & DEEDS [Ch. 73
(b) Public liability and property damage liability insurance covering all
operations under the contact; limits for bodily injury or death, not
less than Rs.1,00,000 for each occurrence; for property damage,
not less than Rs.5,00,000 for each occurrence and Rs.20,00,000
aggregate for occurrences during the policy period.
(c) Automobile liability insurance on all vehicles used in connection
with the contract whether owned, non-owned, or hired; public
liability limits of not less than Rs.1,00,000 for one person and
Rs.5,00,000 for each occurrence; property damage limit of
Rs.10,00,000 for each occurrence.
The Engineer shall furnish the Owner a certificate evidencing compli-
ance  with the foregoing requirements, which shall provide not less than
thirty (30) days prior written notice to the Owner of any cancellation or
material reduction in the insurance.
3.2. Project Schedule.?The Engineer shall prepare in collaboration
with the Owner, a work and progress report schedule.
3.3. Plans and Specifications.?Complete and detailed plans and
specifications, drawings, maps, and other documents as required for the
construction of the Project (all of the foregoing being herein sometimes
collectively called the (?Plans and Specifications?), shall be prepared by the
Engineer, pursuant to the various Attachments to this Agreement, and
made a part hereof.
3.4. Governing Law.?The laws of India as well as the State laws shall
govern this Agreement where the work will be performed.
3.5. Standards.?All maps, drawings, plans, specifications, estimates,
studies and other documents required to be prepared or submitted by the
Engineer under this Agreement shall conform to required I.S.O. standards
generally acceptable at the date of this Agreement.
3.6. Termination by the Owner.?The Owner may at any time terminate
this Agreement for cause by giving notice to the Engineer, in writing, to that
effect not less than thirty (30) days prior to the effective date of termination
specified in this notice.  Such notice shall be deemed given if delivered or
mailed to the last known address of the Engineer.  From and after the
effective date specified in such notice this Agreement shall be terminated.
In the event of such termination, the Owner shall immediately pay Engineer
for all work performed on a Time and Expense basis prior to the date of
termination.
3.7. Termination by the Engineer.?The Engineer may at any time
terminate this Agreement by giving notice to the Owner, in writing, to that
effect not less than thirty (30) days prior to the effective date of termination
specified in this notice.  Such notice shall be deemed given if delivered or
mailed to the last known address of the Owner.  From and after the effective
date specified in such notice this Agreement shall be terminated, exceptCh. 73] PROJECT CONSULTANCY AND SERVICE AGREEMENT?FORMS 985
that the Engineer shall be entitled to receive compensation for services
performed hereunder, computed and payable as set forth in Sections 3,
3.06 and 3.13.
3.8.  Ownership of Documents.?All reports, plans, specifications,
computer files and other documents prepared by the Engineer as instru-
ments of service shall remain the property of the Engineer. The Engineer
shall retain all Intellectual and Property rights, statutory and other reserved
rights including copyrights.
3.9.  Employees?  Qualifications.?Person qualified to perform such
duties efficiently shall perform the obligations and duties to be performed
by the Engineer under this Agreement. The Engineer, if the Owner shall so
direct, shall promptly replace any resident engineer or other person
employed by the Engineer in connection with the Project.
The term engineer or resident engineer as used in this Agreement shall
mean a person properly trained and experienced to perform the services
required under the terms of this Agreement, and does not mean that the
person performing those duties must be a licensed or a registered
professional engineer.
3.10. Licence.?The engineer shall comply with all applicable statutes
pertaining to engineering and warrants that David E. Sharbutt who will be
in responsible charge of the Project possesses the required licence to
undertake the project work.
3.11. Payments of Engineer?s Employees.?Prior to the time when
any payment shall be made to the Engineer pursuant to this Agreement,
the Engineer, as requested by the Owner, shall furnish to the Owner, as
a condition precedent to such payment, a certificate to the effect that all
salaries or wages earned by the employees of the Engineer in connection
with the Project have been fully paid by the Engineer up to and including
a date not more than thirty (30) days prior to the date of such invoice. Before
the time when the final payment provided to be made pursuant to this
Agreement shall be made to the Engineer by the Owner, the Engineer shall
also furnish to the Owner as a condition precedent to such payment a
certificate that all of the employees of the Engineer have been paid by him
for services rendered by them in connection with the Project, and that all
other obligations which might become a lien upon the Project have been
paid.
3.12. Engineer?s Records.?The Owner shall have the right to inspect
and audit all Payrolls, records, and accounts of the Engineer relevant to the
work for the Purposes of this Agreement and the Engineer agrees to provide
all reasonable facilities necessary for such inspection and audit.
