EXHIBIT 10.6
PROFESSIONAL SERVICES AGREEMENT
BETWEEN
BIOQUEST INTERNATIONAL, INC
AND
VERTICAL SOLUTIONS
<PAGE>
PROFESSIONAL SERVICES AGREEMENT
This Professional Services Agreement (this "Agreement") is made and entered into
effective as of August 11, 2000, (The "Effective Date") by and between Vertical
Solutions, a California corporation with its principal place of business at 6601
Center Drive West, Suite 500, Los Angeles, California 90045 ("Vertical") and
BioQuest International, ("Client"), (collectively referred to as the "Parties").
1. SERVICES
1.1 Services. Client hereby engages Vertical/Macrodigital and accepts such
engagement to provide the Web Development Services as described in the
BioQuest Proposal. Vertical agrees to provide the Services in a
professional and workmanlike manner and shall provide qualified and
trained personnel to render such Services. All Services shall be
performed at Vertical offices unless otherwise agreed by the parties.
In the event that Services are performed at Client's location, Client
shall provide Vertical at no charge with all necessary facilities and
equipment, including without limitation, computer time on Client's
computers and office space, sufficient to render the Services
contemplated hereunder.
2. SERVICE FEES/PAYMENT
2.1 Service Fees. In consideration for the performance of the Services,
Client shall pay to Vertical a total fee not to exceed $46,700.00 (the
"Service Fee"). The following payment schedule is: $15,566.66 to be
paid upon signing of this agreement or no later than August 15th, 2000,
$15,566.66 to be paid on September 8th, 2000 and final payment of
$15,566.66 October 1, 2000. The parties acknowledge and agree that a
change to the Services may cause an increase in the applicable Service
Fee. Service Fees do not include the cost of any third-party software,
materials, licenses, purchases or services. Client agrees that it shall
be jointly and severally liable to Vertical for any such third party
purchases or services, which Client has instructed Vertical to obtain
on its behalf.
( Please see Bank information for Wire Transfer Addendum A)
2.2 Expenses. In addition to the Service Fees, Client shall reimburse
Vertical for reasonable and actual business travel, living and related
expenses, provided that such expenses are actually incurred in
conjunction with rendering the Services. Client shall also reimburse
Vertical for other reasonable and actual business expenses incurred by
Vertical in providing the Services hereunder, including, but not
limited to, expenses for mailing, couriers, telephone, fax, and
third-party purchases and services. All expenses must have prior
approval from both BioQuest and Vertical.
( No T & E incurred without the approval of BioQuest)
2.3 Taxes. Client shall pay any and all applicable federal, state and local
sales, use, value added, excise, duty and any other taxes of any nature
assessed on the Services and the Deliverables, including taxes any
government agency assesses on tangible personal property acquired by
Vertical for use by Client, such as, film, photographs, illustrations
and printing. (This provision is intended to comply with Regulations of
the Board of Equalization, Department of Business Taxes, State of
California, or any similar provision of any other jurisdiction). Taxes
based upon Vertical's gross income shall be the sole responsibility of
Vertical.
3. CLIENT'S RESPONSIBILITIES
3.1 Direction. Client shall: (a) provide Vertical with reasonable input and
guidelines for Vertical to follow; (b) be reasonably available
throughout the process to provide feedback and answers to questions,
and (c) provide prompt review and turnaround of all preliminary
materials.
4. REPRESENTATIONS AND WARRANTIES
4.1 Definitions. For purposes of this Agreement "Client Content" shall mean
marketing collateral, data, text, audio files, video files, graphics,
software and other materials provided by Client for incorporation into
the Services; "Third Party Materials" shall mean artwork, photos,
sound, video or other materials owned by third parties, any software
available from third parties, which is incorporated into the Services
and which Vertical may or may not have customized for the benefit of
Client.
