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Agreement For Consulting Services

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Sectors: Media, Telecommunications
Governing Law: New York, View New York State Laws
Effective Date: February 22, 2003
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CONFIDENTIAL
AGREEMENT FOR CONSULTING SERVICES


THIS AGREEMENT FOR CONSULTING SERVICES is made and entered into as of February 22, 2003 (the "Effective Date"), by and between America Online, Inc., a Delaware corporation, with offices at 22000 AOL Way, Dulles, Virginia 20166 (hereinafter referred to as "AOL"), and America Online Latin America, Inc., a Delaware corporation, with principal offices at Suite 400, 6600 N. Andrews Avenue, Ft. Lauderdale, Florida 33309 (hereinafter referred to as "Consultant") (each a "Party" and collectively the "Parties").


AOL, operates the America Online(R) brand service, an interactive computer communications, information and transactions service. Consultant is familiar with the America Online(R) brand service. AOL desires to engage the services of Consultant and Consultant desires to accept such engagement upon the terms and conditions set forth herein.


NOW, THEREFORE, in consideration of the mutual promises set forth herein, AOL and Consultant hereby agree as follows:


1. SERVICES AND SCOPE OF WORK


1.1 SERVICES. Consultant agrees to provide to AOL consulting
services ("Consulting Services") as they are described on
Schedule 1 attached hereto as Exhibit A and on such schedules
as are executed from time to time by both Parties to this
Agreement (the "Schedules"). Each Schedule shall be
consecutively numbered and annexed hereto. Consulting Services
shall be provided in accordance with the provisions of this
Agreement and the applicable Schedule.


1.2 SCOPE OF WORK. Each Schedule shall contain a description of
the tasks to be performed by Consultant, the deliverables and
documentation, if any, to be produced by Consultant
(collectively, "Deliverables"), a schedule of performance, a
schedule of payments and a statement of Consultant's
then-current rates, if applicable.


1.3 PERFORMANCE OF SERVICES. Consultant has the right to (i)
control and direct the means, manner and method by which the
Consulting Services are performed, and (ii) perform the
Consulting Services at any place or location and at such time
as Consultant may reasonably determine. Unless otherwise
agreed to by the Parties in writing or on a Schedule,
Consultant shall (i) observe the working hours, working rules
and polices of AOL while working on AOL's premises, and (ii)
furnish all equipment and materials used to perform the
Consulting Services, including but not limited to telephone
lines, personal computers and modems.


1.4 OTHER WORK. Consultant shall ensure that the Programmers are
dedicated solely to providing the Consulting Services
hereunder. In the event Consultant wishes to perform work of a
similar nature to the Consulting Services (i.e., programming
Hispanic content or area) during the term of this Agreement
for any Interactive Service based in the U.S., Consultant
shall give AOL ninety (90) days prior written notice thereof
and AOL shall have the right to terminate this agreement upon
thirty (30) days written days notice thereof. As used herein,
an Interactive Service is an entity offering one or more of
the following: (i) online or Internet connectivity services


1


(e.g., an online service or Internet service provider); (ii)
an interactive site or service featuring a broad selection of
aggregated third party interactive content (or navigation
thereto) covering a broad range of subjects and targeted at a
broad audience (e.g., a search and directory service or
portal) and/or marketing a broad selection of products and/or
services across numerous "vertical" interactive commerce
categories (e.g., an online mall or multiple-category
e-commerce site); or (iii) communications software capable of
serving as the principal means through which a user creates,
sends or receives electronic mail or real time online
messages.


1.5 COMPLIANCE WITH APPLICABLE LAW. Except with respect to actions
taken per the express instructions of AOL, Consultant shall
ensure that Consultant complies with all applicable local,
state and federal law and AOL's then-current Terms of Service
in performing the Consulting Services.


2. CONSULTANT PERSONNEL


2.1 CONSULTANT PROJECT MANAGER. The Parties shall mutually agree
on which Programmer will act as project manager for Consultant
(the "Consultant Project Manager"), whose duties shall be to
act as liaison between AOL and Consultant.


