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Exhibit
10.23
Confidential
treatment has been requested for portions of this exhibit. The
copy filed herewith omits the information subject to the
confidentiality request. Omissions are designated as [***]. A
complete version of this exhibit has been filed separately
with the Securities and Exchange Commission.
PHILIPS
INFORMATION TECHNOLOGY CONSULTANCY AGREEMENT
This
Agreement is entered into on this 1st day of October, 2007
(the “Commencement Date”), by and between: Philips
Electronics North America Corporation, having its principal
address at 1251 Avenue of the Americas, New York, NY
10020-1104 (“PENAC”) and HSS Consultancy, LLC,
having its principal address at 405 North Reo Street, Suite
300, Tampa, Florida 33609 (“Consultant”). PENAC
and Consultant are hereinafter also referred to individually
as “Party” and collectively as
“Parties.”
WHEREAS:
A.
Philips
Medical Systems North America Company (“PMSNA”), a
division of PENAC, operates a Service Innovations Group
(“SIG”) at offices located at 489 Fifth Avenue,
New York, New York;
B.
[***];
C.
PMSNA
desires to transfer the projects, operations and
responsibilities currently carried out by SIG to Consultant
and desires to facilitate the hiring by Consultant of those
mutually agreed upon employees currently employed by PMSNA in
SIG (each, a “Hired Employee” and collectively,
the “Hired Employees”);
D.
Consultant
desires, subject to the terms and conditions stated herein, to
render the Services set forth herein and to engage the Hired
Employees;
E.
Philips
and Consultant wish to establish the terms of a business
relationship in which Consultant will perform on behalf of
Philips, among such other services as the Parties may agree,
the services formerly provided by SIG; and
F.
All
such services will be provided to Philips pursuant to the
Pricing Structure in Annex 1 and the Statement of Work (the
“SOW”) and Purchase Orders agreed to by the
Parties and attached hereto as Annex 2.
NOW
THEREFORE, THE PARTIES HERETO AGREE AS FOLLOWS:
Article
1 - Definitions
The
following terms shall have the meaning assigned to them
hereunder:
[***] Confidential Treatment
Requested
1.01
“Agreement”
shall mean this Philips Information Technology Consultancy
Agreement, including any and all schedules and annexes
attached hereto.
1.02
“Acceptance
Procedure” shall mean the test procedure specified in
Annex 3 hereto, which Annex 3 may be updated by PENAC from
time to time, used to determine whether Deliverables are in
conformance with agreed requirements and specifications as
agreed between the Parties in the Purchase
Orders.
1.03
“Affiliate”
shall mean any and all companies, firms and legal entities
with respect to which now or hereafter a Party directly or
indirectly holds fifty percent (50%) or more of the nominal
value of the issued share capital; or fifty percent (50%) or
more of the voting power at general meetings; or has the power
to appoint a majority of directors or otherwise to direct the
activities of such company, firm, or person.
1.04
“Consultant’s
Personnel” shall mean Consultant’s employees,
agents, representatives, and subcontractors performing
Services hereunder.
1.05
“Deliverables”
shall mean those milestones and deliverables produced in a
Project as set out in a Purchase Order or an Additional
Purchase Order.
1.06
“Participants”
shall mean any and all companies, firms and legal entities
with respect to which now or hereafter Koninklijke Philips
Electronics N.V. directly or indirectly holds fifty percent
(50%) or more of the nominal value of the issued share
capital; or fifty percent (50%) or more of the voting power at
general meetings; or has the power to appoint a majority of
directors or otherwise to direct the activities of such
company, firm, or person.
1.07
“Party”
or “Parties” shall mean Consultant on the one hand
and PENAC, Philips and their Participants on the other
hand.
1.08
“Project”
shall mean the agreed Services as specified in Annex 1, the
SOW, or a Purchase Order or Additional Purchase Order for a
specific project.
1.09
“Purchase
Order” shall mean a purchase order for Services issued
by Philips to Consultant and incorporating the terms and
conditions of this Agreement by reference which are attached
hereto as Annex 2.
