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This E-BusinesslEnterprise Services Agreement
(hereinafter "Agreement") is entered into as of this
10th day of AmiL 2002 by and between Idea
Integration Corp. (hereinafter "Company"), and ~
of Miami Beach (hereinafter "Client").
1. Scone of Services: Chan2e Orders.
a) Company shall provide to Client services of
the type and at the locations and pricing as agreed to
and incorporated herein in writing, signed by duly
authorized officials of the parties and attached hereto
as the Statement(s) of Work The terms of this
Agreement shall prevail over and govern to the extent
of any conflicting or inconsistent terms or conditions
in any Statement of Work or other writing or
arrangement between the parties unless such
Statement of Work or other written arrangement
specifically refers to the particular provision of this
Agreement which it supersedes.
b) The Client may request a change in services
or Deliverables by submitting to Company a formal
change..roer reasonably detailing the scope of such
change. The form of the change order shall be
substantially in the form of Exhibit A hereto.
Company shall evaluate each change requested by
Client and shall provide Client with an impact
assessment which shall address all relevant factors,
including, without limitation. the necessity for a
change in price or delivery schedules or any other
terms and conditions of this Agreement or any
Statement of Work. If Client agrees to make such
changes in the Agreement or such Statement of Work,
Company shall use reasonable efforts to effect the
changes. All correspondence regarding changes shall
be in writing. All approved change order requests
sball be in writing and shall be considered as
amendments to this Agreement or the applicable
Statement of Work.
2. Term.
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E-BUSINESSIENTERPRISE
SERVICES AGREEMENT
This Agreement shaI1 continue in effect for an initial
term of one (1) year and shall continue thereafter for
successive renewal periods of one (1) year each,
unless or until either party provides written notice of
intent to terminate this Agreement at least sixty (60)
days in advance of any such renewal period. Either
party may terminate this Agreement on ten (10) days
advance written notice of a material breach by the
other party that is not substantially cured by that party
within thirty (30) days of receipt of such notice;
provided, however that if such material breach is not
of a nature that is capable of cure within such time, if
the breaching party has commenced diligent, good
faith efforts to cure such breach innnediately after
receipt of notice of such breach and continues to
pursue such cure continuously, the cure period shaI1
be extended to sixty (60) days. There shall be no such
extension for payment defaults.
3. Pavment and Iavoicin2.
Company will invoice Client regularly according to
the terms of the attached Statement(s) of Work.
Unless otherwise stated in an attached Statement of
Work, Client will reimburse Company for all travel
expenses, including a reasonable per diem for
traveling consultants, related to performing on-site
services for the Client. Client shall pay invoices upon
receipt and shaI1 be considered in default sixty (60)
days from issuance of Company invoice, after which
time a default charge will be imposed at one and one-
half percent (1 Yz%) per month on unpaid balances
(annual percentage rate of eighteen percent (18%)) or . ~
the maximum legal interest rate, whichever is lower. ~n e"
CIi_ ... 18 pay all 1lCCCSsm, eoLlivu costs M ~
BJ"'Q'l"k past due, in.ell.o~ .~ attomey's ..
... ~ . L~ts.. Company reserves the right, at its option. ~ c..
to discontinue any extension of credit at any time if 1- ~
b~ ~ot timely paid. Client ~~~~ a s...~ ~
t't'1I"4i:g corporation under Jim~ )(3) of ~1,,;Q~
the hd.\;.J..Iiii lli,y\tUu", Q.4; uf da, U~t.W S1ates, 89
~ ~ ...r applieehle Ill",! of ~ SI3tc. tIE
Horida. The State of Florida tax-exempt number for
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Client is . Company shall take
reasonable action to cause the provision of the
services hereunder to be treated as a tax-exempt
transaction. Based on Client's tax-exempt
representation, Client shall not be responsible for any
sales, use, property~ gross receipts, or similar taxes
levied against any party to this Agreement. Upon
request, Client shall provide Company with
certificates evidencing its tax-exempt status.
