Вы находитесь на странице: 1из 10

SUBCONTRACTOR AGREEMENT

This Subcontractor Agreement is made and entered into, as of 6 th July 2015 (the Effective
Date), by and between Advent Global Solutions, Inc., a New Jersey corporation with its
principal place of business at 12777 Jones Road, Suite 445, Houston, TX, 77070 (the
Company) and Consiga Technologies INC. located at 24 Wernik Place, Suite#D, Metuchen, NJ
08840 (the Subcontractor).
1.
Background. Company seeks to obtain Subcontractor personnel (hereinafter including
Subcontractors employees or independent contractors) to perform Services for Companys
clients. Subcontractor agrees to supply its personnel in accordance with the terms and conditions
set forth herein.
2.
Engagement and Scope of Services. Subject to the terms of this Agreement,
Subcontractor agrees to have its personnel perform such Services as described in any Statement
of Work agreed upon in writing by an authorized representative of each party, such as the one
attached as Exhibit A.
3.
Payment Obligations. The Company will pay Subcontractors fees as described in Exhibit
A. In consideration for the Services provided by Subcontractor, Company agrees to make
payments to Subcontractor, as follows. Following the performance of Services, Subcontractor
will send an invoice detailing the Services performed and all other information as may be
reasonably requested by Company every month. The invoice for the Services will be in
accordance with each Statement of Work (also referred within the industry as an assignment).
30 days following receipt of invoice by the Company along with client approved timesheets,
Company shall make payment to Subcontractor. In the event that such Companys client
disputes some or all of the invoiced amount, Company shall not be responsible for payment of
those disputed amount to Subcontractor. For avoidance of doubt, Company shall not be
responsible for any payment obligation that would otherwise be owed to Subcontractor in the
event that (i) Subcontractor (including any of its personnel) is dismissed from an assignment
within the first two weeks from commencing Services for a particular Companys client or (ii)
Subcontractor personnel ceases providing Services during an assignment, without prior written
permission from Company.
4.
Independent Contractor Relationship Companys relationship with Subcontractor
(including its personnel) is that of an independent contractor, and nothing in this Agreement is
intended to, or shall be construed to, create a partnership, agency, joint venture, employment or
similar relationship. Subcontractor (including its personnel) will not be entitled to any of the
benefits that Company may make available to its employees, including, but not limited to, group
health or life insurance, profit-sharing or retirement benefits. Subcontractor (including its
personnel) is not authorized to make any representation, contract or commitment on behalf of
Company unless specifically requested or authorized in writing to do so by a Company executive
officer. Subcontractor (including its personnel) is solely responsible for, and will file, on a timely
basis, all tax returns and payments required to be filed with, or made to, any federal, state or
Page 1 of 10

local tax authority with respect to the performance of services and receipt of fees under this
Agreement. Subcontractor agrees to indemnify and hold harmless Company from any tax
liabilities Company may incur based upon Subcontractors (including its personnel) noncompliance with this Section 4. No part of Subcontractors compensation will be subject to
withholding by Company for the payment of any social security, federal, state or any other
employee payroll taxes. Company will regularly report amounts paid to Subcontractor by filing
Form 1099 with the Internal Revenue Service as required by law.
5.

Disclosure and Assignment of Work Resulting from Project Assignments.

