BOLDER HEURISTICS, INC.
GENERAL SERVICES AGREEMENT
This Agreement is effective as of this 25th day of December, 1996, and
is made by and between Bolder Heuristics, Inc. ("Company") of 0000 Xxxxxxx
Xxx. #000, Xxxxxxx, Xxxxxxxx 00000, and Newgen Results Corporation
("Customer") of 00000 Xxxx Xxxxx Xxxxx. Xxxxx 000, Xxx Xxxxx, Xxxxxxxxxx 00000
for the purpose of the provision of computer consulting and software
development services by the Company to the Customer.
1.0 GENERAL SERVICES
1.1 The Company shall, from time to time, as provided in Section 1.2,
provide Customer with professional computer consulting and software
development services ("Services").
1.2 Services shall be provided in accordance with a Statement of Work
("SOW") or in accordance with a Work Assignment ("Assignment"), or a Purchase
Order ("PO"), from the Customer and accepted by the Company in writing in
accordance with Article 2.0.
1.3 Any SOW, Assignment or PO shall be considered made a part of and
integrated with this General Services Agreement such that they shall be
considered one entire Agreement between the parties.
1.4 Unless stated otherwise in any SOW, Assignment or PO, the Company
shall be responsible for the supervision, management, and control of any
Services provided to the Customer under this General Services Agreement.
1.5 The Company shall not be responsible for any delay in the
performance of Services due to causes beyond the reasonable control of the
Company, including but not limited to natural disasters, acts of God,
strikes, declared war, and the like (force majeure).
1.6 The Services specified in any SOW, Assignment or P0 shall constitute
the complete and exclusive definition and description of Services to be
provided by the Company hereunder.
1.7 In the event that the Company determines that any information
provided by the Customer is inaccurate or incomplete, subsequent to the
commencement of the provision of Services, or in the event that the Customer
requests a modification to an SOW, Assignment or PO, the Company reserves the
right to suspend performance of Services until such time as accurate and
complete information has been provided by the Customer to the Company and any
modification of Services that has been proposed by Customer and/or Company in
accordance with Article 2.0 or this Agreement has been amended, as
appropriate, and accepted by both parties.
2.0 MODIFICATIONS
2.1 If Customer wishes to modify the Services specified in an attached
SOW, any Assignment or PO, or wishes to obtain additional Services not
covered by this Agreement, the Customer shall so advise the Company, in
writing, and
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the Company will respond in writing with its' understanding of the additional
services or modification requested and its' acceptance or rejection thereof.
2.2 Customer's proposal for modification or addition of Services shall
specify the Services to be performed together with the following information:
- Nature of work to be performed;
- Number of individuals required;
- Level of experience of each individual;
- Date on which Assignment is to begin;
- Length of Assignment;
- Contact individual or Customer if different from individual
listed above.
2.3 Within five (5) days after receipt of a Customer proposal, the
Company shall provide the Customer with a written cost estimate for
performing the modified or additional Services. If the Customer accepts the
Company's written cost estimate, in writing, then such written specifications
and cost estimate shall constitute an additional or modified SOW, Assignment,
or PO, and shall be governed by the terms and conditions of this Agreement
and the SOW, Assignment or PO, which shall be read together as one integrated
Agreement.
2.4 In the event of a conflict between the terms and conditions of this
Agreement and the terms and conditions of any SOW, Assignment or PO, the
terms and conditions of the SOW, Assignment or P0 shall govern.
2.5 If the Customer wishes to modify an attached SOW, any Assignment or
P0 by oral request, the Company may perform ouch modified Services at its
discretion. If Services are performed in response to Customer's oral request,
Customer agrees that the time expended by the Company to perform modified
Services shall be reasonable and necessary and that the charges for and
performance of such Services shall be governed by this Agreement.
Confirmation of requesting or ordering by Customer of orally requested
Services agreed to be performed by the Company, shall be made in writing
within 10 days after the Company has orally agreed to perform such Services.
Company will confirm in writing, within 10 days, acceptance of Customer's
request or order.
3.0 RESOURCES
3.1 Customer shall be responsible for providing the Company with any
technical information, data, design, or documentation reasonably requested by
the Company to perform the Services.