4. ReIatioDlhio of Parties: Client ResooBlibilities.
a) The parties agree that the relationship
between them is that of independent contractor and
that neither party shall have any authority to represent
or bind the other and that neither party shall hold itself
out or have any authority as an agent of the other for
any purpose whatsoever. Nothing herein shall be
construed as creating a principal and agent, joint
venture, or any other type of relationship besides
independent contractor between Client and CODlp$ly.
b) Company and Client shall each remain solely
responsible for the payment of all wages and benefits
for each of their own respective employees, and
neither party shall be responsible for the withholding
or payment of any payroll deductions or taxes, or the
provision of workers' compensation or unemployment
insurance coverage, for or on behalf of employees of
the other party or for any payment or expense in
respect of claims arising under the other party's
employee benefit plans. As between Company and
Client, Company shall remain specifically responsible
for any applicable federal, state or local withholding
or income taxes, paying Social Security taxes, and
providing unemployment compensation and workers'
compensation insurance or coverage for its employees
and contractors providing services in accordance with
this Agreement or any Statement of Work.
c) Client acknowledges and agrees that it must
provide reasonable cooperation, including access to
facilities and computer systems as well as availability
of knowledgeable personnel, in order for Company to
be able to perform the Services hereunder in a timely
and professional manner. If a Statement of Work
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specifies that Services are to be performed on a fixed
price basis, Client agrees that it shall be responsible
for any increase in cost or expense incurred by
Company caused by a Client delay. A "Client delay"
is any delay in the ability of Company to complete a
Deliverable caused by Client or third party under
contract with Client. Company shall promptly notify
Client of a Client delay. Notwithstanding the
provisions of Section 2 concerning cure periods or
Section 12 concerning Force Majeure conditions, if
Client does not remedy the Client delay within two (2)
business days, then Company may (i) perform such
services as Company may reasonably perform to
remedy the Client delay and shall charge Client for
such services at Company's standard time and
material rates, or (ii) stop work under the Statement of
Work, reassign personnel and bill Client for the
Services performed to such date at an amount
calculated as a percentage of the fixed rate equal to
the perca:ttage of the Services completed to such date.
d) Company agrees not to .mitrarily remove any
resource who is acceptable to Client during the time
period for which such individual is contracted
hereunder. In the event any resource is removed
without Client's approval before termination of the
Statement of Work, Company shall use commercially
reasonable efforts to supply an acceptable
replacement to Client as soon as possible
Company agrees to provide, at a minimum, personnel
possessing equivalent skill level to the personnel
originally staffed on the initial engagement as
reasonably appropriate in the interest of efficiency and
continuity of resources. Any additional expense
incurred in transitioning the new personnel shall be
charged to the Company.
5. NOD-Bin CoV--&
a) Both parties agree, during the'1am of this
Agreement and for one (1) year thereafter, both
parties shall refrain from soliciting, hiring, diverting
or accepting services or work from any person who at
any time provided services through or on behalf of
either party, except where the parties have otherwise
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agreed in writing.
6. Warranties.
a) Company warrants and represents that for a
period of six (6) months after acceptance by Client,
the software developed by Company hereunder
("Software") shall be free from significant
programming errors and from defects in workmanship
and materials and shall operate and conform to the
performance capabilities, specifications, functions and
other descriptions in the Requirements document
agreed upon by Client and Company and that, in
general, the Services shall be performed in a timely,
professional and workmanlike manner by qualified
professional personnel; and that the Services and
Software shall conform to the standards generally
observed in the industry for similar Services and
Software. In the event the Software does not conform
to the specifications, Company shall, within thirty
(30) days of notice from Client, without additional
cost to Client, restore such Software to conformity or
prepare a plan to do so which is acceptable to Client.
Notwithstanding the foregoing, Company has no
obligation to make corrections, repairs or
replacements to the extent required as a result of (i)
catastrophe, fault or negligence of Client,
(ii) improper or unauthorized use of the Software by
Client, (iii) use of the Software in a manner for which
it was not designed, including, without limitation, use
of the Software in connection with computer hardware
or other software than as specified in the related
Statement of Work, (iv) modifications of the Software
by anyone other than Company or its employees,
agents, or parties approved by Company, (v) causes
external to the Software and beyond Company's
control such as, but not limited to, power failure or
electric power surges, or (vi) errors caused by third
party vendor deliverables.
b) Client warrants that any workplaces owned,
leased or supervised by Client and to which Company
employees or contractors are assigned shall be
maintained free from any unreasonable hazards or
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defects and that Client will make available any safety
equipment, training or materials provided to Client's
own employees and contractors.