4.2 By Client. Client represents, warrants and covenants to Vertical that
(I) Client is an organization duly organized, validly existing and in
good standing under the laws of the jurisdiction in which it is
organized; (ii) the execution and delivery of this Agreement has
received all necessary corporate approval, and this Agreement
constitutes the valid and binding obligation of Client enforceable
against Client in accordance with its terms, except that such
enforceability may be limited by bankruptcy, insolvency,
reorganization, moratorium or other laws affecting creditors' rights
generally, and general principles of equity; (iii) Client owns all
right, title, and interest in, or has full and sufficient authority to
use in the manner contemplated by this Agreement, any materials or data
furnished by Client to Vertical (including Client Content); (iv) Client
shall comply with the terms and conditions of any licensing agreements
which govern the use of Third Party Materials; (v) Client shall comply
with all applicable foreign, international, federal, state and local
laws, statutes, codes, rules, administrative orders, regulations and
ordinances, as they relate to the Services and Deliverables provided to
Client hereunder; (vi) to the best of Client's knowledge the Client
Content does not infringe the copyright, trademark or other
intellectual property rights of any party, or constitute defamation,
invasion of privacy, or the violation of any right of publicity or any
other right of any party; (vii) Client has or will secure all necessary
consents, permissions, clearances, authorizations and waivers for the
use of Client Content or other Third Party Materials provided to
Vertical hereunder; and (viii) Client has complied and shall comply
with all legislation, rules and regulations regarding the use of Client
Content provided to Vertical hereunder.
4.3 By Vertical. Vertical represents, warrants and covenants to Client that
(i) Vertical is a corporation duly organized, validly existing and in
good standing under the laws of California; (ii) the execution and
delivery of this Agreement has received all necessary corporate
approval, and this Agreement constitutes the valid and binding
obligation of Vertical enforceable against Vertical in accordance with
its terms, except that such enforceability may be limited by
bankruptcy, insolvency, reorganization, moratorium or other laws
affecting creditors' rights generally, and general principles of
equity; (iii) Vertical shall perform the Services hereunder in a
professional and workman-like manner and in accordance with all
reasonable professional standards for similar services; (iv) except for
Third Party Material and any Client Content, the Services will be the
original work of Vertical or the work of its independent contractors.
If the Services include the work of independent contractors, Vertical
shall have agreements in place with such third parties which contain
provisions assigning all necessary rights, title and interest in, to
and under the Deliverables sufficient for Vertical to grant the
ownership interests and licenses that it purports to grant to Client
hereunder. To Vertical's knowledge, the Services do not infringe upon
or violate any U.S. patents issued as of the Effective Date, or any
U.S. copyright, trade secret or privacy right of any third party,
except to the extent that such infringement is caused by Client
Content, or the use or combination of the Services with materials,
equipment or machinery not provided by Vertical.
4.4 Limitations. EXCEPT FOR THE EXPRESS WARRANTIES STATED ABOVE, VERTICAL
MAKES NO WARRANTIES WHATSOEVER. VERTICAL EXPRESSLY DISCLAIMS ANY OTHER
WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT
LIMITED TO WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR
PURPOSE.
5 LIMITATIONS ON LIABILITY
THE MAXIMUM LIABILITY OF VERTICAL, ITS DIRECTORS, OFFICERS, PARENT
COMPANY, AND AFFILIATES TO THE CLIENT FOR DAMAGES FOR ANY AND ALL
CAUSES WHATSOEVER, AND CLIENT'S MAXIMUM REMEDY, REGARDLESS OF THE FORM
OF ACTION, WHETHER IN CONTRACT, TORT OR OTHERWISE, SHALL BE LIMITED TO
AN AMOUNT EQUAL TO THE TOTAL SERVICE FEES PAID BY CLIENT TO VERTICAL
HEREUNDER. IN NO EVENT SHALL VERTICAL, ITS DIRECTORS, OFFICERS, PARENT
COMPANY, AND AFFILIATES, LICENSORS, AND SUPPLIERS, BE LIABLE FOR ANY
LOST DATA OR CONTENT, LOST PROFITS, BUSINESS INTERRUPTION OR FOR ANY
INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE
DAMAGES ARISING OUT OF OR RELATING TO THE DELEVERABLES OR THE SERVICES
PROVIDED HEREUNDER, EVEN IF VERTICAL HAS BEEN ADVISED OF THE
POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF
ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
6. TERM AND TERMINATION
6.1 This contract is for a period of one (1) year or until all services
described above has been completed, whichever is longer, or until
terminated by either party pursuant to Sections 6.2 or 6.3 below. This
Agreement may be extended for additional one (1) year terms upon the
mutual agreement of the Parties no later than thirty (30) days prior to
the end of the then-current Term.