1.10
“Philips”
shall mean PENAC or Participants, as the case may be, that
issues the applicable Purchase Orders.
1.11
“Services”
shall mean the professional services described in the Annex 1,
the SOW and Purchase Orders issued therewith and under
additional purchase orders (“Additional Purchase
Orders”) issued subsequent to the execution of this
Agreement to be rendered hereunder by Consultant, which
include but are not limited to software services and
information technology consultancy including project
management for information technology and information
technology related subjects.
Article
2 - Services
2.01
Upon
and subject to the terms and conditions of this Agreement,
Philips hereby appoints Consultant, as its contractor, to
perform the Services.
2.02
Consultant
hereby accepts, subject to the terms and conditions of this
Agreement, such appointment and agrees to perform the
Services.
2.03
Any
and all Purchase Orders and Additional Purchase Orders shall
be governed by the terms and conditions of this Agreement, the
SOW and the terms and conditions set forth therein. Unless
expressly agreed to in writing by Philips, any terms and
conditions that are set forth in any order confirmation or
other documents of Consultant are hereby objected to and
expressly rejected.
2.04
The
Services shall be specified per Project in Annex 1, the SOW,
and Purchase Orders or Additional Purchase Orders, which, in
the case of Additional Purchase Orders, in order to be valid
shall be confirmed in writing by Consultant within two (2)
weeks (or such other timeframe as may be reasonably
established by Purchase Order) after receipt of such Purchase
Order. The Purchase Order shall include, to the extent
applicable, the following:
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Reference
to this Agreement;
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A
specification of the objectives of the Project;
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A
specification of the Services to be performed;
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A
detailed description of Deliverables;
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Time
schedule for the Project;
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Reporting
parameters and frequency;
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The
manpower, resources and other services or facilities to be made
available to Philips and Participants;
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The
professional level and capacity of Consultant’s Personnel to
be assigned to the applicable Project or performing the
Services;
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Consideration,
payment terms, and expense reimbursement;
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Resumes
of all Consultant’s Personnel to be assigned to the
Project;
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Qualifications
and client references which may be called upon by
Philips;
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Any
other pertinent requirements; and
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Location
where Services are to be performed.
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2.05
Consultant
shall perform the Services, at its discretion, either at
Philips’ premises or at the Consultant’s offices
unless otherwise agreed to in writing.
Article
3 - Performance of Services
3.01
Consultant
shall deliver to Philips the Deliverables in accordance with
the specifications set forth in the applicable Purchase
Order.
3.02
Deliverables
will be accepted only after the Acceptance Procedure in Annex
3 has been successfully completed. Unless otherwise specified
in the Purchase Order or Additional Purchase Order, Philips or
Participant shall perform the Acceptance Procedure within
thirty (30) days following delivery of any Deliverable. In the
event the Acceptance Procedure has not been executed within
such thirty (30) day period (or such other period as specified
in the Purchase Order), the Deliverables shall be deemed
accepted at the earlier of: (i) when they are first used by
Philips; or (ii) the end of such thirty (30) day
period.
3.03
In
the event that Deliverables are not provided in accordance
with Articles 3.01 and 3.02 above, Philips will within
forty-five (45) days after the Consultant’s delivery of
the Deliverables, inform Consultant in writing of any material
failure to adequately provide the Deliverables and Consultant
will, at its own expense, carry out the necessary corrections,
additions, and modifications reasonably requested by Philips
in writing within thirty (30) days after such
notification.
3.04
Consultant
warrants that any software developed under any Purchase Order
shall function fully in accordance with the specifications
thereof for a period of one (1) year after acceptance thereof
in accordance with Article 3.02 above.
3.05
Consultant
shall promptly advise Philips of any event ("Delaying Event")
which may result in the Consultant being unable to
satisfactorily deliver the Deliverables as set out in the time
schedule specified in Annex 1, the SOW, and the Purchase
Order. If the Delaying Event is within Philips' control,
Philips shall promptly take all reasonable steps to remove or
overcome the Delaying Event. For a Delaying Event within
Philips’ control, the time in which the Consultant must
complete the Project will be extended for the period in which
such Delaying Event affects the Consultant. If the Delaying
Event is not within the control of Philips and is expected to
or does in fact, continue for an extended period of time as
reasonably determined by the Parties hereto, the Parties will
work together in good faith to resolve the issues arising from
the Delaying Event with respect to the Deliverables to be
provided under this Agreement.
