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COMPANY desires to retain CONSULTANT as an independent contractor to perform consulting services and/or training services with respect to COMPANY’s proprietary testing software (“Services”) for customers of COMPANY and CONSULTANT is willing to perform such Services, on the basis set forth more fully below. In consideration of the mutual promises contained herein, COMPANY and CONSULTANT agree as follows: 1. Services. COMPANY may from time to time issue project assignments in the form attached to this Agreement hereto as Exhibit A (“Project Assignment Appendix”). During the term hereof, CONSULTANT agrees to perform the Services described in any Project Assignment Appendix, accepted by CONSULTANT, according to the schedule of work set forth therein. 2. Project Assignment Appendix. For each Project Assignment, a Project Assignment Appendix shall be prepared by COMPANY and signed by CONSULTANT and COMPANY. The Project Assignment Appendix shall contain the following terms and conditions as applicable: (i) the scope of the Project Assignment, (ii) the name and location of COMPANY’s customer for whom the Services are being performed (the “Customer”), (iii) the anticipated schedule, and (iv) the payment structure. 3. Payment for Services. COMPANY shall pay CONSULTANT the fees set forth in the applicable Project Assignment for the performance of the Services, together with reimbursement for CONSULTANT’s direct costs and out of pocket expenses as provided herein. 4. Taxes. The fees payable under this Agreement shall not be construed to include local, state or federal sales, use, excise, personal property or similar taxes or duties (hereinafter “Taxes”) and any such Taxes other than Taxes based on the net income of CONSULTANT shall be assumed and paid for by COMPANY. 5. Emplovment Taxes and Benefits. CONSULTANT acknowledges and agrees that it shall be the obligation of CONSULTANT to report as income all compensation received by CONSULTANT pursuant to this Agreement. As applicable, CONSULTANT shall be solely responsible for payment of salary (including withholding of income taxes and social security) and associated benefits of its employees. 6. Relationship of Parties. CONSULTANT shall perform the Services under the general direction of COMPANY’s project manager, but CONSULTANT shall determine, in CONSULTANT’s sole discretion, the manner and means by which the Services are accomplished, subject to the express condition that CONSULTANT shall at all times comply with applicable law. CONSULTANT is an independent contractor and CONSULTANT is not an agent or employee of COMPANY, and has no authority whatsoever to bind COMPANY by contract or otherwise. CONSULTANT assumes full responsibility for the actions of CONSULTANT’s employees while performing the Services. All Services shall be performed exclusively by CONSULTANT or CONSULTANT’s employees and in no event shall CONSULTANT retain independent contractors to perform Services, unless CONSULTANT obtains COMPANY’s prior written consent and any independent contractors retained execute an agreement regarding confidentiality and ownership of proprietary rights in a form acceptable to the COMPANY. 7. Certification. Prior to commencing any Services, CONSULTANT or CONSULTANT’s employees and/or contractors, as the case may be, shall complete the training and certification specified in Exhibit B (“Training and Certification”) hereto. 8. Customer Rules. Unless otherwise specified in the Project Assignment Appendix, CONSULTANT shall perform the Services at Customer’s site. CONSULTANT shall observe the working hours, working rules and holiday schedules of Customer, when working on a Customer’s premises. 9. Company Propertv. CONSULTANT acknowledges that COMPANY’s sole and exclusive property includes all documents, such as drawings, designs, blueprints, manuals, notes, notebooks, reports, formulas, memoranda, records, files, computer programs, machine listings, data and the like delivered to CONSULTANT by COMPANY, for CONSULTANT’s use in the performance of Services under this Agreement. CONSULTANT agrees to redeliver promptly all COMPANY property and all copies of COMPANY property in CONSULTANT’s possession to COMPANY at any time upon COMPANY’s request or upon termination of this Agreement for any reason or in any manner, except as COMPANY may, by prior written permission, allow CONSULTANT to retain. 10. Proprietary Rights in Work Product and Data. COMPANY shall retain all rights in any and all work product, programs, documentation, course materials, notes and techniques used to perform the Services rendered under the terms of any Project Assignment (the “Work Product”). CONSULTANT irrevocably assigns to COMPANY and its respective successors and assigns, all right, title and interest in and to the Work Product and all patents, copyrights, trade secrets, know-how, and other proprietary rights contained therein, and all claims and causes of action relating to any of the foregoing rights. CONSULTANT agrees to take all actions and execute all any and all documents requested by COMPANY, at COMPANY’s expense, to fully vest in COMPANY all right, title, and interest in the Work Product. 