Message-ID: <18640054.1075845991774.JavaMail.evans@thyme> Date: Wed, 7 Mar 2001 06:43:00 -0800 (PST) From: kay.mann@enron.com To: carlos.sole@enron.com Subject: Re: Trinity Consulting Agreement Cc: kathleen.carnahan@enron.com Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii Content-Transfer-Encoding: 7bit Bcc: kathleen.carnahan@enron.com X-From: Kay Mann X-To: Carlos Sole X-cc: Kathleen Carnahan X-bcc: X-Folder: \Kay_Mann_June2001_3\Notes Folders\Sent X-Origin: MANN-K X-FileName: kmann.nsf Aren't you something. From now on, you are Mr. PSA. ---------------------- Forwarded by Kay Mann/Corp/Enron on 03/07/2001 02:42 PM --------------------------- Scott Churbock 03/07/2001 02:42 PM To: Carlos Sole/NA/Enron@Enron cc: Kay Mann/Corp/Enron@Enron Subject: Re: Trinity Consulting Agreement Carlos, Thanks for the prompt and diligent effort---good work! I will forward this to Trininty and we'll go from there. Scott From: Carlos Sole on 03/07/2001 12:36 PM To: Scott Churbock/NA/Enron@ENRON cc: Subject: Trinity Consulting Agreement Scott, for your review and comment, attached is a revised version of the Trinity Consulting Agreement that I have modified so that it more closely resembles our standard form of consulting agreement. Also, please note that our accounting group has also blessed this agreement. As a summary, the substantive changes that I made are as follows: - Article 1 now more specifically describes the standards by which Trinity will perform its services (these changes should be a non-issue) - Article 3 now imposes certain conflict of interest obligations on Trinity. 3.1 obligates them to represent and warrant that their entry into an agreement with us will not breach any other obligations that would otherwise have to other parties. 3.3 imposes the obligation on them to obtain our prior consent before they perform any work for any third party or government agency that would have "an adverse effect" on us (this is direct change from their form which had no such obligation but which is standard in our consulting agreements and is a reasonable request.) - Article 4 adds our standard language that Contractor is an independent contractor and not entitled to any of our employment benefits. - Article 5, inserted a 2 year term. - Article 6 inserted that payments are within 30 days and that reimbursements must be in advance. Please note that since I cannot edit the Price Schedule, then conforming changes to it need to be made, including whether to strike the 18% interest charge for late payments and whether to accept the 15% out-of-pocket surcharge (neither of which is in our standard agreement). I also inserted your name for invoices. - Article 7 added a termination event that the breach of the conflict of interest or confidentiality obligations is an immediate event of termination. - Article 8, inserted your name for notices with a copy to me in the legal department. - Article 9, I revised the liability limitation to make it reciprocal and excluded from the liability limitation, damages that would arise from Trinity's breaches of Section 3.1 (that entering into this agreement will not breach any other agreements that they have), Article 10 (indemnification for personal injury or death claims attributable to them), Section 12.2 (not providing us with information that violates someone else's intellectual property rights) and Section 13 (non-disclosure / confidentiality obligations). Note that although accepting a liability limitation is not standard per our agreements, by making the foregoing exceptions, the liability limitation that we are effectively agreeing to is only with respect to any "malpractice" claims that we would have against them if their work was not up to industry standards. - Article 10, this is an indemnification provision which obligates them to indemnify us for personal injury or death claims attributable to them. - Article 11, states that the ownership of work product developed will be ours and that they will not provide us with any information etc. that they do not have the intellectual property rights ownership of. - Section 13.4 are certain procedures to be observed in the event that a court requires the production of confidential information (the text is standard boilerplate.) - Article 14 states that they have all liceneses to perform the work and to the extent that any are needed they will obtain them at their own cost and expense. - Article 15 is our standard boilerplate. - Formerly Article 12 on Non-Solicitation of Employees - per our discussion this has been struck - Section 17.1 now imposes venue in Harris County, Texas not Dallas County. - Section 17.2 allows us to assign the agreement to any of our affiliates without their consent but subject to notifying them of the assignment - Section 17.8 requires our consent before they use Enron's name in any advertising - Exhibit A terms and conditions have all been struck since those duplicated what was in the Master Agreement. Please call me with any questions that you may have or let me know how I can be of further assistance. Clean Copy Blackline Comparison