3.13. Compensation.?For the purpose of this Agreement, compensa-
tion for each type of work covered by the Attachments and thereby made
a part of this Agreement shall be as outlined below.986 CONVEYANCING, DRAFTING & DEEDS [Ch. 73
(a)  Time and Expense.?The  Owner shall pay the Engineer for all
service performed pursuant to this Agreement,  ?Time and Expense?
compensation as defined below:
1. Time Rates.?For services defined as Time & Expense, the Time
rates will include all costs associated with the employee except for
those listed in 2 and 3 below.  The hourly rates are identified in the
Attachments and will be multiplied by the number of hours
expended in each job category to determine the Time Rates.
2. Expense Rates.?These will includes subsistence expenses, if
any paid to (or on behalf of) employees, plus reasonable transpor-
tation cost of employees, plus a fee of 7% of billed labour to cover
the cost of prints, mailing and transportation expenses relating to
printed and other materials and equipment, and telephone and
telecommunications expenses.
3. Test Equipment and Computer Usage.?The Owner will pay the
Engineer for the costs of test equipment and computer usage as
identified in the Attachments.
(b)  Review of Rates.?The  Time Rates and  Test Equipment and
Computer usage rates attached are valid until [Date]. Beginning on [Date]
and on each subsequent anniversary of this Agreement new Rates shall
be mutually agreed to by both Parties, until Completion or Termination of
this Agreement.
1. Guaranted Maximum Fee.?The engineering cost identified in
Form P-506 as the Guaranteed Maximum Fee is based upon the
time and expense billing of the project as defined in 2.01 Descrip-
tion of the Project.
2. Contingencies.?The Guaranteed Maximum Fee in this engineer-
ing contract is based upon a set amount of construction. In the
implementation of a PCS project there are many uncertainties.  The
fees do not include any contingency costs that may or may not have
been projected by the Owner. These contingencies, should they
occur, will require additional engineering to ensure that the
Owner?s system perform as required. Should any additional sites,
beyond those identified in 2.01 Description of Project, require
additional engineering expenditures, the Guaranteed Maximum
Fee of this contract will be  automatically amended to add any
additional sites the owner requires due to any contingencies. The
Guaranteed Maximum Fee will be amended upward on a per site
fee.   The per site fee will be the amount of the Guaranteed Maximum
Fee of the original scope divided by the number of sites in the
original scope.
3. Incentive Bonus.?The Owner and the Engineer mutually agreeCh. 73] PROJECT CONSULTANCY AND SERVICE AGREEMENT?FORMS 987
to strive to complete the work defined in this Agreement at a cost
less than the Guaranteed Maximum Fee (GMF) amount defined
in Form P506. As an incentive to reduce the cost of engineering,
if the total billing for the project is less than the amount defined as
the GMF , the Engineer will be paid an amount equal to 50% of the
difference between the GMF and the total billing as an Incentive
Bonus.  The incentive bonus will be paid based upon the identified
periods on the P506 forms as follows.
(a) Pre-op Incentive.?The amount of incentive payable at the conclu-
sion of the pre-op period will be 75% of the calculated incentive amount
due.  The remaining 25% will be held as a reserve for future periods.  The
incentive amount due is calculated by taking the GMF for the pre-op period
less the actual billing as follows:
Incentive amount = [Pre op GMF ? Pre op billing] 50% Incentive
payable ? incentive amount 75%
The incentive payable will be determined within 45 days after the
completion of the pre op period defined in this agreement.
(b)  Year 1 (Contract) Incentive.?The amount of incentive payable at the
conclusion of the year 1 period will be 75% of the calculated incentive
amount due. The remaining 25% will be held as a reserve for future periods.
The incentive amount due is calculated by taking the GMF for all periods
to date less the actual billing for all periods as follows:
Incentive amount = [Pre op GMF + Year 1 GMF ? Pre op billing ?
Year 1 times billing] 50% Incentive payable = Incentive amount
75% ? pre op incentive payable.
The incentive payable will be determined within 45 days after the
completion of the year 1 period as defined in this agreement.
(c)   Year 2 (Contract) Incentive.?The amount of incentive payable at the
conclusion of the contract which is the year 2 period is calculated by taking
the GMF for all periods to date less the actual billing for all periods as follows:
Incentive amount = [Total GME ?  Total billing] 50% Incentive
payable = incentive amount ? total incentive paid to date.
The incentive payable will be determined within 45 days after the
completion of the Contract period as defined in this agreement.
3.14. Taxes.?Compensation payable to the Engineer  under any of the
attachments to this Agreement shall be in addition to taxes, or levies,
(excluding Central, State and Local Taxes and Income Taxes), which may
be assessed against the Engineer directly on services performed or
payments for services performed by the Engineer pursuant to this Agree-
ment. Such taxes or levies, which the Engineer may be required to collect
or pay shall, in turn, be added by the Engineer to invoices submitted to the
Owner pursuant to this Agreement.988 CONVEYANCING, DRAFTING & DEEDS [Ch. 73
3.15.  Interest.?Interest at the rate of TWELVE per cent (12%) per
annum shall be paid by the Owner to the Engineer on any unpaid balance
due to the Engineer, commencing thirty days after the due date, provided
that the delay in payment beyond due date shall not have been caused by
any conditions within the control of the Engineer.  Such compensation shall
be paid ten (10) days after the amount of the interest has been determined.