11. Confidentiality. CONSULTANT agrees to hold COMPANY’s and Customer’s Confidential Information in confidence and not to disclose such Confidential Information to any third parties. For purposes hereof, “Confidential Information” shall include all confidential and proprietary information of COMPANY, Customer, or any third party, disclosed by COMPANY or Customer to CONSULTANT, which, in the case of information disclosed orally, is identified at the time of disclosure as confidential, or in the case of information disclosed in writing, is labeled as confidential. The above obligations shall not apply to Confidential Information which: (a) was in the public domain at the time it was communicated to CONSULTANT by COMPANY or Customer; (b) entered the public domain subsequent to the time it was communicated to CONSULTANT by COMPANY or Company through no fault of CONSULTANT; (c) was in CONSULTANT’s possession free of any obligation of confidence at the time it was communicated to CONSULTANT by COMPANY or Customer;(d) was rightfully communicated to CONSULTANT free of any obligation of confidence subsequent to the time it was communicated to CONSULTANT by COMPANY or Customer; (e) was developed by employees or agents of CONSULTANT independently of and without reference to any information communicated to CONSULTANT by COMPANY or Customer; (f) was communicated by COMPANY or Customer to an unaffiliated third party free of any obligation of confidence; or (g) was part of a communication in response to a valid order by a court or other governmental body, was otherwise required by law, or was necessary to establish the rights of either party under this Agreement. 12. Termination. This Agreement shall commence on the Effective Date and shall continue until terminated as follows: (a) Either party may terminate the Agreement in the event of a breach by the other party of any of its obligations contained herein if such breach continues uncured for a period of ten (10) days after written notice of such breach to the other party; (b) Either party may terminate this agreement upon written notice to the other party if either party is adjudicated bankrupt, files a voluntary petition of bankruptcy, makes a general assignment for the benefit of creditors, is unable to meet its obligations in the normal course of business as they fall due or if a receiver is appointed on account of insolvency; (c) Either party may terminate this agreement for its convenience upon thirty (30) days’ prior written notice to the other if there is no outstanding Project Assignment Appendix in effect. (d) COMPANY may terminate if CONSULTANT is not meeting minimum performance standards. 13. Warranty of Performance. CONSULTANT warrants that the Services performed under this Agreement will be performed in a professional and workmanlike manner. THE FOREGOING WARRANTY IS IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. 14. Limitation. IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR LOSS OF PROFIT, GOODWILL OR OTHER INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES SUFFERED BY THE OTHER IN CONNECTION WITH OR ARISING UNDER THIS AGREEMENT. 15. General. 15.1 Governing Law: Severability. This Agreement shall be governed by and construed in accordance with the laws of the Commonwealth of Massachusetts. If any provision of this Agreement is for any reason found by a court of competent jurisdiction to be unenforceable, the remainder of this Agreement shall continue in full force and effect. 15.2 Complete Understanding: Modification. This Agreement constitutes the full and complete understanding and agreement of the parties hereto and supersedes all prior and contemporaneous understandings and agreements, whether written or oral. Any waiver, modification or amendment of any provision of this Agreement shall be effective only if in writing and signed by the parties hereto. 15.3 Notices. Any notices required or permitted hereunder shall be given to the appropriate party at the address specified above or at such other address as the party shall specify in writing. Such notice shall be deemed given upon personal delivery to the appropriate address or if sent by certified or registered mail, upon receipt. IN WITNESS WHEREOF, the parties hereto have signed this Agreement. SEGUE SOFTWARE, INC. CONSULTANT By: ________________________ _________________________ Name: ______________________ By: ______________________ Title: _______________________ Name: ____________________ Title: _____________________ EXHIBIT A Customer: Segue Software Project: Technical Support Department Subcontractor’s Name: Joe Kuefler CONSULTANT shall render the following Services: Special assignments to include, but not limited to, technical support of Radar and the Segue regression suite (QualityWorks and SILK) of products under the direct supervision of the Technical Support Manager. The project may also include travel to provide on-site technical support for Segue customers as determined by the Technical Support Manager. Schedule of Work: The work will commence on 9/1/98 and end on 9/30/98. The contract will consist of 22 work days. Fees and Reimbursement: A. Fee: $1000 per day. B. Reimbursement for the following direct costs and out of pocket expenses at cost, as approved in advance by COMPANY: Expenses will be covered for any on-site technical support deemed necessary by the Technical Support Manager. C. Within five (5) business days of completion of the Services, CONSULTANT shall invoice COMPANY for services and expenses (fees, direct costs, out of pocket expenses) and shall provide receipts or other documentation of direct costs and out pocket expenses, including copies of time records. D. Payment terms: net fifteen (15) days from receipt of invoices. 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