3.06
Ownership of Deliverables shall pass to Philips upon delivery
of such Deliverable and acceptance thereof.
3.07
Consultant
represents and warrants that:
(i)
It
will commence work promptly and all Services shall be
performed in a timely and professional manner, in accordance
with the highest standards of the industry;
(ii)
It,
with the Hired Employees as described in Article 6, has the
required personnel, skills, and knowledge to render the
Services;
(iii)
It
has no outstanding agreement or obligation that are in
conflict with any of the provisions of any Purchase Order, or
that would preclude Consultant from complying with the
provisions thereof, during the term of any Purchase Order;
and
(iv)
All
Services performed for Philips shall be in accordance with all
applicable laws or regulations. No illegal, improper, or
unethical payment or other activities shall be made or
undertaken by Consultant in connection with Services to be
performed. Consultant shall receive no payment, credit, or
other financial benefit from any subcontractor or third party
rendering Services.
(v)
Without
prejudice to any other warranty contained herein, Consultant
warrants that the Services performed hereunder shall be
performed in accordance with all applicable laws and
regulations and the general information technology industry
standards of good workmanship and any specifications or
requirements expressly noted in the applicable Purchase
Order.
Article
4 -Term
4.01
The
term of this Agreement will commence on the Commencement Date
and will, unless sooner terminated in accordance with the
provisions hereof, end on December 31, 2009 (the “Base
Term”).
4.02
The
Base Term of this Agreement shall automatically be extended
for successive periods of one year each; provided, that the
Base Term of this Agreement shall not be extended under this
Article 4.02 if either Party shall have delivered, not later
than one hundred twenty (120) days prior to the then scheduled
expiration date, written notice to the other Party of its
election not to have the Base Term of Services to be provided
under this Agreement automatically extended pursuant to this
Article 4.02.
Article
5 - Consideration, Payment Terms, Expenses
5.01
All
consideration, fees, payment terms and expense reimbursement
relating to the services shall be set forth in the attached
Purchase Orders and the pricing structure set forth in Annex 1
hereto.
5.02
All
consideration, fees, payment terms and expense
reimbursement
relating
to Additional Purchase Orders shall be set forth in such Additional
Purchase Orders.
5.03
The
Services shall be performed by Consultant as an independent
contractor and not as an agent or employee of Philips, the
Parties hereto expressly agree that Consultant and its
employees are not, and will not be construed hereunder to be,
employees or agents of Philips. Consultant shall be
responsible for all withholding, unemployment, social
security, unemployment insurance taxes and any other
employment or payroll taxes or levies for its employees who
are engaged in the performance of the Services. Consultant
acknowledges that Philips shall have no obligation to
Consultant or its employees or subcontractors in this regard,
and Consultant shall indemnify and hold harmless Philips with
respect to any such liability. Philips shall be responsible
for all customs, duties, value-added, sales, and use taxes
that government agencies may assess, impose, or levy with
respect to the use of the Deliverables under this Agreement,
other than taxes based on Consultant’s net
income.
Article
6 - Hired Employees
6.01
Philips
hereby acknowledges that a material inducement for Consultant
to engage the Hired Employees which have been mutually agreed
to between the two parties is the execution of this Agreement
and the Annexes hereto including the issuance of the SOW and
the Purchase Orders.
6.02
Philips
agrees to provide consultant with the names of the Hired
Employees, together with their current salaries, years of
service, unused vacation days, current benefit plans, and
outstanding tuition reimbursement assistance
amounts.
6.03
Consultant
shall offer to employ as of the date of this Agreement all the
Hired Employees in the same or comparable positions, and at
the same or comparable base pay as was in effect immediately
prior to the date hereof. Hired Employees shall begin
employment with Consultant on the dates established by the
Parties and Hired Employees (the “Hire Date”).
