Exhibit 10.5


 


Consulting Agreement 


 


This Agreement is entered into as of the date signed by the last Party
by and between North Electric Company, Inc. (“NECI”) having its principal
office at 6131 Falls of Neuse Road, Suite 205, Raleigh, North Carolina 27609 (the “Contracted Party”), and Time
Warner Cable Raleigh Division having its principal office at 101 Innovation
Avenue, Suite 100, Morrisville, North Carolina 27560 (“TWC-RD”).


 


WHEREAS, TWC-RD desires to engage the services of the Contracted Party
and the Contracted Party is willing to render services to TWC-RD upon the terms
and conditions herein set forth.


 


NOW, THEREFORE, in consideration of the mutual promises set forth
herein, and with the intent to be legally bound, the Parties hereto agree as
follows:


 


1.                                       During the term
of this Agreement, as set forth in Article 5, the Contracted Party shall
hold themselves available to perform and shall perform for TWC-RD such services
as TWC-RD may designate. The Contracted Party shall perform such services at such
time and such places designated by TWC-RD. The services shall be performed in a
professional, diligent and timely manner, with the results subject to TWC-RD’s
acceptance and approval, which shall not be unreasonably withheld. The
Contracted Party represents and warrants that they are capable of performing
the Services in a professional, diligent and timely manner and is not subject
to any prior obligation or restrictions that would impair or restrict
performance of the Services.


 


(a) Hours and tasks are defined by Mark Eagle, Director of Project
Engineering, TWC-RD.


 


(b) Project is “Consulting work for TWC-RD on the Nortel CS2000
Project”.


 


(c) There is no set number of hours (minimum or maximum) but what is
agreed upon as necessary to support the Project.


 


2.                                       Compensation.
In consideration of the Contracted Party’s performance of the services
designated by TWC-RD, TWC-RD shall compensate the Contracted Party at the rate
of One Hundred Twenty-Five dollars ($125.00) per hour.


 


3.                                       Expenses
TWC-RD shall reimburse the Contracted Party for direct out-of-pocket expenses
of the Contracted Party actually and reasonably incurred in connection with the
performance of the Contracted Party’s obligations under this Agreement insofar
as such expenses relate to travel expenses, duplication, long distance
telephone charges, and other expenses. 
All such direct out-of-pocket expenses must be approved in advance by
TWC-RD. Incurred out-of-pocket expenses must be submitted to TWC-RD with a
verifiable receipt for each expense.


 


4.                                       Records,
Reports and Invoices. 


 


(a) The Contracted Party shall maintain full and complete books and
records documenting all services rendered and the results thereof, expenses and
other data, which shall be available for inspection and copying by TWC-RD
through its agents or representatives during normal working hours during and
after completion of the Services.


 


(b) The Contracted Party shall submit reports to TWC-RD during the term
of this Agreement, specifying in reasonable detail the nature and extent of the
services performed by the Contracted Party and the amount of expenses incurred
by the Contracted Party which are subject to reimbursement by TWC-RD in
accordance with Article 3.


 


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(c) The Contracted Party shall invoice TWC-RD for all incurred billable
hours and out-of-pocket expenses approved monthly at the end of each month
beginning July 2004.


 


(d) TWC-RD shall remit payment of the monthly invoice within 15 days
after receipt of such invoice.


 


5.                                       Term of
Agreement. This Agreement shall have an indefinite term beginning Monday,
July 19, 2004 and continuing until termination of this agreement according
to Article 6.


 


6.                                       Termination and Actions Thereafter. 


 


(a)  This Agreement may be
terminated by TWC-RD by written notice to the Contracted Party at any time upon
a breach by the Contracted Party of any of the provisions of this Agreement.


 


(b) Either Party may, at any time and with or without cause, terminate
this Agreement upon written notice to the other Party given seven (7) days
prior to such termination. The last day of such seven (7) day period shall be
deemed the effective date of termination for all purposes hereunder.