5.1.
Innovations and Company Innovations Definitions. Innovations means all
discoveries, designs, developments, improvements, inventions (whether or not protectable under
patent laws), works of authorship, information fixed in any tangible medium of expression
(whether or not protectable under copyright laws), trade secrets, know-how, ideas (whether or
not protectable under trade secret laws), mask works, trademarks, service marks, trade names
and trade dress. Company Innovations means Innovations that Subcontractor (including its
personnel), solely or jointly with others, conceives, develops or reduces to practice related to any
Project Assignment.
5.2.
Disclosure and Assignment of Company Innovations. Subcontractor (by or through its
personnel) agrees to maintain adequate and current records of all Company Innovations, which
records shall be and remain the property of Company. Subcontractor (by and through its
personnel) agrees to promptly disclose and describe to Company all Company Innovations.
Subcontractor hereby does and will assign to Company or Companys designee all of
Subcontractors right, title and interest in and to any and all Company Innovations and all
associated records. To the extent any of the rights, title and interest in and to Company
Innovations cannot be assigned by Subcontractor to Company, Subcontractor hereby grants to
Company an exclusive, royalty-free, transferable, irrevocable, worldwide license (with rights to
sublicense through multiple tiers of sublicensees) to practice such non-assignable rights, title and
interest. To the extent any of the rights, title and interest in and to the Company Innovations can
neither be assigned nor licensed by Subcontractor to Company, Subcontractor hereby irrevocably
waives and agrees never to assert such non-assignable and non-licensable rights, title and interest
against Company or any of Companys successors in interest, licensees or assignees.
Subcontractor shall enter into a contract with its personnel who may render Services under this
Agreement that requires its personnel to the same obligations of Subcontractor contained in this
Section 5.2.
5.3.
Assistance. Subcontractor agrees (and shall require its personnel to agree) to perform,
during and after the term of this Agreement, all acts that Company or its designee (such as the
applicable Companys client) deems necessary or desirable to permit and assist Company or its
designee (such as the applicable Companys client) at Subcontractors expense, in obtaining,
perfecting and enforcing the full benefits, enjoyment, rights and title throughout the world in the
Company Innovations as provided to Company under this Agreement. If Company or Companys
designee is unable for any reason to secure Subcontractors signature to any document required
to file, prosecute, register or memorialize the assignment of any rights under any Company
Page 2 of 10

Innovations as provided under this Agreement, Subcontractor hereby irrevocably designates and
appoints Company or Companys designee (including the applicable duly authorized officers and
agents) as Subcontractors agents and attorneys-in-fact to act for and on Subcontractors behalf
and instead of Subcontractor to take all lawfully permitted acts to further the filing, prosecution,
registration, memorialization of assignment, issuance and enforcement of rights under such
Company Innovations, all with the same legal force and effect as if executed by Subcontractor.
The foregoing is deemed a power coupled with an interest and is irrevocable. Subcontractor
shall enter into a contract with its personnel who may render Services under this Agreement that
requires its personnel to the same obligations of Subcontractor contained in this Section 5.3.
5.4.
Out-of-Scope Innovations. If Subcontractor (including it personnel) incorporates or
permits to be incorporated any Innovations relating in any way, at the time of conception,
reduction to practice, creation, derivation, development or making of such Innovation, to a
Statement of Work or Companys business or actual or demonstrably anticipated research or
development but which were conceived, reduced to practice, created, derived, developed or made
by Subcontractor or its personnel (solely or jointly) either unrelated to Subcontractors work for
Company under this Agreement or prior to the Effective Date (collectively, the Out-of-Scope
Innovations) into any of the Company Innovations, then Subcontractor hereby grants to
Company and Companys designees (such as the applicable Companys client), licensees, or
assignees a non-exclusive, royalty-free, irrevocable, worldwide, fully paid-up license (with rights
to sublicense through multiple tiers of sublicensees) to practice all patent, copyright, moral right,
mask work, trade secret and other intellectual property rights relating to such Out-of-Scope
Innovations. Notwithstanding the foregoing, Subcontractor agrees that Subcontractor (including
its personnel) will not incorporate, or permit to be incorporated, any Innovations conceived,
reduced to practice, created, derived, developed or made by others or any Out-of-Scope
Innovations into any Company Innovations without Companys prior written consent.
Subcontractor shall enter into a contract with its personnel who may render Services under this
Agreement that requires its personnel to the same obligations of Subcontractor contained in this
Section 5.4.
6.

Confidentiality.

6.1.
Definition. Confidential Information means (a) any technical and non-technical
information related to the Company or the applicable Companys clients business and current,
future and proposed products and services of Company or the applicable Companys client,
including for example and without limitation, Company Innovations, Company Property (as
defined in Section 7 (Ownership and Return of Confidential Information and Company
Property)), and Companys information concerning research, development, design details and
specifications, financial information, procurement requirements, engineering and manufacturing
information, customer lists, business forecasts, sales information and marketing plans and (b)
any information that may be made known to Subcontractor and that Company or the applicable
Companys client has received from others that Company or applicable Companys client is
obligated to treat as confidential or proprietary.