All amounts received by Engineer shall be applied first to accrued unpaid
interest and then to outstanding invoices for services and associated
expenses.
3.16. Non-Assignment.?The obligations of the Engineer under this
Agreement shall not be assigned without the approval in writing of the
Owner.
3.17.  Attachments.?The following listed Attachments, when checked
in appropriate boxes, are attached to and made a part of this Agreement,
by this reference.
Attachment A ? Hourly Billing Rates
Attachment B ? Test Equipment and Computer Usage Rates
Attachment C ? PCS Engineering Services
Form P506 ? Guaranteed Maximum Fee for PCS
Engineering Services
3.18.  Service Addition.?If after execution of this Agreement, a service
not listed as an Attachment in Paragraph 3.17 above is added to this
Agreement, an amendment to this Agreement is required.
3.19. Invoice Information.?The Engineer shall furnish to the Owner
detailed itemized invoices on a monthly basis.
3.20. Engineering Fee.?The total cost of engineering shall not exceed
the Guaranteed Maximum Fee as set out in Form P506. Any change to the
Scope of Work outlined in Attachment C will require a contract amendment.
3.21. Compensation for corrections.?No compensation shall be due
or payable to the Engineer, pursuant to this Agreement, for any engineering
services performed by the Engineer in connection with effecting of correc-
tions to the Design of the Project, when such corrections are required as
a direct result of negligence by the Engineer to properly fulfill any of his
obligations as set forth in this Agreement.
3.22. Compensation payment.?Compensation payable shall be due
and payable ten (10) days after approval of the Owner of the services
performed.  The Engineer?s invoice shall include detail of the services
performed. The Owner must notify the Engineer within ten (10) days of
receipt of invoice of any discrepancies which require correction or of any
additions as a precedent for payment of such charges. If no discrepancies
are noted within ten (10) days of receipt of invoice, the invoice will beCh. 73] PROJECT CONSULTANCY AND SERVICE AGREEMENT?FORMS 989
considered to be approved. On invoices where Discrepancies are noted,
all charges not identified for correction will be considered approved and
shall be due ten (10) days from the date of the notification.
3.23.  Indemnification.
ENGINEER:   Engineer shall hold Owner and Owner?s employee?s agents,
officers, and directors, harmless from any and all claims for injuries to
persons or for damage to property happening by reason of any negligence,
default or misconduct, on the part of the Engineer, his agents, servants or
employees, during  the performance of this contract. This indemnity shall
include, but not be limited to, all expenses of litigation, court costs and
reasonable attorney?s fees.
OWNER: Owner shall hold Engineer and Engineer?s employee?s agents,
officers, and directors, harmless from any and all claims for injuries to
persons or for damage to property happening by reason of any negligence,
default or misconduct, on the part of the Owner, his agents, servants or
employees, during the performance of this contract. This indemnity shall
include, but not be limited to, all expenses of litigation, court costs and
reasonable attorney?s fees.
3.24. Limitation of Liability.?In no event will Engineer be liable for
consequential damages, including lost profits, loss of investment, or other
incidental damages incurred from Owner?s investment based on the Scope
of Work to be performed by Engineer under this Agreement. The Engineer?s
total liability for work performed shall never exceed the amount paid by the
Owner for services performed under this Agreement.
3.25. Force Majeure.?If the performance of the Agreement, or of any
obligation hereunder is prevented, restricted or interfered with by reason
of fires, breakdown of plant, labour disputes, embargoes, government
ordinances or requirements, civil or military authorities, acts of God or the
public enemy, acts or omissions of carriers, or other causes beyond the
reasonable control of the party whose performance is affected, then the
party affected, upon giving prompt notice to the other party, shall be
excused from such performance on a day-for-day basis to the extent of such
prevention, restriction, or interference (and the other party shall likewise be
excused from performance of its obligations on the day-for-day basis to the
extent such party?s obligations relate to the performance so prevented,
restricted or interfered with); provided that the party so affected shall use
its best efforts to avoid of remove such causes.
3.26. Disputes.?Owner and Engineer agree to submit to non-binding
arbitration as a first step toward resolution of any disputes arising under
this contract. In case, however, they fail to arrive at an acceptable resolution
of the difference or dispute relating to or arising from these presents, they
agree to refer the same to the arbitration of  two Arbitrators, one to be990 CONVEYANCING, DRAFTING & DEEDS [Ch. 73
nominated by each and also a third Arbitrator to be the presiding Arbitrator,
under the jurisdiction of the ???. High Court and such Arbitration shall
be in accordance with and subject to the provisions of the Arbitration and
Conciliation Act, 1996 or any statutory modification thereof for the time
being in force.
