ARRAY Development

Consulting Agreement

This Agreement has been made between ARRAY Development (Canada) Inc. (The Company) and
email: ______________________________________________________________________________ ,
Web: ______________________________ _______________________________________________ ,
tel. ______________________________ , fax: _______________________________ (The Consultant).
The undersigned Consultant hereby covenants and agrees to conduct the following Assignment:


1. Services

Consultant agrees to provide to the Company consulting services as are described on Schedules executed from time to time by both parties to this Agreement (the "Schedules"). Such services will be on either a "fixed price" or "time and materials" basis, as specified in the applicable Statement of Work.

1.1 Statement of Work
Each Statement of Work will contain, if applicable:

1.2 The Use of English
Consultant agrees that, unless specified in a particular Schedule, English will be the working language for every project. Moreover, the text of this Consulting Agreement and all other project documentation will be only valid in English.
All English-language documents will be produced by the Consultant to the satisfaction of the Company.

2. Consultant Personnel

2.1 Consultant Project Manager
Consultant will appoint for each Schedule a qualified member of its staff to act as project manager (the "Consultant Project Manager"), whose duties will be to act as liaison between Company and Consultant.

2.2 Consultant Staff
Consultant will provide adequate staff to complete the services specified in the Schedule within the timeframe specified in the Schedule. If requested, Consultant will provide Company with resumes of all staff to be assigned to perform services under any Schedule. Company will have the right to evaluate all Consultant personnel assigned to perform services under any Schedule and to accept or reject any individual(s).

In the event that any Consultant employee is found to be unacceptable to Company, Company will notify Consultant of such fact and Consultant will immediately remove said employee and, if requested by Company, provide a replacement acceptable to Company, within five (5) days of said notice. Company may elect not to request a replacement, and, in that event Company may terminate the applicable Schedule, without further liability of any kind, upon written notice to Consultant. Company is the sole judge as to performance capability.

Consultant agrees to ensure the continuity of Consultant employees assigned to perform services specified in a particular Schedule. Unless otherwise agreed to in writing by Company, Consultant will not remove or replace personnel provided in a particular Schedule. Any removal or reassignment by Consultant of those of its employees assigned in a particular Schedule to perform services must be with one (1) month's prior written notice to Company and with Company's prior written consent as to the removal or reassignment and as to any replacement employee, who must have substantially equivalent or better qualifications than the employee being replaced. In the event Consultant replaces any of its employees with Company's consent, Consultant will promptly provide such replacement.

2.3 Independent Contractor
Consultant is an independent contractor. Neither Consultant nor Consultant's employees are, or will be deemed for any purpose to be, employees of Company. Company will not be responsible to Consultant, Consultant's employees or any governing body for any payroll-related taxes related to the performance of the Services. The Company will not be responsible for any activities by the Consultant nor Consultant's employees that contravene laws of the any governmental body having legislative jurisdiction over the business location of the Consultant.

3. Project Management

3.1 Progress Reports
Consultant will submit a detailed Progress Report to Company at least weekly during the term of each Schedule. Such progress reports will detail work performed to date and estimated time and cost to complete.

3.2 Meetings
If Company so requests, Consultant will hold status meetings with Company in order to review the status of Consultant activities. Meetings might be held either through Internet teleconferencing (preferred), or face-to-face. In cases of face-to-face meetings the Company will cover the cost of travel expenses only if it had directly requested a meeting or if the meeting is specified as a part of the appropriate Schedule.

4. Fees, Expenses, Records and Taxes

4.1 Fees
With the Company accepting the principal milestones specified in the appropriate Schedule, the Consultant will invoice Company in accordance with the Schedule of Payments set forth in the Schedule.

4.2 Review of Fees
Consultant will submit the charges to be invoiced for services performed and the applicable time reports or documentation under any Schedule to the Company for approval prior to, or at the time of actual invoicing. The charges and/or expenses invoiced in accordance with this Paragraph, except for any amounts disputed by Company, will be payable by Company in accordance with Schedule 2 "Offshore Software Developer Payment Schedule" and within thirty (30) days of Company's receipt of each invoice.

4.3 Maximum Dollar Amount
Notwithstanding anything to the contrary contained herein, Company will not be liable for any charges and/or expenses under any Schedule for work in excess of the agreed total payment (Maximum Dollar Amount) specified on such Schedule.

4.4 Records
Consultant will maintain complete and accurate accounting records, in a form in accordance with generally accepted accounting principles in effect in the Province of Ontario, Canada, to substantiate Consultant's charges and expenses. Consultant will retain such records for a period of one (1) year from the date of final payment under any Schedule.