3.2 Customer shall ensure that it has competent personnel available to
provide information and other support to the Company while providing Services
under this Agreement.
3.3 If Services are to be performed at the Customer's premises,
Customer shall provide the Company with the following:
a) a work space with telephone;
b) access to the Customer's computer system;
c) software and related equipment if necessary to perform the
Services;
d) operating supplies and stationery;
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e) adequate storage space for work materials; and
f) any specific training that is necessary for the Company to
perform the required Services for the Customer.
3.4 The Company shall provide competent, qualified personnel to perform
the Services.
3.5 Neither the Company nor any of the Company's employees shall be
deemed to be employees of Customer by virtue of this Agreement, nor shall the
Company be deemed a partner working in a partnership organization with the
Customer.
3.6 Neither party shall solicit nor offer employment to any of the other
party's employees during the term of this Agreement or for a period of twelve
(12) months following termination of this Agreement unless mutually agreed to
by the Company and Customer in writing.
4.0 PAYMENT
4.1 Customer shall reimburse the Company for its reasonable,
out-of-pocket expenses incurred in connection with the provision of Services
which shall include, but not be limited to, long-distance telephone calls and
computer time. Customer shall also reimburse the Company for any travel or
living expenses of Company personnel incurred by the Company personnel while
performing Services outside the Denver Metro area. The Company shall obtain
written approval from Customer prior to incurring any such expenses.
4.2 The Customer shall be invoiced for the Services performed and any
expenses, including itemized details, incurred as set forth above. Such
invoices shall be due and payable by Customer in accordance with the
Company's existing credit policy or specific agreements set forth in any SOW,
Assignment or PO. All invoices not paid in accordance with the credit terms
agreed to in this Agreement or any attached SOW, Assignment, or PO shall be
subject to a late payment charge of 1.75% per month commencing on the day
the: invoice becomes overdue.
4.3 Any and all taxes, except income taxes, imposed or assessed by
reason of this Agreement or the performance of Services hereunder, including
but not limited to sales or use taxes, shall be paid by the Customer.
5.0 CONFIDENTIAL INFORMATION AND INTELLECTUAL PROPERTY
5.1 The Company agrees to protect the confidentiality of data or
information that relate to Customer's business and which are clearly
designated in writing as confidential by Customer, or which would be
reasonably considered confidential to Customer, with the same degree of care
that the Company utilizes in protecting its own confidential information.
5.2 Unless stated otherwise in any attached SOW, Assignment or PO, any
copyrightable material created under this Agreement for use by Customer (Work
for Hire) shall be the proprietary property of Customer upon Customer's
performance of its contractual obligations set forth herein, inclusive of
payment of all amounts due the Company. Cooperation with copyrighting and
assignments of copyrights are, available upon Customer request.
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5.3 If proprietary intellectual property owned by the Company, its
contractors, or third parties is enhanced by the Company hereunder, provided
the enhanced intellectual property does not include proprietary intellectual
property otherwise owned by the Customer, the parties agree the enhanced
intellectual property shall be jointly owned and usable by Customer and the
Company without any obligation of contribution of one party to the other
party for use of the same.
5.4 Notwithstanding this Section 5.0, it shall be the agreement of the
parties that the Company shall retain all generic software tools, designs,
and tool evaluations used or developed in conjunction with any SOW,
Assignment or PO referred to herein, that are not specifically identified to
and with a Customer application. These generic tools shall be defined to
include but not be limited to graphics, expert system, object oriented or
data base functionality not specifically related to the Customer application.
All other intellectual property conceived, created, discovered, developed, or
reduced to practice by the Company under this Agreement inclusive of any
integrated SOW, Assignment or PO, for the benefit of Customer and which in
any way results or arises out of the Company's work hereunder for Customer,
shall be transferred to Customer promptly upon Customer's performance of its
contractual obligations set forth herein, inclusive of payment of all amounts
due the Company.
5.5 Company shall have the right to demonstrate the materials, products,
or services provided or developed under this Agreement to its' current or
prospective clients for the sole purpose of demonstrating the Company's
technical capabilities. Company agrees to protect any copies of said
materials, products, or services used for demonstration purposes. Company
agrees to obtain prior written consent from Customer, which consent shall not
be unreasonably withheld, before demonstrating said materials, products, or
services to any entity that could be construed as a competitor of the
Customer.