2.2 INDEPENDENT CONTRACTOR; NO AGENCY. Consultant is an
independent contractor. Consultant shall not be deemed for any
purpose to be an employee of AOL. AOL shall not be responsible
to Consultant or any governing body for any payroll-related
taxes related to the performance of the services, including
but not limited to, withholding or other taxes related to
federal or state income tax, social security benefits or
unemployment compensation. This Agreement shall not be
interpreted or construed to provide that either Party is an
agent, representative or partner of the other Party. This
Agreement shall not be interpreted or construed to provide
that either Party shall have any right, power or authority to
enter into any agreement for or on behalf of, or incur any
obligation or liability on behalf of, or to otherwise bind,
the other Party. This Agreement shall not be interpreted or
construed to create an employment relationship, an
association, agency, joint venture or partnership between the
Parties or to impose any liability attributable to such a
relationship upon either Party.


2.3 CONSULTANT'S EMPLOYEES AND ASSISTANTS. From time to time,
Consultant may, subject to the terms and conditions set forth
in this Agreement, engage employees, independent contractors,
consultants, volunteer assistants or other persons or entities
(collectively, "Assistants") to aid Consultant in performing
Consultant's duties under this Agreement. AOL has no
relationship with or to such Assistants and such Assistants
are not employees, agents, consultants, representatives,
assistants or independent contractors of AOL. Consultant shall
be fully and solely responsible for the supervision and
payment of such Assistants and for all work performed by such
Assistants and any third party subcontractors approved by AOL
as provided in this Agreement.


3. PROJECT MANAGEMENT


3.1 AOL PROJECT MANAGER. AOL shall designate a project manager
for each Schedule (the "AOL Project Manager") who shall act
as a liaison between AOL and Consultant.


3.2 [intentionally deleted]


3.3 ACCOUNTS. Consultant shall be given account(s) for the America
Online(R) brand service for the exclusive purpose of enabling
it and its agents to perform Consultant's duties under this
Agreement. The account(s) shall be of the type determined by
AOL to be necessary for Consultant to perform its duties
hereunder. Consultant shall be responsible for any premium
charges, transaction charges, communication surcharges or
other charges incurred by any such account(s), other than
AOL's standard monthly subscription charge. Consultant shall
be responsible for the actions taken under or through its


2


account(s), which actions shall be subject to AOL's
then-applicable Terms of Service. Upon termination of this
Agreement, the account(s), and any associated usage credits
and related screen names or similar rights, shall
automatically terminate. AOL shall have no liability for loss
of data or content related to termination of any account.


3.4 SOFTWARE TOOLS. AOL shall provide each Programmer with such
proprietary software tools (each a "Tool") as AOL determines
are reasonably necessary for such Programmer to perform
Consultant's obligations hereunder , which tools shall be made
available to the Programmers solely in order for Consultant to
perform its duties hereunder. Consultant shall be granted a
nonexclusive license to use any such Tool, which license shall
be subject to: (i) Consultant's compliance with all rules and
regulations relating to use of the Tools, as published from
time to time by AOL, (ii) AOL's right to withdraw or modify
such license at any time (and provide a replacement Tool, if
AOL determines such replacement tool is reasonably necessary
for such Programmer to perform Consultant's obligations
hereunder and a replacement AOL proprietary software tool
exists and is provided to AOL programmers), and (iii)
Consultant's express recognition that AOL provides all Tools
on an "as is" basis, without warranties of any kind. Subject
to the two preceding sentences, AOL shall provide the
following tools to the Programmers: VPD (Visual Publish
Designer), Rainman, Grinder, Shark, Shark Lite, Community
Center tool (for publishing), Poll tool (to cover all "voting
tools" including quizzes, surveys, ratings, polls, etc.), URC,
ASPP, Webstats, Community Centers Analysis Pages, Tracer X,
Telescope and other mutually agreed upon publishing tools. To
the extent the foregoing tools have not been rolled out to AOL
programmers, such tools shall be provided to relevant
Programmers when they are made available to AOL programmers.
Notwithstanding the foregoing, to the extent a Programmer is
unable to fulfill a specific Consultant obligation hereunder
as a result of AOL's not providing a Tool which is necessary
for the fulfillment of such obligation, Consultant shall be
relieved of its obligation to perform such obligation until
such time as the necessary Tool is provided by AOL.