c) Client shall promptly notify Company of a
breach of the warranty stated above, and Company
shall promptly investigate the matter, and if
substantial evidence of a breach appears, then
Company shall in its sole discretion either (i) remedy
the defect complained of until the performance meets
the warranty standard stated above, and/or (ii) refund
or credit to client the fees attributable to the extent of
the defective services. This provision states
Company's sole liability for breach of the warranty
stated in section a) above.
d) COMPANY EXCLUDES AND
DISCLAIMS ALL OTHER WARRANTIES
WHATSOEVER NOT SPECIFICALLY STATED
ABOVE, WHETHER EXPRESS, IMPLIED OR
STATUTORY, INCLUDING ANY WARRANTY
OF NONINFRlNGEMENT, MERCHANTABILITY
OR FITNESS FOR PARTICULAR PURPOSE.
e) NEITHER PARTY SHALL BE LIABLE TO
THE OTHER WHATSOEVER FOR ANY
SPECIAL, CONSEQUENTIAL, INDIRECT,
EXEMPLARY OR PUNITIVE DAMAGES,
INCLUDING ANY DAMAGES ON ACCOUNT OF
LOST PROFITS, LOST DATA, LOSS OF USE OF
DATA, OR LOST OPPORTUNITY, WHETHER
OR NOT PLACED ON NOTICE OF ANY SUCH ~v "-
ALLEGED DAMAGES AND REGARDLESS OF~ 1'~~
THE FORM OF ACTION IN t-;fI- NJ
DAMAGES MAY BE . IN NO EVENT +~\
SHALL BE LIABLE TO CIJerr f~lAe~
HEREUNDER FOR ANY DAMAGES IN EXCESS ~
OF THE FEES ACTUALLY PAID TO COMPANY ~
BY CLIENT DURING THE IMMEDIATELY
PRECEDING TWELVE (12) MONTH PERIOD
UNDER THE STATEMENT OF WORK UNDER
WInCH THE DAMAGES AROSE. THE FEES
AND BILLINGS DUE UNDER TIllS
AGREEMENT ARE NOT CONSIDERED
SPECIAL DAMAGES OR LOST PROFITS AND
SHALL NOT BE LIMITED BY THESE
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PROVISIONS.
7. ComDIiance witIa Laws.
a) The parties agree that they each will comply
with all applicable federal, state or local laws and
ordinances and that neither of them will discriminate
against any employees or contractors of the other on
the basis of race, color, religion, national origin, sex,
age, disability, status as a disabled veteran or veteran
of the Vietnam Era, or any other basis prohibited by
law.
b) Client agrees that it shall comply with all U.S.
laws, rules and regulations governing the export of
information technologies and shall not permit the
export or ~port of information technologies in
violation of any such provisions.
C) TIllS AGREEMENT WILL NOT BE
GOVERNED OR INTERPRETED IN ANY WAY
BY REFERRING TO ANY LAW BASED ON THE
UNIFORM COMPUTER INFORMATION
TRANSACTION ACT (UCITA), EVEN IF SUCH
LAW IS ADOPTED BY ANY STATE.
8. IDSoranee.
Company shall maintain insurance coverage as
follows:
a) Workers' Compensation insurance, for
employees of Company, that meets or exceeds the
statutory limits of the state(s) in which the services
will be performed.
b) Comprehensive General Liability insurance,
with limits of at least One Million Dollars
($1,000,000) combined single limit for bodily injury,
personal injury and property damage for each
occurrence.
c) Commercial Blanket Bond with limits of at
least One Million Dollars ($1,000,000) for each
occurrence.
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d) Employer's Liability insurance of at least
Five Hundred Thousand Dollars ($500,000) per
employee of Company.
e) Errors and Omissions Liability insurance in
an amount of not less than One Million Dollars
($1,000,000) for each occurrence.
f) A combination of prinuuy and
excess/umbrella liability policies will be acceptable as
a means to meet the limits specifically required herein.
Company shall provide the Client with written
evidence of the existence and maintenance of such
insurance policies upon Client's request. If any of
such insurance policies are to be modified or canceled
during the term of this Agreement in a way which
would materially reduce the coverage required
hereunder, Company shall provide written notice to
the Client at least thirty (30) days prior to such
modification or cancellation.