3.27. Solicitation to hire Employees.?Owner and Engineer acknowl-
edge and agree that each party has invested significant time and resources
in the recruitment and training of its employees.  Therefore, to the extent
permitted by applicable law, both parties agree that, during the term of this
Agreement and for one (1) year thereafter, that neither party will directly
or indirectly solicit or seek to employ the employees of the other party except
as by mutual agreement of the Owner and Engineer.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement
to be duly executed on the day and the year first above named.
SIGNED SEALED AND DELIVERED
BY THE PARTIES
In the presence of: Signature of Owner
WITNESSES:
1. Signature of Engineer
2.
9 9 9 9 9
Pre-Bid General Terms & Conditions?Project Pre-Bid General Terms & Conditions?Project Pre-Bid General Terms & Conditions?Project Pre-Bid General Terms & Conditions?Project Pre-Bid General Terms & Conditions?Project
Consultancy Agreement Consultancy Agreement Consultancy Agreement Consultancy Agreement Consultancy Agreement
1.  Definitions.
1.1. Scope. This documents defines the general terms (and provides
additional explanation to clarify and amplify those terms) that shall apply
to all consultancy agreements and retainer contracts involving Apcon
Consultancy Services.  These clauses are incorporated into and form an
integral part of our contract.
1.2. The parties. Apcon Consultancy Services Ltd. (hereinafter known
as ?Apcon?) and the Client:  ?the Client? is the party with whom a contract of
supply exists.
2. Statement of Professional Standards.
2.1 Apcon will conduct its business in accordance with the relevant
standards laid down by the Code of Professional Conduct  of the Institute
of Management India.
2.2 In particular, we will abide by Rules 1 & 2 of the Code regarding
?High standards of service to the client? and  ?independence, objectivity and
integrity. ?Ch. 73] PROJECT CONSULTANCY AND SERVICE AGREEMENT?FORMS 991
3.  Performacne.
3.1. All commitments with respect to the timing and scope of a project
given to the client by Apcon ? whether verbal or written ? are made in good
faith but are made necessarily in advance of knowing the full scope of the
difficulty that may pertain to performance on specific points (for example,
un-foreseeable difficulty in obtaining certain information requested by the
client). For this reason, whilst Apcon agrees to use its best endeavours to
fulfill such commitments to clients on the timing and the scope  of
consultancy and other projects we cannot guarantee performance in either
respect.
3.2. Where the contract specifies that our service will be provided by
a named individual, Apcon agrees to take all reasonable steps to ensure
that these persons will remain on these assignments for the full length of
the contract.
3.3. Apcon further agrees to obtain the client?s agreement to any
significant substitution of personnel that is necessitated by unforeseen
circumstances ? such as staff sickness.
4. Confidentiality.
4.1. Apcon agrees to hold all information provided by the Client
confidential where the client so specifies, save where such information is
known to Apcon already, or exists already in the public domain, until, either
the information enters the public domain, or Apcon is given the same
information by a third party, or is released from its confidentiality require-
ment by the client, or the client is found in breach of contract with Apcon
by a court of law (including non-payment of account) or three years have
elapsed whichever is the sooner.
4.2. The client agrees to hold confidential all information about Apcon?s
proposal(s), fee structures, fees and personnel.
5. Materials Supplied.
5.1. Apcon agrees to handle any materials, such as product samples
or documents, supplied by the client to Apcon in a responsible fashion and
return them to the client upon request. However, Apcon will not be
responsible for any wear or tear occasioned nor for any loss or theft that
might occur.  All such material is supplied at the client?s own risk and no
liability for any financial restitution for any direct or indirect value is accepted
nor any consequential loss.
6. Conflict of Interest.
6.1. Apcon will decline any third party contract that would create a
conflict of interest with the client?s previously agreed instructions. Where
such a conflict only becomes apparent after our agreement to act for the
third party we will invoke Clauses 6.2 and 6.3 in respect of their contract.
6.2. Apcon warrants to bring to the attention of the client any conflict of992 CONVEYANCING, DRAFTING & DEEDS [Ch. 73
interest that may arise between the client?s instructions and the terms under
which Apcon is acting, or has acted for another client at the time that it
becomes apparent to Apcon officers (where such third party instructions
were received prior to the client?s instructions). The client will then be free
to vary his contract with Apcon in the light of this revelation to the extent
that it is affected by the potential conflict of interest. Such a declaration by
Apcon will be general in nature, so as not to prejudice the confidentiality
with the third party.
6.3. Apcon will have the right to resign its contract in such circumstances
if, in its judgment, it is unable to proceed with the contract and maintain its
fiduciary duty. Apcon shall receive payment in full for hours worked and
expenses incurred to the date of disclosure, including all due contract stage
payments but not including any entitlement to pro-rata payment for any
amounts payable on completion such as performance fees or terminal
payments.
7. Rights of Ownership.
7.1. Apcon warrants that all personnel, whether full-time employees or
not, will be employed on terms that protect the Clients intellectual property
rights.
