EXHIBIT 10.1
ONENECK IT SERVICES
CORPORATION
PROFESSIONAL SERVICES
AGREEMENT
BY AND BETWEEN
ONENECK IT SERVICES
CORPORATION
AND
ADEPT TECHNOLOGY,
INC.
Dated: November 11,
2008
THE TERMS AND CONDITIONS OF THIS
AGREEMENT ARE CONFIDENTIAL
CONFIDENTIAL
PROFESSIONAL SERVICES
AGREEMENT
THIS PROFESSIONAL
SERVICES AGREEMENT (“ Agreement
”) is entered into this 11 th day of November, 2008 (“
Effective Date ”), by and between OneNeck IT
Services Corporation , whose principal place of business is
located at 5301 North Pima Road, Suite 100, Scottsdale, Arizona
85250 (“ OneNeck ”) and Adept Technology,
Inc., whose principal place of business is located at 3011
Triad Drive, Livermore, California 94551 (“ Client
”). OneNeck and Client may hereinafter be collectively
referred to as the “ Parties ”, each a “
Party ”.
RECITALS
WHEREAS, OneNeck is in the business of providing
professional IT consulting services to meet the needs of various
business enterprises;
WHEREAS, Client wishes to engage OneNeck to provide the
professional IT consulting services and expertise offered by
OneNeck throughout the term of this Agreement, and
WHEREAS, OneNeck is willing to provide such professional
IT consulting services subject to the terms and conditions as
defined in this Agreement;
NOW THEREFORE
, based upon the aforementioned
recitals and the promises contained herein, and for good and
valuable consideration, the sufficiency of which is hereby
acknowledged by each of the Parties, the Parties agree as
follows:
AGREEMENT
1. DEFINITIONS . As
used in this Agreement and other related professional services
documents (collectively, the “ Documents ”),
unless expressly indicated herein or therein, the following terms
shall have the following meanings with such definitions to be
applicable to both the singular and plural use of the
terms.
(a) “ Completion
Schedule ” shall mean that timetable set forth in each
Statement of Work to be attached hereto, if applicable, together
with any amendments thereto as shall have been approved in writing
by OneNeck and Client.
(b) “ Deliverable
” shall mean the resulting output of OneNeck’s work
effort as developed or prepared specifically for Client in
accordance with the provisions of this Agreement, and more
specifically defined in the Statements of Work (defined herein
below).
(c) “ IT ” shall
be an abbreviation for the industry-defined term Information
Technology.
(d) “ Project ”
shall mean the overall engagement of OneNeck by Client, under the
terms and conditions of this Agreement, to perform the
Services.
(e) “ OneNeck’s
Project Manager ” shall mean the designated employee of
OneNeck who shall be charged with fulfilling OneNeck’s
responsibilities as regards the Project described herein and to
coordinate performance of the Services (defined herein below) with
Client and to assist Client, as required, in all communications
with OneNeck.
(f) “ Client Project
Manager ” shall mean the Client designated employee of
Client who shall be charged with fulfilling Client’s
responsibilities as regards the Project described herein and to
coordinate performance hereof with OneNeck and to assist OneNeck as
required in gathering information, interviewing personnel,
procuring services, and conducting other related
activities.
(g) “ Statement of Work
” (“ SOW ”) shall mean the separate
agreement, to be attached as a Schedule upon joint agreement by
OneNeck and Client, setting forth the work and
Deliverables.
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2. SERVICES .
(a) Commencing with the Effective
Date hereof and continuing throughout the Term of this Agreement,
OneNeck agrees to provide certain professional IT consulting
services in support of the Client’s Project in accordance
with Client’s requirements as set forth in Statements of Work
(“ SOWs ”), to be attached hereto as Schedules
(“ Services ”). OneNeck shall complete and
deliver the Services and Deliverables in accordance with the
Completion Schedule, subject to the provisions of such Completion
Schedule and Sections 2(b), 6, and 7 herein. All
Services and communications, both written and verbal, shall be
communicated in the English language, unless otherwise agreed upon
in a signed writing by the Parties.
(b) Changes in Scope .
Changes in the scope of any aspect(s) of the Services, as defined
in a SOW, which are requested by the Client or caused by changing
conditions of law or schedule delays, not caused by OneNeck or its
personnel may require cost and/or date of performance revisions to
reflect such changes or delays. If, at any time prior to
performance of such work, OneNeck considers work requested by
Client exceeds the agreed upon scope of work, as described in the
SOWs, requiring a change in personnel or an increase in the work
effort required for completion, OneNeck shall notify Client, in
writing, of the nature of the work and the additional cost
associated with this work. OneNeck shall not undertake such work
until both Parties have agreed, in writing, upon any adjustment in
compensation and/or completion time. Such written agreement shall
be referred to as an “out-of-scope statement” and shall
be attached to this Agreement as a separate Schedule and become a
part hereof.