3.5 REPORTS. Consultant will have access to systems that will
produce reports specifying the prior month's aggregate usage
and impressions with respect to AOL Latino.


4. FEES, EXPENSES AND TAXES


4.1 FEES. Each Schedule shall set forth the fee due for the
Consulting Services to be provided pursuant to the Schedule
and Consultant agrees to invoice AOL as set forth in the
Schedule.


4.2 EXPENSES. Expenses will be reimbursed as set forth in each
applicable Schedule.


4.3 [intentionally deleted]


4.4 MAXIMUM DOLLAR AMOUNT. Notwithstanding anything to the
contrary contained herein, AOL shall not be liable for any
charges and/or expenses under any Schedule for work in excess
of the Maximum Dollar Amount specified on such Schedule.


4.5 [intentionally deleted]


4.6 TAXES. Consultant shall be responsible for determining the
applicability of any sales, use, excise, or similar taxes
which may be applicable to the performance of the Consulting
Services, if any. Consultant shall clearly and separately
state any applicable taxes on Consultant's invoice to AOL for
corresponding Consulting Services. AOL shall pay applicable
taxes on the invoice or, in lieu of the payment of any such
taxes, AOL may provide Consultant with a certificate
acceptable to the taxing authorities exempting AOL from


3


payment of these taxes. Consultant shall pay all taxes
collected from AOL to the appropriate taxing authority.
Consultant shall indemnify AOL for any penalties and/or
interest which may accrue as a result of Consultant's failure
to fulfill its obligations under this Section 4.6.


5. ACCEPTANCE OF SERVICES


All Consulting Services and Deliverables delivered by the Consultant
pursuant to the Agreement and the attached Schedules shall be subject
to acceptance by AOL as follows. In the event AOL is not reasonably
satisfied with the work performed hereunder, AOL will notify Consultant
in writing (email notice to suffice) stating the reason(s) AOL is not
satisfied and Consultant will address AOL's concerns and re-deliver the
work to AOL within three (3) business days of receiving such notice or
as otherwise reasonably requested. Such process will be repeated until
the work has been accepted by AOL; provided that, if AOL is not
reasonably satisfied and does not accept the same work three (3) times,
in addition to any other rights AOL may have hereunder, AOL may
terminate this Agreement upon thirty (30) days written notice.


6. TERM AND TERMINATION


6.1 TERM. This Agreement shall commence on the Effective Date and
shall continue in full force and effect thereafter unless and
until it is terminated or expires in accordance with the
provisions of this Agreement or any Schedule.


6.2 TERMINATION FOR BREACH. Either Party may terminate this
Agreement at any time in the event of a material breach by the
other Party which remains uncured after thirty (30) days
written notice thereof (or such shorter period as may be
specified in this Agreement or in any applicable Schedule).


6.3 Notwithstanding the other remedies in this Section 6, in the
event that Consultant (a) ceases to do business in the normal
course or (b) fails to produce work as required hereunder in
material breach of this Agreement and Consultant is unable or
will be unable to cure within thirty (30) days, or (c) fails
to produce the Consultant Services in a timely manner as
required under this agreement or any Schedule in material
breach of this Agreement and Consultant is unable or will be
unable to cure within thirty (30) days, AOL may elect in its
sole discretion and in addition to any other remedies
available under this Agreement, require Consultant to use all
commercially reasonable efforts to facilitate an arrangement
with one or more of its Programmers and EFE to enable AOL to
pay such Programmers directly for ongoing consultants services
(or EFE for the Content) or AOL may, at its sole discretion,
employ the services of any other consultants or third parties
to perform the consulting services contemplated under this
Agreement.