During the Term of this Agreement, Consultant shall not reduce
the base salary of any Hired Employee, as established on the
day before the Hire Date during the twelve (12) month period
following the Hire Date. Notwithstanding the foregoing, in the
event a Hired Employee does not accept employment with the
Consultant the Consultant shall not have any liability to such
Hired Employee under this Article 6. In
addition to the foregoing, in the event a Hired Employee
terminates his/her employment with the Consultant during the
twelve (12) month period following the Hire Date, Philips will
reimburse Consultant for the amounts of severance that such
employee would have been entitled to had they terminated their
employment with Philips on the Hire Date.
6.04
On and after the applicable Hire Date, Consultant shall
recognize the service of each Hired Employee that was
recognized by Philips before the Hire Date for purposes of
determining vacation, for vesting and immediate participation
in the short term and long term disability benefits and for
access to Consultant’s group medical benefit
rates.
6.05
On
and after each Hire Date, the subject Hired Employee shall not
accrue benefits under or remain covered under any employee
benefit policies, plans, arrangements, programs, practices, or
agreements of Philips or any of its Affiliates, except as
required by law or under Philips or its Affiliates policies.
Philips or its Affiliates, as applicable, shall retain all
liabilities and obligations with respect to employees of
Philips or its Affiliates who are not Hired
Employees.
6.06
Nothing
in this Agreement shall cause duplicate benefits to be paid or
provided to or with respect to a Hired Employee under any
employee benefit policies, plans, arrangements, programs,
practices or agreements. References herein to a benefit with
respect to a Hired Employee shall include, where applicable,
benefits with respect to any eligible dependents and
beneficiaries of such Hired Employee under the same employee
benefit policy, plan, arrangement, program, practice or
agreement.
6.07
Hired
Employee Savings Plan and Welfare Benefit
Matters.
(i)
Savings Plans.
(1)
Hired
Employees shall not be entitled to make contributions to or to
benefit from matching or other contributions under the Philips
Savings Plans on and after the applicable Hire
Date.
(2)
Philips
or its Affiliates shall make all required matching
contributions with respect to the Hired Employees’
contributions to the Philips Savings Plans that are (i)
eligible for matching and (ii) made before the applicable Hire
Date. Such matching contributions shall be made not later than
the date on which all other matching contributions are made to
the Philips Savings Plans with respect to contributions made
at the same time as the Hired Employees’
contributions.
(3)
Nothing
herein requires Consultant to assume the Philips Savings Plan
or the duties and obligation of Philips
thereunder.
(ii)
Welfare Benefits.
(1)
Each Hired Employee shall be eligible as of his or her Hire
Date for participation in all Consultant benefit plans that
are welfare benefit plans, including medical, dental, vision,
prescription drug, life and supplemental life insurance,
short-term and long-term disability, accidental death and
disability, long-term care insurance and work and family
benefits (collectively the “Consultant Benefit
Plans”). Subject to Consultant’s existing
healthcare policy, reasonable policy costs and applicable law,
Consultant shall make available to each Hired Employee
healthcare coverage so that on his or her Hire Date, the Hired
Employee and his or her dependents, as defined by the
Consultant Benefit Plans, are eligible to be covered by such
Consultant healthcare plans, and all exclusionary provisions,
waiting periods, proof of insurability requirements and
pre-existing condition limitations in respect of conditions
and services covered by the Consultant healthcare plan shall
be waived with respect to each Hired Employee and covered
dependents. The foregoing waiver with respect to proof of
insurability shall not apply to supplemental group universal
life coverage.
All
out-of-pocket maximum expenditures and deductible expenses
incurred by each Hired Employee in the 2007 plan year under
Philips healthcare plans up to his or her Hire Date shall be
credited as out-of-pocket maximums and deductible expenses
under similar Consultant Benefit Plans as of his or her Hire
Date. This Agreement does not impose any requirement on
Consultant to provide post-retirement medical or other
post-retirement welfare plan coverage to any Hired Employee,
except to the extent required under the continuation of
coverage provisions of Section 4980B of the Code and
COBRA.