3. TERM/TERMINATION .
The term of this Agreement shall commence on the Effective Date
noted herein above and shall continue in full force and effect
until terminated in writing by Client (the “ Term
”) following: (i) Client’s acceptance of the final
deliverable for the latest SOW that has been executed by the
Parties; or (ii) the expiration of twenty (20) business
days from receipt of such written notice by OneNeck, provided
Client has paid or agrees to pay all undisputed amounts then
properly due and payable to OneNeck through the effective date of
such termination, and provided OneNeck is immediately released,
upon receipt of said written termination, from the duties and
obligations of the then-current SOW.
4. FEES AND EXPENSES .
In consideration for the Services and Deliverables described in
this Agreement, Client agrees to pay OneNeck, as set forth in any
individual SOW, for Services actually performed by OneNeck and
pre-approved expenses actually incurred, as supported by an hourly
labor log and all current administrative reports as specified
herein or reasonably requested by Client, subject to the
following:
(a) Service Fees . The
rates, as set forth in Schedule A “Schedule of Service
Fees”, for services rendered (the “ Service Fees
”, each a “ Service Fee ”) shall represent
the price to Client for OneNeck’s delivery of professional
services as contemplated herein.
(b) Increases to Hourly
Rates . The hourly rates, as set forth in Schedule A
hereto (the “ Hourly Rates ”), shall remain
unchanged during the first (3) years of the Term hereof. Said
Hourly Rates shall be subject to an annual increase beginning on
the third anniversary of the Effective Date of this Agreement and
then on each subsequent anniversary to the end of the Term of this
Agreement. OneNeck shall provide advance notice to Client of any
change in such fees.
(c) Invoices and
Payment . OneNeck shall deliver to Client an invoice by the
fifth (5th) business day of each calendar month for services
actually performed and pre-approved expenses actually incurred in
the prior month. Client’s payment of the undisputed invoiced
amount shall be due and payable forty-five (45) days from
receipt of the invoice by Client.
(d) Payment Obligation
. Client’s obligation to pay the undisputed invoiced charges
shall be absolute. Except as expressly provided herein, it is the
intention of OneNeck and Client that all Service Fees payable by
Client under this Agreement shall be, and continue to be, payable
in all events throughout the Term thereof. OneNeck shall pay all
taxes imposed in connection with the delivery of the
Services.
(e) Late
Payments . Client’s payment for Services shall be
deemed late when Client fails to remit payment within forty five
(45) days from receipt of the invoice by Client.
Notwithstanding the foregoing, Client shall be entitled to withhold
payment for Services in the event the Services are not provided in
accordance with the applicable SOW and this Agreement, only to the
extent such noncompliance with the SOW or this Agreement is
attributable to OneNeck. Any undisputed uncured late payment of
which OneNeck has provided Client written notification and a
reasonable time to cure shall bear interest at the rate of one and
one-half percent (1 1 / 2 %) per month or the maximum
rate allowed under law, which ever is greater, or fraction thereof
until paid in full.
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(f) Expenses . All of
OneNeck anticipated travel and other out-of-pocket expenses will be
in conformance with Client’s standard policies regarding
travel and expense reimbursement and shall be included in
OneNeck’s costs to Client. OneNeck will not incur any travel
expenses without prior written authorization from a Client Project
Manager and travel or other expenses incurred shall be subject to
the reasonable review and pre-approval of such Client Project
Manager.
5. RELATIONSHIP OF
PARTIES . The Parties understand that OneNeck is an
independent contractor with respect to Client, and not an employee
of Client. Client will not provide fringe benefits, including
health insurance benefits, paid vacation, or any other employee
benefit, for the benefit of OneNeck.
6. RESPONSIBILITIES OF THE
PARTIES .
(a) Client recognizes that
OneNeck’s performance of the Services and the completion
thereof are expressly conditioned upon Client’s reasonable
and timely performance and completion of the express obligations
set forth in a SOW which are required to be performed by
Client.
(b) OneNeck’s Project Manager
shall meet with Client’s Project Manager, as mutually agreed
upon, and shall jointly discuss the Project status. If, as the
result of such meeting, or for any other reason, Client has reason
to believe that OneNeck has deviated in any way from the Services
or any other provision(s) of this Agreement, Client shall promptly
inform OneNeck in a writing specifying the detail of any such
deviation(s).
(c) Client shall provide OneNeck, in
a reasonable and timely fashion, with the information set forth in
the SOW and other information which OneNeck believes it reasonably
requires for the performance of the Services by OneNeck hereunder
which OneNeck expressly requests.
(d) Client and OneNeck each shall,
within not less than five (5) business days of the execution
of this Agreement, designate a member of its staff, respectively,
to be the Project Manager. If for any reason a Party’s
designated Project Manager shall cease to perform the duties
described in the foregoing sentence, such Party shall immediately
designate another individual to perform such duties and shall
immediately inform the other party of the name of such
individual.
(e) Client shall provide OneNeck
with reasonable access to Client’s premises as mutually
agreed upon by the Parties for the performance of the Services
required under this Agreement.