5.6 Company shall have the right to publicize and use the materials,
products, or services provided or developed under this Agreement for printed
advertisement and promotion with written consent from Customer which consent
shall not be unreasonably withheld.
6.0 WARRANTY
6.1 Ownership Rights: The Company warrants that to the best of its'
knowledge, all materials and services provided according to an attached SOW,
Assignment or P0 do not and will not infringe any patents, copyrights,
trademarks, or other intellectual property rights (including trade secrets),
privacy or similar rights of any third party.
6.2 Compliance: The Company warrants that:
a) all materials and services provided under an attached SOW, Assignment
or PO shall be consistent with generally accepted software development
standards;
b) that such materials will function on the machines and with the
operating systems for which they are designed;
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c) that all materials will conform to the specifications and functions
set forth in an attached SOW, Assignment or PO.
6.3 Indemnity: Company will indemnify Customer against all claims,
suits, damages, and liabilities arising out of third party claims for acts or
omissions by the Company made in connection with the materials and services
provided under this agreement.
COMPANY EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED,
WITH REGARD TO THE SERVICES AND MATERIALS PROVIDED HEREUNDER, INCLUDING ALL
WARRANTIES OF MERCHANTABILITY AND/OR FITNESS FOR A PARTICULAR PURPOSE,
ARISING OUT OF OR IN CONNECTION WITH THE PERFORMANCE OF SERVICES UNDER THIS
AGREEMENT. COMPANY DOES NOT WARRANT THAT THE MATERIALS OR PRODUCTS PROVIDED
UNDER THIS AGREEMENT SHALL OPERATE ERROR FREE.
7.0 LIMITATION OF LIABILITY
7.1 COMPANY'S TOTAL LIABILITY FOR DAMAGES UNDER THIS AGREEMENT,
REGARDLESS OF THE FORM OR TYPE OF ACTION IN WHICH SUCH DAMAGES ARE SOUGHT,
SHALL BE LIMITED TO THE AMOUNTS ACTUALLY PAID BY THE CUSTOMER TO THE COMPANY
UNDER THIS AGREEMENT.
7.2 IN NO EVENT SHALL THE COMPANY BE LIABLE FOR ANY SPECULATIVE, REMOTE,
INDIRECT, INCIDENTAL, CONSEQUENTIAL, FORESEEABLE OR EXEMPLARY DAMAGES, NOR
LOSS OF PROFITS, INCLUDING, BUT NOT LIMITED TO LOSS OF DATA, ANTICIPATED
PROFITS, OR BUSINESS REPUTATION, EVEN IF THE COMPANY IS ADVISED IN ADVANCE OF
THE POSSIBILITY OF SUCH DAMAGES OR LOSSES.
8.0 DISPUTE ARBITRATION
8.1 Any disputes that arise between the parties to this Agreement with
respect to the performance of Services or otherwise under this Agreement or
an SOW, Assignment or PO, that cannot be resolved by negotiation (or, if the
parties so choose, mediation) within fifteen (15) days after written notice
given by one party to the other of such a dispute, shall be submitted to
binding arbitration to be held in San Diego, California in accordance with
the then current rules of the American Arbitration Association.
8.2 The parties agree that the party losing any arbitration shall pay
the identified costs, including reasonable attorney's fees and expenses, of
any such arbitration and abide by any final arbitration decision, which
decision shall bet enforceable through and by the courts of the State
California or the United States of America.
9.0 TERMINATION
9.1 The term of this Agreement shall commence on the date first above
written and shall continue until the latest date specified for performance of
Services. Termination dates in any SOW, Assignment, or PO integrated with
such Agreement shall not terminate this General Services Agreement.
Termination of this Agreement must follow the procedure set forth below.