 


(c) Upon termination of this Agreement pursuant to this Article 6,
the Contracted Party shall promptly submit to TWC-RD an invoice covering all
unbilled compensation and expenses to date, together with an estimate of the
compensation and expenses that would be chargeable to TWC-RD if any particular
services for work then in progress were to be completed by the Contracted
Party.  Upon request by TWC-RD (but not
otherwise) the Contracted Party shall complete such work in progress as TWC-RD
shall designate, and this Agreement shall in such case be deemed extended until
such work is completed and paid for. Immediately following the termination of
this Agreement, the Contracted Party shall transfer and deliver to TWC-RD all
of the Work Product resulting from or related to services performed under this
Agreement, including all Work Product in progress not required to be completed
as aforesaid. TWC-RD shall pay the Contracted Party for any services performed
to and including the date of termination in accordance with the provisions for
compensation set forth in Article 2. “Work Product” shall include, e.g.,
works of authorship,  notes,
descriptions, analyses, impressions, conclusions, concepts, projections and
other matter resulting from or related to the Services and shall include
documents, items and recording in any media and all media used by the
Contracting Party in the course of performing the Services.


 


7.                                       Independent Status. 


 


(a) The relationship of the Contracted Party to TWC-RD hereunder shall
be that of an independent contractor. Nothing in this Agreement is intended or
shall be construed to constitute the Contracted Party as an employee, agent or
partner of TWC-RD nor shall the Contracted Party have authority to bind TWC-RD
in any respect. TWC-RD shall not be liable for any act or omission of the
Contracted Party or their employees or agents, and the Contracted Party agrees
to indemnify and hold harmless TWC-RD from any and all claims and awards of
losses, damages, costs, and expenses (including attorneys’ fees) in any manner
resulting from or arising out of any such act or omission or any breach of the
Contracted Party’s obligations under this Agreement or any obligations to third
parties.


 


(b) Nothing in this Agreement shall be construed to prevent the
Contracted Party from concurrently providing services to persons other than
TWC-RD.


 


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8.                                       Restrictive
Covenants, 


 


(a) Except as authorized or directed by TWC-RD, the Contracted Party
shall not at any time, during or subsequent to their engagement outlined in
this Agreement, directly or indirectly publish or disclose any confidential
information of TWC-RD or confidential information of others which has come into
TWC-RD’s possession or into Contracted Party’s possession in the course of
Contracted Party’s engagement by TWC-RD, to any person, firm, company or other
entity, and the Contracted Party shall not use any such confidential
information for Contracted Party’s own personal or commercial use or advantage
or make it available to others for use. All information, whether written, oral,
or in machine-readable form, regarding TWC-RD’s business or activities,
including but not limited to that relating to existing and contemplated
computer hardware and software, products, formulas, compositions, machines,
apparatus, systems, processes, methods, manufacturing procedures, research and
developed programs, inventions, discoveries, business arrangements of sources
of supply, or any other information acquired during the Contracted Party’s
engagement by TWC-RD shall be presumed to be confidential except to the extent
the same shall have been lawfully and without breach of any confidentiality
obligation made available to the general public by TWC-RD without restriction.


 


(b)
During this Agreement and for a period of two (2) years thereafter, unless
authorized by TWC-RD in writing, the Contracted Party shall refrain from using
any non-confidential know-how, obtained from TWC-RD or during the course of the
Services, for the purpose of undertaking or assisting in activities, or
training or assisting in training, personally or indirectly any other person or
entity, with respect to TWC-RD’s software, equipment, systems or services. All
obligations regarding confidentiality and non-use of other information shall
survive in accordance with this Agreement.


 


(c) All computer hardware, software, source code, object code, magnetic
tapes, printouts, samples and records, reports, documents, customer lists,
photographs, catalogs and other writings, whether copyrightable or not,
relating to or dealing with TWC-RD’s business, activities, and plans, and those
of  others entrusted to TWC-RD,
which are prepared or created by the Contracted Party or which may come into
the Contracted Party’s possession during or as a result of  his/its engagement under this Agreement, are
the property of TWC-RD, and upon termination oftheir engagement the
Contracted Party shall return all such computer hardware, software, source
code, object code, magnetic tapes, printouts, samples, records, reports,
documents, customer lists, photographs, catalogs and writings, and all copies
thereof to TWC-RD.


 


(d) The covenants on the part of  the
Contracted Party under this Article 8 shall survive termination of  this Agreement and shall be construed as
an agreement independent of  any
other provision of this Agreement, and the existence of  any claim or cause of action of  the Contracted Party against TWC-RD,
whether predicated on this Agreement, or otherwise, shall not constitute a
defense to the enforcement by TWC-RD of such covenants. The Contracted Party
agrees that a remedy at law for any breach ofthe foregoing covenants would be inadequate and that TWC-RD shall be
entitled to a temporary and permanent injunction for specific performance of  such covenants without the necessity of
proving actual damage to TWC-RD.