5. Acceptance of Services

5.1 Acceptance Criteria
Each deliverable will be subject to acceptance testing by Company to verify that the deliverable satisfies the acceptance criteria mutually agreed to by Company and Consultant for said deliverable.

The acceptance criteria for each deliverable, which will be included in the applicable Schedule, will be jointly developed and mutually agreed to in writing by Company and Consultant before work commences under the Schedule, when possible, but in no event later than thirty (30) days in advance of the date identified in the Schedule for production of the deliverable involved. If Company in good faith cannot agree to any of the acceptance criteria proposed by Consultant, Company may terminate this Agreement without incurring any liability.

5.2 Acceptance Testing
Acceptance testing for any deliverable will commence within five (5) working days of the date on which Consultant notifies the Company in writing, that the deliverable has been satisfactorily completed, in Consultant's opinion, and is ready for acceptance testing by Company. Acceptance testing will continue for the period of time specified in the acceptance criteria or, if no such time period has been agreed upon by the parties, for a period of thirty (30) consecutive days ("the Initial Acceptance Period").

In the event that any deliverable does not conform to the acceptance within the Initial Acceptance Period described above, Company will provide the Consultant with a written notice. Company will cooperate with Consultant in identifying in what respects the deliverable has failed to conform to the criteria. Consultant will, at no cost to Company, promptly correct any deficiencies which prevent such deliverable from conforming to the criteria. Upon completion of the corrective action by Consultant, and at no additional cost to Company, the acceptance test will be repeated until the deliverable has successfully conformed to the acceptance criteria.

If the deliverable does not conform to the acceptance criteria within sixty (60) days after the end of the Initial Acceptance Period described above, Company may:

When the deliverable has successfully conformed to or satisfied the acceptance criteria, Company will provide the Consultant with a written notice.

6. Indemnity and Insurance

6.1 Indemnity
Consultant represents and warrants to Company that none of the materials will in any way infringe upon the property rights of others.

Consultant agrees to defend at its own cost and expense any claim or action against Company, its subsidiaries and/or affiliated companies, for actual or alleged infringement of any patent, copyright or other property right (including, but not limited to, misappropriation of trade secrets) based on any software, program, service and/or other materials furnished to Company by Consultant pursuant to the terms of this Agreement or the use thereof by Company.

Consultant further agrees to indemnify and hold Company, its subsidiaries and/or affiliated companies, harmless from and against any and all liabilities, losses, and expenses associated with any such claim or action.

Consultant agrees, should Company's use of any service, program, and/or other material furnished to Company by Consultant be enjoined by any court, to promptly obtain, at no expense to Company, the right to continue to use the items so enjoined or, at no expense to Company, provide Company promptly with substitute items that are functionally equivalent to the enjoined products.

Consultant will be liable for and will indemnify and hold Company, its subsidiaries and/or affiliated companies harmless against any loss or damage in connection with or arising out of the fault or negligence of Consultant.

Consultant agrees to indemnify Company, its subsidiaries and/ or affiliated companies for any liability or expense due to claims for personal injury to property arising out of the furnishing, performance or use of the services or materials provided hereunder as well as any claim for payment of compensation or salary asserted by an employee of Consultant.

6.2 Insurance

Consultant will procure and maintain for itself and its employees all insurance coverages as required by its corresponding jurisdiction. If so requested, by the Company, the Consultant agrees to provide proof of insurance within 14 days of a request. The Company is not responsible for any insurance payments incurred by the Consultant.

7. Confidentiality and Proprietary Rights

7.1 Confidentiality
The Consultant acknowledges that in the course of the Agreement, the Consultant will be exposed to valuable confidential and trade secret information of the Company and that Company, its subsidiaries and affiliated companies are the owners of such valuable trade secrets, and other confidential information and license same from others. The Consultant agrees to treat all such information as confidential and to take all necessary precautions against disclosure of such information to third parties during and after the term of this Agreement.

Consultant further acknowledges that:

On request by the Company, the Consultant will provide, within 14 business days, written business guidelines for its procedures to protect the confidentiality of Company's confidential and trade secret information.

7.2 Non-Disclosure
By reason of its duties under this Agreement, Consultant might come into possession of information concerning such services or information furnished by clients, even though Consultant does not himself take any direct part in or furnish the services performed for those clients. All such information owned by Company, its subsidiaries and/or affiliated companies, licensed by Company, its subsidiaries and/or affiliated companies or concerning clients of Company, its subsidiaries and/or affiliated companies and services rendered by Company, its subsidiaries and/or affiliated companies to such clients is hereinafter collectively referred to as Confidential Information.