(2)
Philips, Consultant, their respective Affiliates, and the
Philips Welfare Plans and the Consultant Welfare Plans shall
assist and cooperate with each other in the disposition of
claims made under the Philips Welfare Plans or the Consultant
Welfare Plans, and in providing each other with any records,
documents, or other information within its control or to which
it has access that is reasonably requested by the other as
necessary or appropriate to the disposition, settlement, or
defense of such claims.
(3)
Beginning on the Hire Date with respect to each Hired Employee
and continuing for a period of at least one (1) year
thereafter, Consultant will provide severance benefits using
the Philips formula and years of service, so that each Hired
Employee will receive upon termination of employment with
Consultant the amount he/she would have received if they had
been terminated by Philips. Consultant shall recognize the
service of each Hired Employee with Philips and its Affiliates
for eligibility and benefit determinations under any
applicable Consultant severance or separation pay policy or
plan for the one (1) year period. In the event that Philips
terminates this Agreement, without cause, at any time prior to
the first anniversary of the date hereof, in addition to any
other remedies at law or in equity Consultant may have,
Philips will reimburse Consultant for the amounts paid or to
be paid by Consultant to Hired Employees, including all
severance payment obligations, pursuant to this section prior
to, and as a result of, such termination.
(4)
Philips hereby agrees to compensate each of the Hired
Employees for any accrued unused vacation time earned prior to
the Hire Date in accordance with the vacation policies of
Philips or its Affiliates.
6.08
On
or after the date hereof, Consultant shall pay the Hired
Employees in accordance with Philips Tuition Reimbursement
Plan as in existence at the time of the execution of this
Agreement with respect to any approved tuition reimbursement
assistance request for any course which was not completed by
the Hired Employee but approved prior to the date hereof in
accordance with Philips’s tuition reimbursement
plan.
6.09
Employee
Rights.
(i)
Nothing herein expressed or implied shall confer upon any
employee of Philips or its Affiliates, or Consultant, or upon
any legal representative of such employee, or upon any
collective bargaining agent, any rights or remedies, including
any right to employment or continued employment for any
specified period, of any nature or kind whatsoever under or by
reason of this Agreement.
(ii)
Nothing in this Agreement shall be deemed to confer upon any
person (nor any beneficiary thereof) any rights under or with
respect to any plan, program, or arrangement described in or
contemplated by this Agreement, and each person (and any
beneficiary thereof) shall be entitled to look only to the
express terms of any such plan, program, or arrangement for
his or her rights thereunder.
6.10
On
and after the Hire Date, Consultant shall be responsible with
respect to Hired Employees and their beneficiaries for
compliance with the Worker Adjustment and Retraining Act of
1988, as amended (the “WARN Act”) and any other
similar applicable law, regulation or rule, including any
requirement to provide for and discharge any and all
notifications, benefits, and liabilities to Hired Employees
and government agencies that might be imposed as a result of
the consummation of the transactions contemplated by this
Agreement or otherwise.
Article
7 - Confidentiality
7.01
Subject
to the provisions of Section 7.11 below, Consultant shall
receive and hold in complete confidence all information which
is obtained from Philips directly or indirectly pursuant to
any Purchase Orders or Additional Purchase Orders or request
for proposals including the contents and substance of same
(the "Confidential Information"). Consultant shall take such
steps as may be necessary to prevent disclosure of the
Confidential Information to others. The obligations of
confidentiality shall not apply to information which (a) is
within the public domain at the time of disclosure or later
becomes part of the public domain through no fault of
Consultant; (b) was known to Consultant prior to disclosure by
Philips as may be proven by written records of Consultant; or
(c) is disclosed to Consultant by a third party who did not
obtain such information, directly or indirectly, from
Philips.