9. IndeJDDification.
a) Company will indemnify, defend and hold
harmless Client from and against all claims, demands,
suits and expenses (including reasonable attorneys'
fees) brought by any person or party for damage to
tangible personal property and bodily injury (including
death) arising from the negligent or illegal act or
omission of Company or any of its employees and
contractors in the performance of services hereunder,
except to the extent of the negligent or illegal act or
omission of Client or its employees and contractors.
b) Company shall also, at its expense, defend or
settle any claim, action or allegation brought against
Client that any Deliverable (as defined below)
infringes any U.s. intellectual property right of any
third party and shall pay any final judgments awarded
or settlements entered into; provided that Client
promptly notifies Company of any such claim, allows
Company to control the defense of any actions arising
out of any such claim and reasonably cooperates with
Company in such defense. Notwithstanding the
foregoing, Company shall not be responsible for or
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liable to Client for any in&ingement of a third party's
intellectual or other property right arising out of: (i)
Client's use of a Deliverable to perform any particular
function if such use infringes a third party's U.S.
patent separate from the method or means of
Company's delivery of the Deliverable; (ii) Client's
use of any third party software or equipment, (ill)
modifications, enhancements or alterations of
Deliv~bles not performed or approved in writing by
Company; or (iv) Company's adherence to Client's
specific instructions. Company makes no warranty
whatsoeva" concerning, and shall bear no liability
related to, any third party software, firmware,
middleware, hardware or documentation.
c) In the event any such inftingement, claim,
action or allegation is brought or threatened, Company
may, at its sole option and expense: (i) procure for
Client the right to continue use of the Deliverable or
infringing part thereof; or (ii) modify or amend the
Deliverable or infringing part thereof, or replace the
Deliverable or infringing part thereof with other
software having substantially the same or better
capabilities; or (ill) if neither of the foregoing is
commercially practicable, Company may terminate
this Agreement with respect to the infringing part of
the Deliverable and refund the monies paid by Client
for the infringing part less any reasonable amount for
use or damage. Company will then be released from
any further obligation whatsoever to Client in
~ connection with the infringing part of the Deliverable.
~ d) Client will indemnify, defend old
harml Company from and against claims,
damages, its or expenses (inc . reasonable
attorneys' fl in connection ': (a) actual or
alleged viola' the tional Safety and
Health Act or any s' te law governing work
places owned, leased or . by Client and to
which Company ploy; or contractors are
assigned, except the extent 0 such violations
arising from pany's own neglig or illegal act
or omiss' and (b) any claims aris' out of the
ma described in subsection b)(i) (iv)
a
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10. NoCiees.
Any and all notices, requests, demands and
communications provided for by this Agreement shall
be in writing and shall be effective when delivered in
person or sent by facsimile with confirmation, and
upon receipt via reputable overnight courier or U.S.
Mail postage prepaid, with return receipt requested, as
follows:
To Company:
Idea Integration Corp.
Senior Vice Pres. & General Counsel
1 Indepeodent Dr, 25th Floor
Jacksonville, FL 32202
To Client:
City of Miami Beach
1700 Convention Center Dr. 4th Floor
Miami Beach, Florida 33139
David Dermer, Mayor
with a copy to: ~
RatrIA~MII"'~ -fl. P.,bbil\
City Attorney
1700 Convention Center Dr. 4th Floor
Miami Beach, Florida 33139
The parties may update or modify the addressees
above by providing written notice of such as provided
herein.
11. IllveDtiOIIs.
a) Upon the payment in full of all fees and
charges set forth in the applicable Statement of Work,
Client shall have ownership of the tangible materials,
computer programs and related documentation
produced by Company and specified in a Statement of
Work to be delivered to Client hereunder
("Deliverables"). Company also grants to Client a
non-exclusive, perpetual, fully-paid-up, royalty free,
worldwide license to use Company's intellectual
s
property contained within the Deliverables, and to
reproduce, modify, alter, revise, enhance, sublicense
and sell the Deliverables and any enhancements,
alterations and modifications thereto. Company shall
retain ownership and all rights to use and enjoyment
of the know-how, processes, and other intellectual
property, including but not limited to patentable or
copyrightable materials used in preparing, embedded
in. underlying or constituting a part of the
Deliverables: (i) developed, owned, licensed or
possessed by Company prior to the commencement of
services hereunder and/or (ii) developed by Company
in the course of creating the Deliverables hereunder.
b) Company shall not obtain any ownership or
use rights in Client information or other materials
furnished to Company hereunder by virtue of their
inclusion, in any form, in a Deliverable hereunder.