7.2. Notwithstanding any payments received from the client, all rights
of ownership to all materials prepared by Apcon, whether written  or not,
shall remain the property of Apcon copyright and distribution rights are
reserved by Apcon at its sole discretion, except where these rights are
explicitly stated in writing to have been waived or where the contract
between Apcon and the client explicitly so provides or where the material
is so endorsed by Apcon.
7.3. Apcon however grants the right, without prejudice to its position
under the previous paragraph, to the client to copy freely any material
provided by Apcon as part of work wholly commissioned by the client
provided that distribution of these copies is exclusively within the client?s
particular organisation.
7.4. This clause shall apply to all reports, including the final client report,
and all presentation materials.  It shall also apply to any audio or videotaping
of any presentations made by Apcon for the client. In addition, it applies
to all training materials used to support Apcon training sessions.
7.5. The right to distribute copies of Apcon material internally within the
Client?s organisation does not extend to multi-client and off-the-shelf market
research reports which have been bought from Apcon. Additional copies
of such reports for internal distribution are available, at the time of purchase
or later, at greatly reduced cost.
7.6. The client?s interests in respect of this clause and any materials
provided by the client to Apcon are protected by Apcon?s blanket confiden-Ch. 73] PROJECT CONSULTANCY AND SERVICE AGREEMENT?FORMS 993
tiality commitment in respect of the dissemination of any and all materials
related specifically to the client?s affairs outlined in Clause 4 above.
8. Time Basis for Contracts.
8.1. Where applicable, activity time is calculated inclusive of travel time
from the prior non-client activity (such as from the consultant?s home, office,
or third party premises).
8.2. The unit of activity is normally the Day, except where otherwise
agreed in advance.
8.3. Activity time includes all office time spent acting for the client.
8.4. Where the unit of activity is by the hour, all travel, office, adminis-
trative, preparatory, production and telephone time in addition to actual
client meetings and external interviews, are chargeable at the agreed
hourly rate for the individual concerned.
8.5. Activity logs will be provided to clients upon request.
9. Expenses.
9.1. Apcon contracts with clients stipulate whether they are  ?fixed price?
(i.e. all expenses will be included within the pre-negotiated fee and not
charged supplementary to the client) or  ?fee plus expenses?  ? in which case
expenses are levied in addition to our agreed fee. This section provides
clarification of our standard policy on what expenses will be claimed and
how.
9.2. We do not levy a fixed daily dislocation charge.
9.3. In the case of  ?net of expenses? contracts, Apcon is hereby
authorised to incur, without prior notice to the client, ?reasonable? travel
expenses (as outlined below in Clause 9.8) in performing the client?s
instructions.  The client agrees to re-imburse these in addition to the contract
fee.
9.4. All expenses are payable for the total activity time (as defined in
Clause 8 above) i.e. including travel to and from the client or travel to and
from third parties on behalf of the client.
9.5. Invoices for expenses will normally be presented monthly. Apcon
may, at its sole discretion, choose exceptionally to present invoices more
or less frequently, to reflect the level of expense incurred.
9.6. Expenses incurred in foreign currency will be billed at the actual
exchange rate obtained (gross rates, including commission, handling
charges, etc, will be used) except where this rate is not immediately
available, such as for some credit card charges, when either the last rate
obtained or an estimated rate will be used at Apcon?s discretion.
9.7. Expenses are re-imburseable immediately and the client accepts
that they are not subject to any credit terms or delayed payment clauses
that may relate to some or all of our professional fee.
G : CDD (Vol. 8) ? 63994 CONVEYANCING, DRAFTING & DEEDS [Ch. 73
9.8. ?Reasonable? travel expenses are those generally applied within
international corporations for their senior executives.  They vary to reflect
the different standards applied to business travel in various parts of the
world. For illustrative purposes, they include,  inter alia, Business Class
international air travel and Economy (or  ?coach?) class internal flights,
accommodation and incidental costs within an hotel suitable for interna-
tional business affairs, all meals whilst acting on behalf of the client within
an hotel?s restaurant or an equivalent grade of individual premises, 1st class
rail travel, taxis and car-hire costs for a mid-size or executive size vehicle
as appropriate, entertainment costs for third-party contacts made on behalf
of the client commensurate with obtaining the maximum value-for-money
from the contract for the client. Where appropriate to the circumstances,
we reserve the right to vary the class of travel to meet the business need.
The client so authorises.
9.9. Allowable expenses are charged to the client at the gross invoice
value. Expenses will be charged inclusive of any sales taxes (or similar fiscal
levies) where these are payable by us, whether or not we may be able to
subsequently reclaim any part of these.  VAT (and any other relevant tax)
will be added to the invoice amount in line with current government
legislation as the rate ruling at the time of invoice.
9.10.  Any additional charge for incidental expenses such as telephone,
fax, copies of client commissioned reports, and presentation materials
would normally be waived, except where such costs represent a significant
proportion of the project value; such basis to be agreed by the client in
advance.
9.11.  The client should note that travel fares are sometimes charged
on the basis of travel to and from Apcon premises, which may not be the
actual journey made, as our consultants may be travelling from a location
required for another client?s business.