Page 3 of 10

6.2.
Nondisclosure and Nonuse Obligations.
Except as permitted in this Section,
Subcontractor shall not use, disseminate or in any way disclose the Confidential Information.
Subcontractor may use the Confidential Information solely to perform Project Assignment(s).
Subcontractor shall treat all Confidential Information with the same degree of care as
Subcontractor accords to Subcontractors own confidential information, but in no case shall
Subcontractor use less than reasonable care. If Subcontractor is not an individual, Subcontractor
shall disclose Confidential Information only to those of Subcontractors employees who have a
need to know such information. Subcontractor certifies that each such employee will have
agreed, either as a condition of employment or in order to obtain the Confidential Information, to
be bound by terms and conditions at least as protective as those terms and conditions applicable
to Subcontractor under this Agreement. Subcontractor (including its personnel) shall
immediately give notice to Company of any unauthorized use or disclosure of the Confidential
Information. Subcontractor shall assist Company in remedying any such unauthorized use or
disclosure of the Confidential Information. Subcontractor agrees not to communicate any
information to Company or its clients in violation of the proprietary rights of any third party.
6.3.
Exclusions from Nondisclosure and Nonuse Obligations. Subcontractors obligations
under Section 6.2 (Nondisclosure and Nonuse Obligations) shall not apply to any Confidential
Information that Subcontractor can demonstrate (a) was in the public domain at or subsequent to
the time such Confidential Information was communicated to Subcontractor by Company or the
applicable Companys client through no fault of Subcontractor; (b) was rightfully in
Subcontractors possession free of any obligation of confidence at or subsequent to the time such
Confidential Information was communicated to Subcontractor by Company; or (c) was
developed by employees of Subcontractor independently of and without reference to any
Confidential Information communicated to Subcontractor by Company. A disclosure of any
Confidential Information by Subcontractor (a) in response to a valid order by a court or other
governmental body or (b) as otherwise required by law shall not be considered to be a breach of
this Agreement or a waiver of confidentiality for other purposes; provided, however, that
Subcontractor (by or through its personnel) shall provide prompt prior written notice thereof to
Company to enable Company or the applicable Companys client to seek a protective order or
otherwise prevent such disclosure.
7.
Ownership and Return of Confidential Information and Company Property. All
Confidential Information and any materials furnished to Subcontractor by Company or the
applicable Companys client, whether delivered to Subcontractor by Company or the applicable
Companys client or made by Subcontractor (including its personnel) in the performance of
services under this Agreement and whether or not they contain or disclose Confidential
Information (collectively, the Company Property), are the sole and exclusive property of
Company or Companys suppliers or customers (such as the applicable Companys client).
Subcontractor agrees to keep all Company Property at Subcontractors premises unless otherwise
permitted in writing by Company. Within five (5) days after any request by Company,
Subcontractor shall destroy or deliver to Company, at Companys option, (a) all Company
Property and (b) all materials in Subcontractors possession or control that contain or disclose
any Confidential Information. Subcontractor will provide Company a written certification of
Subcontractors compliance with Subcontractors obligations under this Section.
Page 4 of 10