6.2 Termination for Cause. This Agreement may be terminated by either Party
in the event of (i) any material default in, or material breach of, any
of the terms and conditions of this Agreement by the other Party, which
default continues in effect after the defaulting Party has been
provided with written notice of default and thirty (30) days to cure
such default; (ii) the commencement of a voluntary case or other
proceeding seeking liquidation, reorganization or other relief with
respect to either Party of its debts under any bankruptcy, insolvency,
or other similar law now or hereafter in effect, that authorizes the
reorganization or liquidation of such Party or its debt or the
appointment of a trustee, receiver, liquidator, custodian or other
similar official of it or any substantial part of its property; (iii)
either Party's consent to any such relief or to the appointment of or
taking possession by any such official in an involuntary case or other
proceeding commenced against it; or (iv) either Party's making a
general assignment for the benefit of creditors; or either Party's
becoming insolvent; or either Party taking any corporate action to
authorize any of the foregoing.
6.3 Termination for Convenience. This Agreement may be terminated by either
Party upon thirty (30) days' advance written notice to the other Party.
6.4 Effect of Termination.
6.4.1 Payment of Fees. Upon the termination of this Agreement, Client shall
immediately pay Vertical all fees, costs and expenses owed to or
incurred by Vertical up to the effective date of such termination.
Client shall pay Vertical a pro rata amount of the fees due based on
the percentage of completion of the Services, as reasonably determined
by Vertical. The foregoing shall not limit Vertical's other rights and
remedies under this Agreement.
6.4.2 Return of Confidential Information. Immediately after termination of
this Agreement, each Party shall return to the other Party any and all
Confidential Information belonging to the other Party which was
delivered in connection with this Agreement, or shall certify that such
information has been destroyed. In addition, Client shall return to
Vertical materials which were delivered to Client but have not been
paid for by Client as the date of such termination.
6.5 Survival. Any terms of this Agreement, such as those contained in the
sections entitled "Warranties," "Indemnification," "Limitations of
Liability" and "General Provisions" which by their nature extend beyond
its expiration or termination will remain in effect until fulfilled and
will apply to respective successors and assignees of the parties. Any
third party agreements entered into by Vertical on behalf of Client
that are not cancelled or assigned upon termination of this Agreement
shall continue in effect in accordance with its terms, and Client shall
hold harmless and indemnify Vertical from all liabilities related
thereto, including, but not limited to, payment by Client for all
costs, expenses and fees incurred by Vertical on behalf of Client in
completing the terms and conditions of such third party agreements.
7. GENERAL PROVISIONS
7.1 Non-Solicitation. During the term of this Agreement and for a period of
one (1) year following the termination of this Agreement, neither Party
shall directly or indirectly encourage, induce, recruit, solicit or
take away, or attempt to solicit or take away, any employee of the
other Party.
7.2 Force Majeure. In the event that either Party is unable to perform any
of its obligations under this Agreement or to enjoy any of its benefits
because of any event beyond the control of the affected Party
including, but not limited to, natural disaster, acts of God, actions
or decrees of governmental bodies or failure of communication lines (a
"Force Majeure Event"), the Party who has been so affected shall
promptly give written notice to the other Party and shall use its best
efforts to resume performance. Upon receipt of such notice, all
obligations under this Agreement, except for Client's responsibility to
make payments for work completed and accepted by Client prior to the
occurrence of such Force Majeure Event, shall be immediately suspended
for the duration of such Force Majeure Event.
7.3 Notice. All notices, demands, requests or other communications required
or permitted under this Agreement or by law shall be in writing and
deemed duly served on and given (i) when delivered personally; (ii) ten
(10) days after having been sent by registered or certified mail,
return receipt requested, postage prepaid; (iii) upon delivery by fax
with written facsimile confirmation; or (iv) one (1) day after deposit
with a commercial overnight carrier, with written verification of
receipt. Such notices shall be in writing and delivered to the address
set forth below, or to such other notice address as the other Party has
provided by written notice.
To Client: BioQuest International.