6.4 TERMINATION FOR BANKRUPTCY/INSOLVENCY. Either Party may
terminate this Agreement immediately following written notice
to the other Party if the other Party (i) ceases to do
business in the normal course, (ii) becomes or is declared
insolvent or bankrupt, (iii) is the subject of any proceeding
related to its liquidation or insolvency (whether voluntary or
involuntary) which is not dismissed within ninety (90)
calendar days or (iv) makes an assignment for the benefit of
creditors.


6.5 AOL RIGHTS AND PAYMENT UPON TERMINATION. If either Party
terminates the Agreement, AOL agrees to pay Consultant for a
pro rata portion of the fee for worked performed hereunder.


7. TERMS AND CONDITIONS. The terms and conditions set forth on Exhibit B


4


attached hereto are hereby made a part of this Agreement.


IN WITNESS WHEREOF, the Parties hereto, each acting under due and proper authority, have executed this Agreement as of the date first written above.


AMERICA ONLINE, INC. CONSULTANT


By: /s/ JAMES P. BARKOFF By: /s/ OSVALDO BANOS
------------------------- ------------------------------------


Print Name: JAMES P. BARKOFF Print Name: OSVALDO BANOS
----------------- -----------------------------


Title: EVP, PROGRAMMING Title: EXECUTIVE VICE PRESIDENT AND
---------------------- CHIEF FINANCIAL OFFICER
---------------------------------


Date: 2/28/03 Date: FEBRUARY 28, 2003
----------------------- ----------------------------------


EIN or SSN:
---------------------


5


EXHIBIT A


SCHEDULE NO. 1 DATED FEBRUARY 22, 2003 TO
AGREEMENT FOR CONSULTING SERVICES
BETWEEN
AMERICA ONLINE, INC. AND AMERICA ONLINE LATIN AMERICA, INC.
DATED AS OF FEBRUARY 22, 2003 (THE "AGREEMENT")


SCOPE OF WORK


1. Detailed description of services to be rendered by Consultant:


GENERAL. Consultant shall program AOL's multi-topic Content and
services interactive area for the US Hispanic audience currently
available at AOL Keyword: Latino on the America Online(R) brand
proprietary service (the "AOL Latino") under the direction of
AOL-designated personnel ("AOL Managers") in the manner set forth in
this Schedule 1.


Hosting: AOL Latino shall be hosted by AOL and all costs associated
therewith born by AOL.


CONTENT. Consultant will provide access until December 31, 2003 to
EFE's news services in English and Spanish and content feeds in Spanish
and English targeted specifically to Hispanics in the United States
(the "EFE Content"). Consultant will use commercially reasonable
efforts to secure access to the EFE Content from January 1, 2004
through February 21, 2004 (the "Extension Period"). In the event
Consultant is unable to secure access to the EFE Content on similar
material terms as provided for in its existing agreement with EFE,
Consultant shall notify AOL thereof. If the EFE Content can be secured
at an increased price (i.e., increase over current price), AOL shall
have the option of paying the increase in the price and Consultant
shall enter into the agreement with EFE for the Extension Period. If
AOL chooses not to exercise such option (or if the EFE Content can only
be secured on worse material non-price terms), Consultant shall be
relieved of its obligation to provide access to the EFE Content. If
Consultant does not secure access to the EFE Content for the Extension
Period, the fee payable to Consultant by AOL for the Extension Period
shall be reduced by the amount of thirteen thousand two hundred
ninety-two dollars ($13,292).


To the extent any links are established by the Programmers between AOL
Latino and any interactive site of Consultant or its Subsidiaries
("AOLA Website") and any Content within an AOLA Website is used by the
Programmers within AOL Latino in connection with such links, in each
case as determined by Consultant (AOL may suggest such links but the
final determination whether to link shall be made by Consultant in its
sole discretion), Consultant hereby grants AOL a worldwide license for
so long as such links are maintained to distribute, display, and
promote such AOLA Websites and Content through AOL Latino.