7.02
Consultant
will not use any of the Confidential Information, except as
necessary for the proper execution of Purchase Orders or
Additional Purchase Orders, it being understood that the
Confidential Information may be communicated in confidence
within Consultant’s organization only on a
need-to-know-basis and to the extent necessary to perform the
Services under the Purchase Order or Additional Purchase
Orders and only to those persons having a need to know such
information for the proper execution of such Purchase Order or
Additional Purchase Orders.
7.03
Consultant
warrants that Consultant’s Personnel will be bound by
the same (confidentiality) obligations agreed upon in this
Article 7, and that Consultant’s Personnel shall execute
the Mutual Non-Disclosure Agreement set forth in the attached
Annex 4.
7.04
Consultant
further warrants that the Confidential Information shall be
kept in secure places, under strict access and use
restrictions.
7.05
Consultant
shall return all tangible Confidential Information that has
been received hereunder including all copies made thereof
promptly upon request by Philips except for any Confidential
Information required for execution of a Purchase
Order.
7.06
In
protecting Confidential Information, Consultant shall take all
necessary precautions and the Confidential Information will be
treated in the same manner and with the same degree of care as
Consultant applies with respect to its own confidential
information, but not less than reasonable care.
7.07
The
provisions of this Article 7 shall remain in full force and
effect during the term of the Purchase Order and for a period
of three (3) years after expiration or termination thereof
(“Confidentiality Period”).
7.08
Subject
to Article 7.10 below, Consultant shall not use Philips’
name or logo or any adaptation thereof, for any advertising,
trade press releases or other purpose without Philips’
prior written consent, which consent may be granted or
withheld at Philips sole discretion. Consultant shall not give
interviews to the media or publish any articles both in
connection with the Services performed hereunder or in
connection with activities of Philips, unless Consultant has
obtained the prior written approval for such interview and/or
publication from Philips.
7.09
Within
three (3) months after the expiration or termination of this
Agreement or a Purchase Order, Consultant shall return or
destroy all remaining tangible and intangible Confidential
Information in its possession.
7.10
Notwithstanding
the foregoing, the Parties acknowledge that Consultant is a
wholly-owned subsidiary of a reporting company under the
Securities and Exchange Act of 1934, as amended (the
“1934 Act”), and as such has certain reporting
obligations pursuant to the 1934 Act. Accordingly, nothing in
this Article 7 shall prevent or prohibit Consultant from
meeting its legally binding reporting requirements regarding
this Agreement or the Services provided thereunder, including
the filing of appropriate documents with the Securities and
Exchange Commission (“SEC filings”) and the making
of appropriate press releases or announcements related thereto
(“Press Releases”) that includes the name of
“Philips” therein, if legally required to do so;
provided however Phillips shall have the right to review and
comment on the SEC Filings and Press Releases.
7.11
Notwithstanding
the foregoing, each Party understands that the other Party may
develop systems, software, components and/or other items
(“Products”) similar or related in functionality
to the other Party’s Products, provided that the
requirements of this Article 7 are observed. Each Party agrees
that inclusion or embodiment of ideas, concepts and techniques
in Confidential Information furnished by the other Party
hereunder shall not preclude the first Party’s
independent development of Products or generic requirements
containing or embodying similar ideas, concepts and
techniques. Access to the disclosing Party’s
Confidential Information hereunder shall not preclude an
individual employee of the receiving Party who has seen such
Confidential Information for the purposes of this Agreement
from working on future projects that relate to similar subject
matters, provided that such individual employee does not make
reference to the Confidential Information and does not copy
the Confidential Information during the Confidentiality Period
or refer to notes made as a result of access to such
Confidential Information. Furthermore, nothing contained
herein shall be construed as preventing employees of either
Party who had access to Confidential Information from using
that information retained as a part of their general skill,
knowledge, talent and expertise.
Article
8 - Intellectual Property Rights
8.01
All
intellectual and/or industrial property rights contained in
Deliverables, except for rights that are owned by or licensed
to Consultant prior to the date of the relevant Purchase Order
(“Pre-existing Works”), shall be considered a work
made for hire and shall exclusively vest in Philips, and
Consultant hereby irrevocably and unconditionally assigns and
agrees to assign any and all such rights to Philips or to
cause such rights to be assigned to Philips.