9.2 This Agreement shall automatically be renewed for successive
one-year periods ("Renewal Years") unless terminated under one of the
following provisions:
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A. The party seeking to terminate this Agreement, with or without cause,
gives written notice to the other party of its intention to terminate this
Agreement at least thirty (30) days prior to the end of the current Contract
Year or Renewal Year, or
B . Subject to the further terms of this Section 9.2, either party may
terminate this Agreement for any material breach of this Agreement by the
other party (see Paragraph D. below), or
C. Either party may terminate this Agreement if the other party becomes
insolvent or shall be adjudicated a bankrupt, or if the other party's
business shall come into the possession or control, even temporarily, of any
trustee in bankruptcy, or if a receiver shall be appointed for it or if the
party makes a general assignment for the benefit of creditors.
Termination under 9.2-A. above shall not be effective as to SOW'S,
Assignments, or PO's entered into by the parties during the life of this
General Services Agreement. Obligations of any SOW, Assignment, or PO shall
continue with respect to each SOW, Assignment, or PO regardless of when this
Agreement shall terminate unless otherwise mutually agreed to by the parties.
Termination under B. or C. above will result in immediate cessation of
this Agreement on the effective date of termination of the Agreement,
provided however, that the Company may choose, with Customer's prior written
approval, to complete a SOW, Assignment, or PO for Customer commenced prior
to the effective date of a termination and receive reimbursement for such
services in accordance with the terms of this Agreement.
D. In the event of a material breach of this Agreement by either party,
the non-breaching party may give notice to the breaching party that it is in
default hereof, at which time the breaching party shall have thirty (30) days
to cure said default, or for defaults, other than failure to pay claims, if
such default cannot be cured within such period, the breaching party shall
have commenced such cure within thirty (30) days of the notice and shall
diligently pursue and complete such cure within a reasonable period of time.
In the event the breaching party fails to cure the same, the nonbreaching
party shall have the exclusive option to terminate this Agreement at the end
of such thirty (30) day period without further liability hereunder by giving
written notice of termination to the breaching party.
9.3 In addition to any other rights or remedies available to it at law
or in equity, the Company shall have the right to immediately suspend
performance of Services hereunder should Customer fail to make timely
payments in accordance with Article 4.0 above.
9.4 In the event of termination for any reason, each party shall
promptly, return all materials, information and data provided to it by the
other party during the term of this Agreement, provided each party furnishes
the other with a total and complete release of any obligations under this
Agreement.
9.5 Notwithstanding termination of this Agreement for any reason,
Customer shall remain liable for the payment to the Company for any costs,
charges and reasonable expenses incurred in connection with the provision of
the Services theretofore performed by the Company, and shall make payment for
the same in accordance with the provisions of Article 4.0.
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9.6 The provisions of Section 3.6 and of Articles 5.0, 6.0 7. 0 and
8.0, shall survive termination of this Agreement for any reason.
10.0 GENERAL PROVISIONS
10.1 Should any provision of this Agreement be held by a court of
competent jurisdiction to be illegal, invalid, or unenforceable, the
remaining provisions of this Agreement shall not be affected or impaired
thereby and shall continue in full force and effect.
10.2 The failure of either party to enforce any term or condition of
this Agreement shall not be considered to constitute a waiver of either
party's right to enforce each and every term and provision of this Agreement.
10.3 This Agreement shall not be assignable by either party without
first obtaining the prior written consent of the other party. Any attempt to
assign the Agreement or any part of this Agreement without such consent shall
be void and of no effect.
10.4 This Agreement shall be binding upon and inure to the benefit of
the parties' respective successors, legal representatives, and/or authorized
assigns.
10.5 This Agreement shall be governed by and interpreted in accordance
with the laws of the State of Colorado.
10.6 Notices permitted or required to be given under this Agreement
shall be deemed given when delivered personally or mailed by first-class
registered or certified mail, postage prepaid, to the attention of the
respective signatories, or Contact Persons of this Agreement at the addresses
stated above. Deliveries by commercial carrier shall also be considered as
notice given.
10.7 This Agreement states the entire Agreement of and between the
parties with respect to its subject matter and supersedes all prior written
or oral agreements and representations of the parties.
FOR THE COMPANY: FOR THE CUSTOMER:
/s/ CFO /s/ Xxx Xxxxxx VP & CFO
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Signature and Title Signature and Title
DATE 12/25/97 DATE 12/25/97
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