To Vertical: Send notices to Ben Santiago, President to the address
referenced above.
With a copy to: Eric E. Castelblanco, Esq.
Law Offices of Karp & Castelblanco
9107 Wilshire Blvd., Suite 750
Beverly Hills, CA 90210
Fax: (310) 275-8849
7.4. Waiver/Severability. Waiver of any breach or failure to enforce any
term of this Agreement shall not be deemed a waiver of any breach or
right to enforce which may thereafter occur. No waiver shall be valid
against any party hereto unless made in writing and signed by the party
against whom enforcement of such waiver is sought and then only to the
extent expressly specified therein. In the event any one or more of the
provisions of this Agreement shall for any reason be held to be
invalid, illegal or unenforceable, the remaining provisions of this
Agreement shall be unimpaired and the parties will substitute a new
enforceable provision of like economic intent and effect
7.5. Interpretation/Venue. This Agreement, the rights and obligations of the
parties hereto, and any claims or disputes thereto, shall be governed
by and construed in accordance with the laws of the State of California
without reference to conflict of law principles. All disputes arising
out of or relating to this Agreement shall be submitted to the
non-exclusive jurisdiction of the state and federal courts in the
Central District of California, and each party irrevocably consents to
such personal jurisdiction and waives all objections thereto. Section
headings contained in this Agreement are inserted for convenience or
reference only, shall not be deemed to be a part of this Agreement for
any other purpose, and shall not in any way define or affect the
meaning, construction or scope of any of the provisions hereof.
7.6. Assignment. Neither party shall have the right to assign this Agreement
without the prior written consent of the other party; provided, that
either party shall have the right to assign this Agreement to any
person or entity that acquires or succeeds to all or substantially all
of such party's business or assets upon written notice to the other
party.
7.7. Publicity. Vertical shall have the nonexclusive right and license to
use Client's name, and trademarks as a Client reference, and as part of
Vertical's client portfolio, including a description of the Services
provided to Client by Vertical.
7.8. Independent Contractors. The relationship of the parties hereunder
shall be that of independent contractors. Nothing herein shall be
construed to constitute a partnership between or joint venture of the
parties, nor shall either party be deemed the agent of the other or
have the right to bind the other in any way without the prior written
consent of the other.
7.9. Attorneys' Fees. Should any action at law, in equity or by way of
arbitration be commenced to enforce or interpret the terms of this
Agreement, the prevailing party (as determined by such trier of fact)
shall be entitled (in addition to such other relief as may be granted
or such party is entitled to receive) to reasonable attorneys' fees,
costs and necessary disbursements, including any attorneys' fees and
costs incurred in enforcing any judgment. The obligation to reimburse
amounts incurred in enforcing any judgment shall survive such judgment
and shall not be deemed merged into any judgment.
7.10. Entire Agreement. This Agreement constitutes the complete and exclusive
understanding of the parties with reference to the subject matter
hereof, and supersedes all prior sales proposals, negotiations,
agreements and other representations or communications, whether oral or
written. If there is any conflict between the terms and conditions of
client's purchase order (or any other purchase or sales document) and
the terms and conditions of this Agreement, this Agreement shall
control. This Agreement may be modified, replaced or rescinded only in
writing, and signed by a duly authorized representative of each party.
This Agreement may be executed in several counterparts, each of which
shall be deemed to be an original, and all of which, when taken
together, shall constitute one and the same instrument.
IN WITNESS WHEREOF, the undersigned parties have duly executed this
Professional Services Agreement effective as of the date first above written.
"VERTICAL" "CLIENT"
Vertical Solutions BioQuest, International
By:/s/ Ben Santiago By: /s/Pete Ewens
--------------------------- -----------------------
Ben Santiago, President/COO Pete Ewens, CEO or
Kirk Cizerle, CTO
Addendum A
Wire Transfer Information
Company Name:
a Vertical Solutions company
1545 10th St.
Manhattan Beach, CA. 90266
Contact is : Ben Santiago, 310-649-4341
Bank Of America
Centinela-LaTijera Branch-2174
6611 La Cienega Westway
Los Angeles, CA 90056
ABA/122000661
Acct/ 21746-06779
Contact at Bank: Keenan, at 310-410-7077