Consultant agrees that:

7.3 Injunctive Relief
Consultant acknowledges that disclosure of any Confidential Information by Consultant will give rise to irreparable injury to Company, its subsidiaries and/or affiliated companies or the owner of such information, inadequately compensable in damages. Accordingly, Company or such other party may seek and obtain injunctive relief against the breach or threatened breach of the foregoing undertakings, in addition to any other legal remedies which may be available. Consultant acknowledges and agrees that the covenants contained herein are necessary for the protection of legitimate business interests of Company, its subsidiaries and/or affiliated companies and are reasonable in scope and content.

7.4 Source Code
With the conclusion of each Schedule or the whole Agreement, the Consultant will provide the Company with all source code produced by the Consultant under the term of this Agreement.

7.5 Proprietary Rights
All information, reports, studies, object or source code, flow charts, diagrams, designs, drawing and images and other tangible or intangible material of any nature whatsoever produced by or as a result of any of the services under this Agreement and the Schedules(whether or not such Schedule is completed), and all copies of any of the foregoing should be the sole and exclusive property of Company. All title and interest in such work will vest in Company and will be deemed to be a work made for hire, of which Company should be deemed the sole author.

To the extent that title to any such works may not, by operation of law, vest in Company or such works may not be considered works made for hire, all rights, title and interest therein are hereby irrevocably assigned to Company. All such materials will belong exclusively to Company, with Company having the right to obtain and to hold in its own name, copyrights, registrations or such other protection as may be appropriate to the subject matter, and any extensions and renewals. Consultant should be entitled to make absolutely no use of any of the materials except as may be expressly permitted in this Agreement.

Consultant agrees to give Company and any person designated by Company, reasonable assistance, at Company's expense, required to perfect the rights defined in this Paragraph. Unless otherwise requested by Company, upon the completion of the services to be performed under each Schedule or upon the earlier termination of such Schedule, Consultant will immediately turn over to Company all materials and deliverables developed pursuant to such Schedule.

Consultant agrees to execute any documents reasonably requested by Company in connection with the registration of Copyrights, Patents or Trademarks in the materials produced under this Agreement. All items provided to Company which qualify as Company property should be marked as follows:

Copyright 199__ by ARRAY Development (Canada) Inc.
All rights reserved.

8. Warranties

Consultant warrants that:

9. General

9.1 Timeliness of Performance
Consultant understands that prompt performance of all services is required by Company in order to meet its Schedule(s) and commitments. In the event that any anticipated or actual delays in meeting Company's deadlines or Schedule completion dates are caused by the unacceptable performance of any Consultant employee or any other cause within the reasonable control of Consultant, Consultant will provide additional temporary personnel, as requested by Company and at no charge to Company, in order to complete the assignment involved in a timely manner.

9.2 Term and Termination
This Agreement will commence on the date as indicated on the first attached Schedule and will continue in full force and effect thereafter unless and until terminated in accordance with the provisions of this Agreement or any Schedule or until satisfactory completion of the services provided in all Schedules, based on the acceptance criteria set forth in said Schedules.

In the event of any material breach of this Agreement by either party, the other party may cancel this Agreement, by giving thirty (30) days' prior written notice thereof, provided, however, that this Agreement will not terminate at the end of said thirty (30) days' notice period if the party in breach has cured the breach of which it has been notified prior to the expiration of said thirty (30) days.

In the absence of a material breach of this Agreement by Consultant, Company may terminate this Agreement or any Schedule hereunder by giving Consultant two weeks prior written notice of its election to terminate said Agreement or Schedule. In such a case Company will compensate Consultant for all the work performed according to the Schedule that has been accomplished by the date of the written notice to terminate the Schedule, providing the Consultant submits all the materials accumulated on the project up to date. The Company will also reimburse Consultant for any additional work that it might require Consultant to undertake during the next two weeks.

9.3 Assignment
This Agreement will be binding upon the parties' respective successors and permitted assigns. The Consultant cannot assign this Agreement or any of its rights or obligations without the prior written consent of the Company, and any such attempted assignment will be void.

The Company might assign this Agreement, or any of its rights or obligations, to any of its subsidiaries, subcontractors or affiliated companies, without the consent of Consultant.

No work to be performed by Consultant within the scope of this Agreement will be subcontracted to or performed on behalf of Consultant by any third party, except upon written permission by Company.