9.12. Apcon employees are required to obtain receipts for expenses
wherever practical. These are retained by Apcon and are available for
inspection by the client upon his request.
10. Fees.
10.1.  The remuneration structure agreed between the client and Apcon
may be based on a number of methods.  These are a  ?retainer?, a  ?fixed fee?,
a  ?time based rate?  (e.g. day rate, also known as a per diem fee, or an hourly
rate), a ?success fee?, and a ?brokerage? or ?finder?s fee?.
10.2. The client agrees to pay Apcon according to the fee structure
outlined in Apcon?s project proposal, as amended by subsequent written
correspondence.
10.3.  ?Retainer fee?  shall be defined as a payment made to secure
Apcon?s services for a fixed period of time.  The retainer shall be automati-Ch. 73] PROJECT CONSULTANCY AND SERVICE AGREEMENT?FORMS 995
cally renewed except where either party gives the appropriate notice or is
in breach of the contract or where otherwise defined in the specific terms
of the contract.
10.4.  Fixed fee contracts cover the performance of an agreed service
as outlined in our Project Proposal for an agreed remuneration. Extra time
incurred by Apcon in the performance of the ?fixed fee? component of a
contract shall be borne by Apcon. The fee shall be fixed in the currency in
which the quotation is made, regardless of exchange rate movement.
10.5.  The ?daily rate?  and ?hourly rate?  shall be charged in accordance
with the criteria defined in Clause 8.
10.6.  Where Apcon introduces the client to a third party, which Apcon
identifies to the client as a potential ?partner? (as defined in 10.8), Apcon
shall receive a payment from the client by way of a  ?success fee?,  ?brokerage
fee? or ?finder?s fee?. The fee shall be triggered under the circumstances
defined in the particular contract with the client, or in the absence of such
agreement, by the  conclusion of a legally binding agreement with a third
party where this agreement results in significant part from the actions of
Apcon under the consultancy agreement and where the partner was
explicitly identified to the client by Apcon. It shall normally be expressed
as a percentage of the ?value? associated with the triggering event. ?Value?
shall be calculated as defined in Clause 11. The percentage rate will be
determined in advance by negotiation to reflect the degree of involvement
of Apcon in the identification process.
10.7. Finder?s fees, brokerage fees and success fees shall be subject
to a 0.5% or  £ 50,000 minimum, whichever is the greater, except where
otherwise agreed.
10.8. In the context of this clause,  ?partner? shall include, but not be limited
to, all of the following: companies and individuals with whom the client
concludes a collaboration agreement; business acquired, whether for cash
or equity; licensees and cross-licensees of intellectual property rights; joint-
venture partnerships; distribution agreements with wholesalers, distribu-
tors and sales or marketing agents.
10.9.  Where Apcon provides an introduction whilst acting on behalf of
the client that may lead to a right to a finder?s fee subsequent to the
completion of the assignment with the client, Apcon shall be entitled to the
said finder?s fee whenever the agreement between the parties is concluded.
11.  Valuation.
11.1.  This clause shall only apply to projects where Apcon is to receive
a ?success fee?  or a ?finder?s fee?.
11.2.  The valuation attributed to an agreement for the purposes of
calculating Apcon?s success fee shall depend on the type of partnership
that is concluded.996 CONVEYANCING, DRAFTING & DEEDS [Ch. 73
11. 3.  For acquisitions, the valuation shall be the total amount paid for
the partner?s share capital or its business plus repayments or intercompany
indebtedness, dividends (including tax credits) plus special emoluments or
other benefits paid at the time of the transaction plus any deferred
consideration or amount paid into escrow plus any other form of debt
structuring or financial arrangements used to affect the price, pro-rated
where appropriate to 100% of the capital of the target; otherwise known as
the ?headline value?.
11.4.  For joint-ventures, the value shall be the targeted Year 5 working
capital (sum of equity and loans) of the venture as contained in the set-up
documentation, or where this is not possible to determine, shall be
negotiated between the parties to reflect the agreed value of the introduc-
tion.
11.5.  For distribution agreements, the value of the finder?s fee shall be
based on the targeted Year 5 sales of the venture, or where this is not
possible to determine, shall be negotiated between the parties to reflect
the agreed value of the introduction.
11.6.  For licences and cross-licences and all other types of partnership
not more explicitly covered elsewhere in this Clause, the value shall be the
value agreed between the Client and the Partner for the purposes of their
relationship or, where no such value has been established, shall be
negotiated between Apcon and the Client so as to accurately reflect the
value of Apcon?s introduction to the Client.
11.7.  Where it is not possible to agree a value, both parties agree to
submit the matter to mutually binding arbitration, as defined in Clause 23.
12. Cancellation Rights.
12.1.  The contract shall be regarded as a whole unless there are break
points within it agreed in advance or it is divided into stages or where it is
subject to periodic renewal. Where no such division is agreed in advance
and stipulated in the contract, the client shall be liable for the totality of the
value of the contract ? including all expenses incurred to the date of
cancellation ? whether or not the client wishes the work to be completed.