STAFFING. Consultant shall be responsible for, and shall provide the
personnel (the "Programmers") to perform, the programming functions set
forth in Attachment 1 ("Programming Functions"). The Parties shall
agree on the initial staff and AOL will have the right to approve or
disapprove reasonably any additions to such staff, including without
limitation, temporary staff to replace staff members on extended leave
(i.e., greater than one week). AOL shall respond promptly to any staff
approval request made by Consultant. The Programmers shall be employees


6


of Consultant and Consultant will manage all human relations aspects of
such relationships. In the event any of the Programmers take an
extended leave (e.g., greater than one week), Consultant shall replace
such Programmer. The Programmers shall report to, follow the direction
of the Consultant Project Manager, who shall take direction from the
AOL Manager in all programming matters and in the performance of all
Programming Functions. The Consultant shall ensure that the Programmers
follow the programming requirements set forth in Attachment 2
("Programming Requirements"). Any material failure to follow the
Programming Requirements shall constitute a material breach of
contract.


2. Deliverables and documentation to be produced by Consultant:


2A: Programming in compliance with this Schedule 1


3. Time for Performance/Delivery


3A: Ongoing


4. Acceptance testing criteria for each Deliverable:


Applicable as described below _____ Not Applicable __x___


5. Payments:


(a) FEE. AOL shall pay Consultant sixty-two thousand five hundred dollars ($62,500) per month in arrears.


(b) EXPENSES


Consultant shall not be entitled to the reimbursement of any expenses; except as follows: in the event travel and training expenses exceed eighteen thousand dollars ($18,000), AOL shall reimburse such expenses so long as (i) all travel and training expenses are pre-approved by AOL (even those which do not exceed $18,000), (ii) such expenses shall be limited to reasonable out-of-pocket expenses necessarily and actually incurred by the Consultant in the performance of its services hereunder, (iii) the expenses have been detailed on a form reasonably acceptable to AOL and submitted to the appropriate AOL Project Manager for review and approval; and (iv) if requested by AOL, the Consultant submits supporting documentation (e.g., receipts, invoices) in addition to the approved expense form. Any travel expenses shall comply with AOL's travel policy, a copy of which has been provided to Consultant, and AOL may, at AOL's sole discretion, require Consultant to make travel arrangements through an AOL-approved travel agency. AOL shall not be obligated to reimburse more than one hundred thousand dollars ($100,000) in such expenses.


(c) PAYMENT SCHEDULE


All fees and expenses due shall be invoiced by Consultant in arrears:


[X] Monthly
[ ] Upon Completion
[ ] Other (describe: ________________________)
[ ] Progress Payments as follows:


(d) MAXIMUM DOLLAR AMOUNT


The maximum dollar amount payable to Consultant for all fees and expenses under this Schedule: eight hundred fifty thousand dollars ($850,000) plus up to three million dollars ($3,000,000) in revenue share under Paragraph 9 of this Schedule 1.


7


6. CONSULTANT PROJECT MANAGER: Name: Rebeca Romero
Fax #: 954-233-1803
Phone #: 954-689-3105
E-mail: RBKRomero@aol.com


7. AOL PROJECT MANAGER: Name: Holly Hightower
Fax #: 703-265-3910
Phone #: 703-265-3703
E-Mail: HOLLYHIGHTOWER@AOL.COM


AOL will notify Consultant of any change in AOL Project Manager


8. TERM OF THIS SCHEDULE: February 22, 2003-February 21, 2004


9. ADDITIONAL TERMS AND CONDITIONS:


ADVERTISING. AOL shall have the exclusive right to license or sell
advertisements, promotions, links, pointers and similar services or
rights on AOL Latino ("AOL Advertisements") and to retain one hundred
percent (100%) of all Advertising Revenues derived therefrom other than
the revenue share due to Consultant as set forth below. Consultant
shall be entitled to a revenue share on all Advertising Revenues as
follows:


A.
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