9.4 Notices
Any notices or communication under this Agreement that might change the terms of this Agreement or the terms specified in a particular Schedule will be in writing, signed by the Officers of the respective party to this Agreement and will be sent by registered mail with return receipt requested to the party receiving such communication.

Any other notices or communication under this Agreement will be in writing and will be emailed, faxed or sent by surface or registered mail.

9.5 Governing Law
This Agreement will be governed by and construed in accordance with the laws of the Province of Ontario, Canada.

9.6 Modifications
No modification, amendment, supplement to or waiver of this Agreement or any Schedule hereunder, or any of their provisions will be binding upon the parties hereto unless made in writing and duly signed by both parties.

9.7 Waiver
A failure of either party to exercise any right provided for herein, will not be deemed to be a waiver of any right hereunder.

9.8 Complete Agreement
This Agreement and each Schedule attached hereto set forth the entire understanding of the parties as to the subject matter and may not be modified except in a writing executed by both parties.

9.9 Severability
In the event any one or more of the provisions of this Agreement or of any Schedule is invalid or otherwise unenforceable, the enforceability of remaining provisions will be unimpaired.

9.10 Publicity
Consultant agrees that it will not, without prior written consent of Company use in advertising, publicity or otherwise the name of Company, or any affiliate of Company, or refer to the existence of this Agreement in press releases, advertising or materials distributed to prospective Clients.

9.11 Most Favored Company
Consultant agrees to treat Company as its most favored Company. Consultant represents that all of the provisions of this Agreement and any Schedule are comparable to or better than the equivalent provisions being offered by Consultant to any of its other Clients.

If Consultant offers more favorable provisions to any Company during the terms of their contract periods than under this Agreement or any Schedule, such provisions will be made available to Company.

9.12 Non-Competition
Consultant agrees, until the expiration of three (3) years after the termination of this Agreement, not to engage, directly or indirectly, or through any corporations or associates in any business, enterprise or assignment that is directly competitive with the Company's business derived from his Agreement or its Schedules, or that involves Company's Clients that Consultant was introduced to in the course of this Agreement or its Schedules.

9.13 Non-Solicitation
Unless otherwise mutually agreed to by the parties in writing, Consultant agrees not to hire or to solicit the employment of any personnel of Company directly or indirectly associated with Consultant's work effort under any Schedule during the term of such Schedule and for a period of six (6) consecutive months thereafter.

9.14 Surviving Sections
The following sections will survive the termination of this Agreement: 4.3, 4.4, 6, 7, 8, 9.5, 9.9, 9.12, 9.13.

9.15 Indemnification
Consultant should indemnify Company and hold it harmless against any claim or action which alleges that the use of Consultant's work or product infringes a Canadian patent, copyright, trademark or other proprietary right of a third party, and should pay all costs and damages of Company (including reasonable legal fees) provided that Company notifies Consultant promptly of any such claims. Consultant should have the right to control the defense and disposition of all such claims.
___________________________ ___________________________
By: Nahum Goldmann By: ________________________
Title: VP, R&D  Title: _______________________
Date: _______________________ Date: _______________________
ARRAY Development
P.O. Box 5145, Stn. F
Ottawa, Ont. K2C 3H3
email: array (at)
Fax: (613)248-4819
Phone: (613)733-0399

Schedule 1 (General Services)
1. Separate project phases As quoted and agreed to by both parties
2. Additional number of hours As requested by the Company
3. Billed hourly rate CD$__/hour , including use of equipment and all other overhead incurred by the Consultant

Schedule 2 (Offshore Software Developers Payment Schedule)
  1. All programming assignments delivered within the contracted time period and subsequently accepted at the quality assurance (QA) phase will be eligible for a 10% bonus.
  2. Assignments delivered within 30 calendar days after the contracted time period will be eligible for only 75% of the contracted amount.
  3. We will not accept any assignment delivered later than 30 calendar days after the contracted date as the contract will have expired.
  4. On assignment delivery, a 30% advance will be made immediately towards the full payment based on the assignment's value.
  5. Once delivered, the code will go through a rigorous testing and quality assurance process. The QA process will include testing the code against all conditions of the contract including relevant specs, and can take up to 60 days.
a. If the code is successfully validated, the outstanding balance (70% of the contract value) and any applicable bonuses will be paid immediately.
b. If the code fails validation, a period of 30 days will be allowed to address and correct any problems and the QA process will be repeated.
ARRAY Development accepts quotations only in Canadian dollars, but will make payments in the currency of the contractor's choice, based on the rate of exchange on the day of payment.

Please contact us using email (preferred), fax or by phone, to:
array (at)
Phone: (613)733-0399
Fax: (613)248-4819

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