12.2.  If a consultancy contract is expected to be for an extended period
or to have phases contingent upon the results of earlier work, it will normally
be divided into stages or subject to periodic renewal. Where such divisions
apply, either party may choose not to continue the contract into the next
phase without penalty (unless otherwise provided in the specific contract).
Where such cancellation is by Apcon the client shall be entitled to a refund
of that proportion of any advance of fees that relate to the remaining part
of the contract.
12.3. Annually renewed service contracts and retainers shall be re-
newed automatically for a further 12 months unless either party gives the
other the minimum notice of termination set out in the individual contract
or in the absence of such a provision 90 days notice.Ch. 73] PROJECT CONSULTANCY AND SERVICE AGREEMENT?FORMS 997
12.4.  Where the client cancels, the client shall pay for all stages of the
contract that have been commenced. Should he choose not to have work
completed on the stage underway prior to cancellation he remains liable
for payment in full of this stage.  The client also agrees to pay all expenses
incurred, whether or not these relate to the stages cancelled or to any prior
stages.
12.5. Where performance under the contract of Apcon?s service is
contingent upon the availability of a specific Apcon employee or Associate,
the client shall have the right to cancel the contract if the person or persons
essential to the timely completion of the project is unable to carry out the
agreed function within a period of sixty days of the agreed deadlines due
to ill health or other reason. In such circumstances the client shall not be
liable for any further payment of fees but Apcon shall be entitled to retain
payments already made in lieu of work carried out to date and to recover
all reasonable expenses incurred up to the date of cancellation.
12.6. Specific terms apply to cancellation in the event of a conflict of
interest (see Clause 6), client insolvency (see Clause 18), illegal activities
(Clause 19) or  force majeure (Clause 21).
12.7 In the event of cancellation, expenses incurred referred to in this
Clause shall be interpreted as including all monies spent on behalf of the
client plus all spending irrevocably committed to on the client?s behalf by
Apcon up to the date of cancellation plus any cancellation charges that may
be levied by third party suppliers as a result of the contract cancellation.
13. Payment Terms.
13.1.  The client agrees to be bound by the payment terms stipulated
in the contract.
13.2. If the client fails to make any final payment without giving
notification of due cause, then Apcon will without delivery of any final reports
and will not be responsible for any inconvenience, loss or damage so
caused.
13.3. In respect of any delays in interim payments attention is drawn to
Clause 14.2 below.
13.4.  The currency of payment will be stipulated in the client contract.
Both parties agree to accept this in respect of all invoices and payments.
13.5.  Unless otherwise explicitly provided by an individual contract, no
account will be taken of any exchange rate fluctuations during the life of
the contract. Each party accepts as their own responsibility the variation,
whether favourable or unfavourable, that they may see in local currency
terms in respect of the contract.
13.6.    The client?s responsibility is for payment to Apcon of the full amount
agreed. The client agrees to adjust all payments to take into account any
charges levied (such as may be made by the transferring bank), such that998 CONVEYANCING, DRAFTING & DEEDS [Ch. 73
the full amount is received by Apcon. The client accepts that Apcon shall
be entitled to recover all deducted amounts.
13.7.  The client agrees to make payment by the method stipulated in
the contract to the location stipulated in the contract. Apcon shall be entitled
to recover any costs caused by any client variations in this respect not
agreed in advance.
13.8.  The client agrees to pay all government taxes and duties,
regardless of origin, that may apply to all payments to Apcon. The client
further agrees that, should there be a change in type or value during the
life of the contract, whether favourable or unfavourable to the client, he will
be responsible for them in totality.  Each party will be responsible for
recovering his own entitlements in respect of pre-payments (for example
in respect of VAT or sales tax).
13.9. Apcon shall be entitled to charge interest at the rate of 2% per
month on all amounts that remain unpaid 30 days after the agreed payment
date.
13.10.  In the absence of any other agreed payment terms, all invoices
shall be payable in full within 30 days of the date of the invoice.
14. Stage Payments.
14.1.  Most contracts that extend across several months provide for stage
payments. These are negotiated in advance as part of the normal  discus-
sions prior to agreement of the contract.
14.2.  Apcon shall have the right to suspend all work on behalf of the
cleint should these payments not be made on time to the agreed schedule.
Any adverse impact that this suspension has upon the completion schedule
or the quality of the product for the client shall be at the client?s sole
responsibility. This right applies not just to the contract in arrears but also
any other contracts with the client, whether or not payments against these
contracts are in arrears.
14.3.  In particular clients should note that where it has been agreed that
payment of all or part of a contract is to be made  ?In advance? work will not
commence on the client?s behalf until payment is actually received.