8.02
Upon
Philips' request, Consultant agrees to render full assistance
and co-operation to Philips for the purpose of obtaining and
enjoying such rights.
8.03
To
the extent that any Pre-existing Works form part of any of the
Deliverables, Consultant shall provide written notice to
Philips of such Pre-existing Works and grant to Philips a
royalty-free, non-exclusive, non-transferable (with the
exception of transfer to Participants) license to use such
Deliverables (and any Pre-existing Works forming part of the
Deliverables) for Philips’ own business use and for the
purposes for which they were delivered but Philips will not
provide these Deliverables or copies of them to any third
party unless specifically agreed otherwise in
writing.
8.04
Consultant
shall not sell, deliver or otherwise make available, directly
or indirectly, any and all of the Deliverables to any third
party, except for any Pre-existing Works contained in or
forming part of any Deliverable.
8.05
Consultant
warrants that the Services, Deliverables and other information
performed or supplied pursuant to a Purchase Order or
Additional Purchase Orders will not infringe or violate any
patent, copyrights, trade secret, or any other industrial or
intellectual property right of any third party, and Consultant
shall indemnify and hold Philips harmless from and against any
loss, cost, liability or expense arising out of any
infringement of any of said rights, provided that Philips
gives Consultant prompt written notice of any such claim
(provided however, any failure or delay in providing such
notice shall not relieve Consultant of its indemnity
obligation except to the extent that defense of the claim or
cause of action is prejudiced) and allows Consultant to
control the defense and related settlement negotiations
thereof.
8.06
Philips
warrants that any intellectual property and other information
performed or supplied by Philips pursuant to a Purchase Order
will not infringe or violate any patent, copyrights, trade
secret, or any other industrial or intellectual property right
of any third party, and Philips shall indemnify and hold
Consultant harmless from and against any loss, cost, liability
or expense arising out of any infringement of any of said
rights, provided that Consultant gives Philips prompt written
notice of any such claim (provided however, any failure or
delay in providing such notice shall not relieve Philips of
its indemnity obligation except to the extent that defense of
the claim or cause of action is prejudiced) and allows Philips
to control the defense and related settlement negotiations
thereof.
8.07
In
addition to the rights granted in Article 7.11 above,
Consultant shall hereby in no way be precluded or limited from
providing consulting services and/or developing software or
materials for itself or other clients, irrespective of the
possible similarity thereof to materials which may be
delivered to Philips. It is explicitly understood that the
above specifically excludes any of Philips’ Confidential
Information used in, collected or otherwise obtained pursuant
to the execution of a Purchase Order or Additional Purchase
Orders, which Confidential Information shall at all times
remain proprietary to Philips.
8.08
Consultant
shall secure from Consultant’s Personnel the
intellectual property rights required for Consultant to comply
with its obligations hereunder.
Article
9 - Consultant’s Personnel
9.01
Consultant
shall ensure that Consultants’ Personnel shall adhere to
such undertakings as Philips may request including without
limitation the premises’ rules and procedures and the
confidentiality obligations contained in Article 7 hereof.
Consultant’s Personnel shall sign a document specifying
such undertakings at Philips’ first request prior to the
assignment of Consultant’s Personnel to a Project or a
Purchase Order hereunder.
9.02
Consultant
undertakes that Services shall be executed by reliable,
adequately trained, experienced, skilled and expert personnel
in adequate number and in sensible continuity in accordance
with the Purchase Order and confirmation thereof, and
Consultant shall exert its best efforts to ensure that
Consultant’s Personnel will implement same and will not
be taken away from performance of the applicable Services.
However, if it is unavoidable that Consultant’s
Personnel will be substituted, Consultant hereby confirms that
any replacement person it suggests will have at least
comparable training, experience, expertise, skill and
reliability. Such replacement person may be assigned to the
performance of the Services in accordance with the terms
hereof. Philips has the right to refuse on an individual basis
any of Consultant’s Personnel if Philips has reason to
believe that such person’s respective performance and/or
capabilities are not adequate and shall inform Consultant
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