(f) Client will make reasonable
efforts to cooperate with OneNeck in OneNeck’s performance of
the Services pursuant to and in accordance with the terms of this
Agreement.
(g) Client will make reasonable
efforts to provide adequate resources, as expressly requested by
OneNeck, to participate in or facilitate the performance of the
Services.
(h) Client and OneNeck shall each
timely participate in all scheduled meetings and have its personnel
readily available for such meetings.
(i) Client will make reasonable
efforts to assign personnel to work in consultation with
OneNeck’s personnel, upon OneNeck’s express
request.
(j) In the event of Client’s
failure to perform its responsibilities set forth hereunder, and
upon the expiration of a fifteen (15) business day period
following delivery of a written notice to Client from OneNeck
describing such failure and its impact on the project and providing
Client with an opportunity to cure said failure, as long as such
request is reasonable under the circumstances, OneNeck may suspend
performance of the Services then being performed upon prior written
notice to Client if such request remains uncured. However, OneNeck
will make best efforts to accommodate Client and work with Client
in obtaining the resources and information it needs to perform its
services prior to suspending any such services. OneNeck shall also
propose a change order to Client to increase the scope of OneNeck
Services to include the assumption or fulfillment of Client’s
responsibilities, which Client has failed to provide. OneNeck shall
not undertake such work until the Parties have agreed, in writing,
to any adjustment in compensation and/or completion time. In the
event any such
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suspension of performance occurs
caused by Client’s failure to provide services or information
required by OneNeck to perform the Services and so long as Client
has the necessary information and is able to provide the
information, Client shall be responsible for any and all service
fees due for the services performed under this Agreement so long as
OneNeck makes best efforts to mitigate expenses and seeks Clients
pre-approval for any such expenses.
(k) OneNeck shall perform all of its
obligations under this Agreement and in any SOW in a professional
and timely manner.
(l) OneNeck shall insure that it has
competent personnel to perform the Services under this Agreement
and is adequately staffed to meet its obligations
hereunder.
(m) OneNeck shall ensure that it and
its personnel incorporate and use industry standard security
procedures in safeguarding Client’s data and
systems.
(n) OneNeck represents and warrants
that its tools, methodologies, Services, deliverables and any
software used by OneNeck in relation to this Agreement do not
infringe or violate any third party’s rights or
interests.
(o) OneNeck represents and warrants
that it is not in violation of any law, rule, regulation or
obligation that would hinder or interfere with its obligation to
provide the services or deliverables hereunder.
7. RELIANCE ON DATA
SUPPLIED . OneNeck will perform the Services described in
this Agreement and any SOW using information and instructions
furnished by Client (“ Guidelines ”) and shall
only be entitled to rely upon any such information or instructions
if it is reasonable to do so. If any error results from incorrect
Guidelines supplied by Client, OneNeck shall not be responsible for
any problem caused by such error as long as it was reasonable for
OneNeck to rely on the data based on its experience and
expertise.
8. CLIENT APPROVAL AND
ACCEPTANCE . Deliverables and reports provided to Client by
OneNeck will be reviewed and approved by the representatives
appointed pursuant to Section 6 “Responsibilities
of the Parties” herein by Client. Client shall accept or
reject each Deliverable or report within ten (10) business
days of receipt thereof. Each such Deliverable and report shall be
deemed accepted unless rejected in writing within ten
(10) business days following delivery thereof. Provided the
Deliverables meet the terms of the Agreement and any requirements
set forth in the applicable SOW, acceptance shall not be
unreasonably withheld. Any rejection shall be in writing and
specifically state the matter in which the Deliverable or report is
defective. OneNeck shall be entitled to rely on the technical
reviews by Client, provided however, that should OneNeck have
knowledge, suspicion, or other reasonable reasons to question the
accuracy or completeness of information, services, surveys, or
reports transmitted or confirmed in writing by Client, then OneNeck
shall immediately notify Client before proceeding further. For
purposes of this Agreement, ten (10) business days shall
constitute a reasonable period for the Client to determine
acceptance of the Deliverables. Notwithstanding the foregoing,
Client shall not be precluded from its right to any remedies or
corrections hereunder to any Deliverables in the event Client is
not able to detect the defect after conducting reasonable testing
of such. OneNeck shall make the modifications necessary, within a
reasonable time, to correct such defects to provide the Services
and Deliverables in accordance with this Agreement and any SOW. In
addition to all other rights and remedies available to Client, if
acceptance by Client shall not occur within 30 days after notice to
OneNeck by Client of non-conforming services or deliverables (after
giving effect to each day of delay, or portion thereof, wrongfully
caused by Client), Client shall have the right to rescind this
Agreement without liability whatsoever, and OneNeck shall
immediately, after written notification thereof, refund to Client
all amounts paid by Client to OneNeck with respect to the SOW at
issue.
9. ASSIGNMENT .
Neither of the Parties may assign this Agreement or any rights,
obligations, or be