8.
Observance of Company and Companys Client Rules. At all times while on Companys
or Companys clients premises, Subcontractor will observe Companys or the applicable
Companys clients rules and regulations with respect to conduct, health, safety and protection of
persons and property.
9.
No Conflict of Interest. During the term of this Agreement, Subcontractor and its
personnel will not accept work, enter into a contract or accept an obligation inconsistent or
incompatible with Subcontractors obligations, or the scope of services to be rendered for
Company (including the applicable Companys client), under this Agreement. Subcontractor
warrants (and shall cause its personnel to warrant under a separate agreement) that, to the best of
Subcontractors knowledge, there is no other existing contract or duty on Subcontractors part
that conflicts with or is inconsistent with this Agreement. Subcontractor agrees to indemnify
Company from any and all loss or liability incurred by reason of the alleged breach by
Subcontractor (including any of its personnel) of any services agreement with any third party.
10.
Subcontractor Personnel Obligations. With regard to all terms and conditions set forth in
this Agreement, Subcontractor agrees to require all its personnel who may provide direct or
indirect Services to Company or a Companys client by or through this Agreement to execute a
separate agreement with the Subcontractor requiring the Subcontractor to comply with all of the
terms and provisions of this Agreement as if each were the Subcontractor under this Agreement.
11.
General Duties of Subcontractor. In addition to other obligations specified herein,
Subcontractor agrees to: (i) maintain all necessary personnel and payroll records for its
personnel; (ii) calculate its personnel wages and withhold taxes and other government mandated
charges, if any; (iii) remit such taxes and charges to the appropriate government entity; (iv)
provide for liability and fidelity insurance as may be specified in this Agreement, (v) provide
workers compensation insurance coverage in amounts as required by law, (vi) keep such records
and take such action as necessary to comply with all state, federal or other laws, rules, or
regulations pertaining to immigration or naturalization, and (vii) comply with all applicable laws,
statutes, rules, or regulations. Further, Company reserves right to hire Subcontractor personnel if
Subcontractor fails to pay its personnel on timely manner. Subcontractor (on behalf of its
personnel) agrees that Company or the applicable Companys client shall have all rights
necessary to interview those selected Subcontractor personnel and accept or reject them at their
discretion.
12.
Representations and Warranties. Subcontractor represents and warrants that personnel
who are selected to provide Services hereunder shall have successfully passed a criminal
background check, employment background check, and drug testing, However a Separate
Background and Criminal Check would be conducted by a Company at the cost to the
Subcontractor.
Subcontractor represents and warrants that it has diligently recruited,
interviewed, and selected personnel who are capable of performing the Services describe by
Company or its client. Subcontractor further represents and warrants that deliverables or
materials produced under this Agreement for the benefit of the applicable Companys client will
not contain any code, programming instruction, or set of instructions that is intentionally
constructed with the ability to damage, interfere with, or otherwise adversely affect computer
Page 5 of 10

programming code, data files, or hardware without the prior written consent and intent of the
computer user. Subcontractor warrants and unconditionally agrees deliver its personal to
companys client project once the exhibit has been signed by both the parties. Failing to deliver
the personal (details as mentioned in Exhibit A), subcontractor agrees to pay company $5000
(Five thousand dollars) as a compensation towards loss of business. Subcontractor represents
and warrant that it has established procedures to prevent any such code, programming
instruction, or set of instructions from being incorporated by any of Subcontractors personnel
into deliverables or materials and shall promptly notify Company and the applicable Companys
client of any knowledge or suspicion of Subcontractor that such code, programming instruction,
or set of instructions have been incorporated into deliverables or materials.
13.
Limitation of Liability. COMPANY WILL NOT BE LIABLE TO SUBCONTRACTOR
(INCLUDING ITS PERSONNEL) FOR INDIRECT, INCIDENTAL, CONSEQUENTIAL,
EXEMPLARY, PUNITIVE OR SPECIAL DAMAGES, INCLUDING LOST PROFITS,
REGARDLESS OF THE FORM OF THE ACTION OR THE THEORY OF RECOVERY,
EVEN IF COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF THOSE DAMAGES.
14.
Indemnification. Subcontractor will indemnify, defend, and hold harmless Company and
all of its direct and indirect officers, directors, employees, agents, successors and assigns (each,
an Indemnified Person) from any and all losses, liabilities, damages (including taxes), and all
related costs and expenses, including reasonable legal fees and disbursements and costs of
investigation, litigation, settlement, judgment, interest and penalties (collectively, Losses), and
threatened Losses due to, arising from or relating to third party claims, demands, actions or threat
of action (whether in law, equity or in an alternative proceeding) arising from or relating to:
(a) Subcontractors (including its personnels) actual or alleged breach of any warranties in this
Agreement; (b) any actual or alleged infringement, violation or misappropriation of the
Intellectual Property Rights of any third person by (i) any Services provided by Subcontractor
(by or through its personnel) or (ii) a third partys use of those Services; (c) Subcontractors
actual or alleged breach of any of the confidentiality or intellectual property (including
assignment and licenses) provisions in this Agreement; or (d) negligent, willful or reckless acts
or omissions of or by Subcontractor or any Subcontractor personnel (each, an Indemnified
Claim). No settlement or compromise that imposes any liability or obligation on any
Indemnified Person will be made without the Indemnified Persons prior written consent (not to
be unreasonably withheld). If Subcontractor fails to defend an Indemnified Person as provided
in this Section 14 after reasonable notice of an Indemnified Claim, Subcontractor will be bound:
(i) to indemnify and reimburse the Indemnified Person for any Losses incurred by any
Indemnified Person, in its sole discretion, to defend, settle or compromise the Indemnified
Claim; and (ii) by the determination of facts common to an action and subsequent action to
enforce the Indemnified Persons reimbursement rights
15.
Forfeiture of Fees for Services. In the event that any of the following occur, Company
shall not be responsible for payment to Subcontractor for Services rendered: (i) if Subcontractor
personnel who leave their assignment within the first 15 days or (ii) if Subcontractor personnel
are dismissed by Companys client for unsatisfactory Services.
Page 6 of 10