15. Liability for Advice Given.
15.1. Apcon provides information, advice and services in good faith
based upon information available at the time.  We do not warrant the
accuracy of information provided. It is for the client to decide whether or
not to accept our advice in making his own management decision. We
advise that any data critical to a decision should be independently verified
prior to being acted upon. Therefore Apcon accepts no liability for the
consequences of its information opinions and advice whether direct or
indirect.Ch. 73] PROJECT CONSULTANCY AND SERVICE AGREEMENT?FORMS 999
16. Publicity.
16.1.  Apcon shall have the right, without further reference to the client,
to publicise the fact the client is, or was, a client and to utilise the client?s
name in publicity materials in this respect. Apcon may also describe in
general terms the type of work conducted for the client, but shall not be
permitted to link the two without the prior permission of the client.
16.2.  Wherever the results of any commissioned work are cited by the
client, the client agrees to make due reference to Apcon so as to make it
clear who carried out the work, except where Apcon explicitly waives the
right. This provision is notwithstanding the over-riding position over own-
ership of said product (outlined in Clause 7, Rights of Ownership, above).
17. Recruitment of Personnel.
17.1. Each Party undertakes not to attempt to solicit or procure the
services of staff employed by the other party who are involved in the
performance of this contract during the course of this contract and for a
period of six months thereafter without the written permission of the other
party.
17.2. The client agrees to pay Apcon a ?finders fee? should the client
recruit a Apcon consultant to a paid employment position within two years
of the conclusion of any work on behalf of the client by that Consultant or
of that Consultant being introduced to the client whichever is the later.
17.3.  In respect of the clause, the definition of  ?Consultant? shall include
all Apcon employees and Associates that are involved in the provision of
services to the Client under this or any other contract.
17.4.  The  ?finders fee?  shall be 30% of the first year?s gross remuneration
payable by the Client or its Associates to the Consultant.
18.  Insolvency.
18.1. Apcon shall have the right to discontinue immediately all work for
the client should he or another person petition for his bankruptcy, or he be
declared insolvent, or he be placed into administrative receivership or be
generally unable to pay his bills as they become due.
18.2. In these circumstances Apcon will also be entitled to have a general
lien on all goods and property of the client that is within Apcon?s possession
and, following 14 days notice to dispose of such goods and property in such
manner and at such prices as Apcon thinks fit and to apply the proceeds
towards such debts.
19. Illegal activities.
19.1.  Apcon will not carry out any illegal activities on behalf of the client.
Any requirement in this respect will nullify this contract in respect of
performance and Apcon will be entitled to recover in full its fee and
expenses.1000 CONVEYANCING, DRAFTING & DEEDS [Ch. 73
19.2.  The client agrees not to make any illegal use of any information
provided by Apcon.
19.3.  Neither party shall be liable to other for any indirect, special or
consequential damages.
20.  Limitation of liability.
20.1. Without prejudice to other more restrictive limitations elsewhere
in this contract, liability on the part of Apcon is limited to the value of the
contract with the client or the value of the loss whichever is the smaller.
Apcon accepts no liability for the consequences of its information, opinions
and advice, whether direct or indirect.
21. Force Majeure.
21.1.  Whilst Apcon agrees to use its best endeavours to perform the
contract for the client as specified, Apcon will not be responsible for any
delays or failure to complete the contract which are beyond Apcon?s control
and which could not have been reasonably predicted.
21.2.   Where the delay caused by third party events outside either party?s
control or influence causes such delay that the purpose of the contract is
wholly or significantly destroyed, either party shall be entitled in these
circumstances to cancel the remaining portion of the contract. In such
circumstances the client will not make any further payments of fees but
there will be no refund of payments already made (including any payments
for that part of the contract that remains unfulfilled) and Apcon will be
entitled to recover any costs already incurred.
22.  Jurisdiction.
22.1. Any disputes or claims shall be governed by and construed in
accordance with English law and the jurisdiction of the Indian courts.
23. Arbitration.
23.1. All unresolved disputes between the Parties shall be referred to
arbitration in London before a single arbitrator to be appointed, in default
of agreement otherwise, by the President for the time being of the Institute
of Management.
23.2.  Both parties also agree that all disputes arising with respect to
this contract will be arbitrated upon within the English legal system.
24. Waiver.
24.1.  The failure by either party to enforce at any time or for any period
any one or more of the terms and conditions of this agreement shall not
be a waiver of them or of the right at any time subsequently to enforce all
terms and conditions of this agreement.
25. Integral part of contract.
25.1.  The client, in signing the contract, accepts that all of these terms
have been read, understood and agreed.Ch. 73] PROJECT CONSULTANCY AND SERVICE AGREEMENT?FORMS 1001
25.2.  The client agrees that all of the above terms form part of the
contract between Apcon and the client, except where explicitly excluded
or modified by the contract and shall take precedence over and shall not
be varied by any other means including any terms or conditions that the
client may from time to time apply to suppliers.
ACCEPTED
SIGNATURE OF APCON SIGNATUER OF CLIENT
………………………………………. ………………………………………
Date : ………………… Date : …………………….