 


9.                                       Notices.  All notices provided for
hereunder shall be mailed or e-mailed as follows:


 


If
to TWC-RD:


Time
Warner Cable


101
Innovation Avenue, Suite 100


 


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Morrisville,
North Carolina 27560


Attention:  Mark Eagle


Email:  mark.eagle@twcable.com


 


If to the Contracted Party:


North
Electric Company, Inc.


6131
Falls of Neuse Road, Suite 205


Raleigh,
North Carolina  27609


Attention:  Dan Ference


Email:  dan.ference@northelectriccompany.com


 


Each notice, which shall be mailed or transmitted in the manner
described above, shall be deemed sufficiently given, served, sent, or received
for all purposes at such time as it is delivered to or received by the
addressee.


 


10.                                 Changes.  No modification, amendment, or waiver of any
provision of this Agreement shall be effective unless reduced to writing and
signed by both parties. TWC-RD’s failure at any time to enforce any of the
provisions of this Agreement shall in no way be construed as a waiver of any
such provision or a course of dealing and shall not affect the right of TWC-RD
thereafter to enforce any such provision in accordance with its terms.


 


11.                                 Applicable Law and
Arbitration. This Agreement and the rights and obligations of the Parties
hereunder, and any controversy or claims arising out of, or relating to, this
Agreement, the breach thereof, its subject
matter(s), or with respect to any of the documents executed in conjunction
herewith, shall be construed, interpreted, resolved, remedied, and enforced in
accordance with, and governed by, the laws of the State of North Carolina
applicable to acts, omissions and obligations performed solely therein and
without reference to conflict of laws principles. Any controversy or claims
arising out of, or relating to, this Agreement, the breach thereof, its subject
matter(s), or with respect to any of the documents executed in conjunction
herewith, shall be settled by arbitration in the metropolitan area of Raleigh,
NC, in accordance with the rules then obtaining of the American Arbitration
Association, and judgment upon the award rendered may be entered in any court
having jurisdiction thereof. Notwithstanding the foregoing, should TWC-RD
determine that a breach or threatened breach of Article 8 of this Agreement
has occurred, then, at the sole option of TWC-RD, TWC-RD may elect to pursue
the remedies provided in paragraph 8(d) in lieu of the arbitration provisions
of this Article 11.


 


12.                                 Entire Agreement   This Agreement constitutes the entire
agreement between the Parties with respect to the subject matter of this
Agreement, and this Agreement supersedes all prior understandings and
agreements with respect to the matters provided for herein except that the
Parties pre-agreement implied or express obligations of confidentiality shall
remain enforceable and are described in and covered by the confidentiality
terms herein.


 


13.                                 Interpretation.  Both Parties have fully considered the
language, terms and provisions of this Agreement and both Parties expressly
agree that ambiguities, if any, shall not be construed against the drafter, but
shall be resolved in a fair manner without unequal prejudice to any of the
Parties.


 


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The Article headings in this Agreement are for convenience of
reference only and do not form a part of or govern construction of any part
hereof.


 


14.                                 Severability.  If any provision(s) of this Agreement shall
be deemed unenforceable in a determination by a body with proper jurisdiction,
the Parties agree (without waiving rights of appeal) that the unenforceable
provision(s) shall be: (1) reconstituted to approximate as closely as lawfully
possible the evident intent of the Parties; or (2) if option (1), above, cannot
be implemented, the unenforceable provision(s) shall be excised from the
Agreement and the Parties shall negotiate in good faith with respect to
modification of the Agreement. If the Parties cannot agree to a modification,
the Agreement shall be enforced without the unenforceable provision in a fair
manner and without undue prejudice to either Party.


 


IN WITNESS WHEREOF, TWC-RD
and Contracted Party has executed this Agreement as of the date signed below. .


 


	
  Time Warner Cable

  	
  North Electric Company, Inc.

  
	
   

  	
   

  
	
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  Name:

  	
   

  	
   

  	
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  Title:

  	
   

  	
   

  	
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  Date:

  	
   

  	
   

  	
  Date:

  	
   

  	
   

  
											



 


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