16.
Liquidated Damages. In the event that Subcontractor, including its personnel, are found
to have violated Sections 5, 6, 7, 8, 9, 10, 11, 12, 17, or 19, then Company, at Companys sole
option, shall require Subcontractor to pay to Company within 30 days of such notice an amount
equal to $50,000 or an amount equal to the amount Company paid Subcontractor during the prior
12 month period, whichever is greater. In the event that Subcontractor does not comply with this
provision, then Company may obtain, in addition to all other damages, all amounts, fees, and
expenses (including attorneys fees) incurred by Company in enforcing this provision.
17.
Removal of Personnel. At Companys or the applicable Companys clients request from
time to time, Subcontractor agrees to supply its personnel to perform Services at a designated
site. Subcontractor represents and warrant that its personnel shall have the skills, experience,
qualifications and capabilities as represented to Company and/or the applicable Companys
client. Nothing in this Agreement requires Company or its contractors to utilize Subcontractor
(including its personnel) at any specific amount or level during the term of this Agreement. For
avoidance of doubt, Company is not obligated to make any minimum number of request for
Services during the term of this Agreement.
18.

Term and Termination.

18.1. Term. This Agreement is effective as of the Effective Date set forth above and will
terminate on the fifth (5th) anniversary from the Effective Date unless terminated earlier as set
forth below.
18.2. Termination by Company. The Company may terminate this Agreement, any or all
Services, or any Subcontractor personnel assigned to perform certain Services with or without
cause at any time, upon verbal or written notice to the Subcontractor, with termination to be
effective immediately. Companys client may also terminate any or all Subcontractor personnel
assigned to perform Services with or without cause at any time, upon verbal or written notice to
Subcontractor or Subcontractor personnel. For avoidance of doubt, except as otherwise expressly
communicated by Company in writing, termination of any Services (also referred to herein as an
assignment) or dismissal of any Subcontractor Personnel shall not terminate this Agreement.
18.3. Termination by Subcontractor. Subcontractor may terminate this Agreement without
cause at any time, with termination effective fifteen (15) days required after Subcontractors
delivery to Company of written notice of termination or as requested by client whichever is later.
Subcontractor also may terminate this Agreement upon thirty (30) days after delivery to
Company of written notice of termination for a material breach by Company if Companys
material breach of any provision of this Agreement is not cured within ten (10) days after the
date of Subcontractors written notice of breach. In no event shall Company be liable for any
amounts caused by a delayed start date or termination of Services.
18.4. Effect of Expiration or Termination. Upon expiration or termination of this Agreement,
Company shall only be obligated to pay Subcontractor for Services actually performed and
accepted by Companys client under this Agreement as of the date of such termination. The
definitions contained in this Agreement and the rights and obligations contained in this Section
Page 7 of 10