~lient shall not obtain any rights to third party
tntellectual property not specifically referenced in a
Statement of Work.
12. Foree Maieure.
Neither party shall be liable to the other party for any
delays, inability to perform or interruption of service
due to acts or events beyond such party's reasonable
control, including, without limitations, acts of God,
inclement weather, war, civil unrest, strikes, loss or
interruption of computer systems, telecommunications
breakdowns and transportation delays. In such ease,
the time for performance shall be excused and
extended by one (1) day for each day such condition
continues. If the condition continues for ten (10) days
within any fifteen (15) day period, then either party
may terminate this Agreement and the services
immediately, and any payment shall be due for
services rendered to date, including pro rata payment
to the date of termination for services rendered under a
fixed fee arrangement. Failure or lack of payment by
Client shall not be excused under this provision.
13. AatItoritv.
Each party represents and warrants to the other party
that it has all necessary power and authority to enter
into and perform this Agreement in accordance with
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the terms hereof.
14. AssiPnment.
Neither party shall assign any of its rights or
obligations under this Agreement without the prior
written consent of the other party, which consent shall
not unreasonably be withheld. The only exception is
~t this Agreement may unilaterally be assigned by
either party to an affiliate, successor or assign in a
change of corporate control that does not materially
affect the duties of the other party hereunder. This
Agreement is entered into solely for the benefit of the
parties hereto, and nothing in this Agreement whether
express or implied is intended to confer any rights or
remedies on any other person or party other than the
parties hereto and their respective successors and
assigns.
15. Waivers.
No waiver of any provision of this Agreement shall be
effective unless it is in writing, signed by the party
against whom it is asserted, and any such written
waiver shall only be applicable to the specific instance
to which it relates and shall not be deemed to be a
continuing or further waiver.
16. Severabilitv.
Each provision herein shall be separate and
independent from any other, and a breach of any
provision shall in no way or manner discharge or
relieve the performance of any other provision,
covenant or agreement.
17. Survival
The parties' obligations under this Agreement which
by their nature continue beyond termination,
canceUation or expiration of this Agreement, shall
survive termination, cancellation or expiration of this
Agreement.
18. B-.tinft..
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Caption and article headings contained in this
Agreement are for convenience and reference only and
in no way define, describe, extend or limit the scope or
intent of this Agreement nor the intent of any
\r" provision hereof.
~ 19. A~t~AM...
20. Governi.... Law.
This Agreement shall be governed by the laws of the
state where the services are performed.
21. Entire A2reemeot.
This Agreement and the attachments and exlnlJits
hereto represent the entire Agreement between the
parties and supersede any prior understandings or
Agreements whether written or oral between the
parties respecting the subject matter herein. This
Agreement may only be amended in a writing
specifically referencing this provision and executed by
both parties. This Agreement shall inure to the benefit
of and shall be binding upon the parties hereto and
their respective heirs, personal representatives,
successors and assigns, subject to the limitations
contained herein. The unenforceability, invalidity or
illegality of any provision of this Agreement shall not
render any other provision unenforceable and shall be
subject to reformation to the extent possible to best
express the original intent of the parties.
SS WHEREOF, the parties have hereunto set their hands with effect as of the date first above written.
~~~
N . ames Albert
Title: Senior Vice President
Date: _~. 2...(, . Q 2-
BEACH
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APPROVED AS TO
FORM I; LANGUAGE
I; FOR EXECUTION
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ExmBIT A
FORM OF CHANGE ORDER
This is Change Order No. _ to Statement of Work No. _ issued pursuant to that certain E-Business
Enterprise Services Agreement by and between Idea Integration Corp. ("Company") and City of Miami Beach
("Client") dated as of [Date of Agreement].
I. . Changes in Services or Deliverables.
[Identify the specific changes in the Services, Deliverables, time for completion, testing or acceptance criteria,
etc.]
II. Change in Fees or Charges.
[Identify the specific changes in the fees or charges arising out of the changes set forth in Section I above.]
IN WITNESS WHEREOF, the parties have executed this Change Order effective as of the [Day of Week] day of
[Month], [Year].
CITY OF MIAMI BEACH
By:
Name:
Title:
Date:
IDE~TJQN CORP.
By: Q,/, ~~
Name:~s 1;:>. ~~
Title: ~ -...- V; u ~ru.1 ~
Date: 4./'" "Z' ." z..
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