and Sections 5 (Disclosure and Assignment of Work Resulting from Project Assignments), 6
(Confidentiality), 7 (Ownership and Return of Confidential Information and Company Property),
19.
Noninterference with Business. During this Agreement, and for a period of two (2) years
immediately following the termination or expiration of this Agreement, Subcontractor agrees
(and shall cause its personnel to agree) not to solicit or induce any employee or independent
contractor to terminate or breach an employment, contractual or other relationship with
Company, any third party, or Companys client with which Subcontractor performed any
Services with or for during the term of this Agreement. In consideration for the Confidential
Information provided to Subcontractor (including its personnel) during performance of its
Services, Subcontractor agrees (and shall cause its personnel to agree) that during this
Agreement, and for a period of two (2) years following termination of Services, Subcontractor
(including its personnel providing Services to that contractor) shall not engage in any business
relationship (whether direct or indirect as an employee, independent contractor, or otherwise)
with such Companys client. In the event of any violation of this Section 19, in addition to other
injunctive relief, damages, or contractual remedies set forth herein, the period of noncompetition and non-solicitation shall be extended by a period of time equal to that period of
non-compliance. Subcontractor agrees and acknowledges that the restrictive covenants
contained within this Agreement are fair and reasonably required to protect the interests of the
Company and its contractors.
20.

General Provisions.

20.1. Successors and Assigns. Subcontractor may not subcontract or otherwise delegate
Subcontractors obligations under this Agreement without Companys prior written consent.
Subject to the foregoing, this Agreement will be for the benefit of Companys successors and
assigns, and will be binding on Subcontractors assignees.
20.2. Injunctive Relief. Subcontractors obligations under this Agreement are of a unique
character that gives them particular value; Subcontractors (including any of its personnel)
breach of any of such obligations will result in irreparable and continuing damage to Company
for which money damages are insufficient, and Company shall be entitled to injunctive relief
and/or a decree for specific performance, and such other relief as may be proper (including
money damages if appropriate).
20.3. Notices. Any notice required or permitted by this Agreement shall be in writing and
shall be delivered as follows, with notice deemed given as indicated: (a) by personal delivery,
when actually delivered; (b) by overnight courier, upon written verification of receipt; (c) by
facsimile transmission, upon acknowledgment of receipt of electronic transmission; or (d) by
certified or registered mail, return receipt requested, upon verification of receipt. Notice shall be
sent to the addresses set forth above or to such other address as either party may provide in
writing.
20.4. Governing Law; Forum. This Agreement shall be governed in all respects by the laws of
the United States of America and by the laws of the State of Texas, as such laws are applied to
Page 8 of 10

agreements entered into and to be performed entirely within Texas between Texas residents.
Each of the parties irrevocably consents to the exclusive personal jurisdiction of the federal and
state courts located in Texas, as applicable, for any matter arising out of or relating to this
Agreement, except that in actions seeking to enforce any order or any judgment of such federal
or state courts located in Texas, such personal jurisdiction shall be non-exclusive.
20.5. Severability. If a court of law holds any provision of this Agreement to be illegal,
invalid or unenforceable, (a) that provision shall be deemed amended to achieve an economic
effect that is as near as possible to that provided by the original provision and (b) the legality,
validity and enforceability of the remaining provisions of this Agreement shall not be affected
thereby.
20.6. Waiver; Modification. If Company waives any term, provision or Subcontractors
breach of this Agreement, such waiver shall not be effective unless it is in writing and signed by
Company. No waiver by a party of a breach of this Agreement shall constitute a waiver of any
other or subsequent breach by Subcontractor. This Agreement may be modified only by mutual
written agreement of authorized representatives of the parties.
20.7. Entire Agreement. This Agreement constitutes the entire agreement between the parties
relating to this subject matter and supersedes all prior or contemporaneous agreements
concerning such subject matter, written or oral.

IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first
written above.
Company

Subcontractor

ADVENT GLOBAL SOLUTIONS, INC.

CONSIGA TECHNOLOGIES INC

By:

Signature:
UPENDRA GARIKIPATI

Name
:

Abhishek Vishwanath

Printed Name:

Title:

Delivery Manager

EIN:

35-2161098

Date:

July 6th 2015

Date: July 6th 2015

Page 9 of 10

Page 10 of 10