Exhibit 10.2
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Software License, Development, Support, And
Information Service Provider Agreement
Between
Qiva, Inc.
and
Pacer International, Inc.
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Table of Contents
RECITALS XXXVII
BASE AGREEMENT XXXVII
1. DEFINITIONS XXXVIII
2. SERVICES XLII
2.1. Development Services For Enhanced Iqship XLII
2.2. Additional Development Services XLII
2.3. Application Service Provider XLII
2.4. Support And Maintenance Services; Modifications XLII
2.5. Implementation And Integration Services XLII
2.5. Integrate, And Demonstrate The Operation Of The Deliverables To The Client XLII
2.5.1 Data Migration From Current Operational Systems xlii
2.5.2 Program Documentation xlii
2.6. Training Services XLII
2.7. Personnel And Facilities xLIII
2.8. Licenses And Permits XLIII
2.8.1 Cooperation xliii
2.8.2 Transferability xliii
2.9. Access To Client Systems And Client Data XLIII
2.10. Service Locations; Domains XLIII
2.10.1 Client Choice Of Domain Name xliii
2.10.2 Other Service Locations xliii
2.10.3 Change Of Environment 9
2.11. Data Migration From Programs XLIV
2.12. Subcontracting XLIV
3. GRANT OF RIGHTS TO CLIENT XLIV
3.1. Definition Of "Permitted Purposes" XLIV
3.2. Grant Of License In Standard Programs XLIV
3.3. Grant Of Exclusive License In Enhanced Iqship XLIV
3.4. Grant Of Rights In Program Output XLV
3.5. Grant Of License In Program Documentation XLV
3.6. Grant Of Rights To Authorized Users. XLV
3.6.1 Definition Of "Authorized Users" XLV
3.6.2 Rights Of Authorized Users xlv
3.7. No Development Rights; Exceptions XLV
3.8. License Restrictions XLV
3.9. Client Duty Concerning Unauthorized Use XLV
4. GRANT OF RIGHTS TO OPERATOR XLV
4.1. Grant Of Rights In Client Data XLV
4.2. Grant Of Rights In Client Contributions XLVI
5. CONTRACT ADMINISTRATION AND PROJECT TEAM XLVI
5.1. Joint Planning Committee. XLVI
5.1.1 Formation xlvi
5.1.2 Meetings 12
5.1.3 Functions Of JPC 12
5.1.4 Operation; Decision-Making 12
5.1.5 Dispute Resolution 12
5.2. Project Coordinators XLVI
5.3. Project Staff XLVI
5.3. List Of All Employees Dedicated Full-Time To The Project Staff XLVI
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5.3.1 Restricted Positions xlvii
5.3.2 Reassignment Limitations: Expertise xlvii
5.3.3 Reassignment Limitations: Non-Competition xlvii
5.4. Conduct Of Operator Personnel XLVII
5.4.1 Improper Conduct xlvii
5.4.2 Repeat Violations xlvii
5.5. Performance Review XLVIII
6. DEVELOPMENT 14
6.1. Development And Enhancements 14
6.2. Initiation Of Development Project XLVIII
6.3. Operator Quotes; Payment Option XLVIII
6.4. Development Project Phases XLVIII
6.5. Testing And Acceptance XLVIII
6.6. Project Completion; Delays XLVIII
6.7. Change Orders XLIX
6.8. Right To Terminate Project 15
6.9. Development Warranties XLIX
7. INTELLECTUAL PROPERTY RIGHTS RESULTING FROM DEVELOPMENT XLIX
7.1. Client Sole Ownership L
7.2. Operator Sole Ownership L
7.3. Joint Ownership L
7.3.1 Use Within Project L
7.3.2 Use Outside Of Project L
8. PATENT PROSECUTION FOR JOINTLY OWNED IP RIGHTS. L
8.1. Initial Filing; Subsequent Filings L
8.2. Disagreements Over Filing L
8.3. Issuing And Maintenance Costs L
8.4. Annual Consultations L
8.5. Withdrawal Of Interest 17
8.6. Effect On License Of Withdrawal Of Interest 17
9. PROPRIETARY RIGHTS AND CONFIDENTIALITY LI
9.1. Ownership Of The Operator's Intellectual Property li
9.2. Specific Protection li
9.3. Ownership Of The Client's Intellectual Property li
9.4. Non-Disclosure Of Operator Confidential Information 18
9.5. Non-Disclosure Of Client Confidential Information lii
9.6. Exceptions lii
9.6. Information lii
9.7. Return Of Confidential Information lii
10. CLIENT'S OBLIGATIONS 19
10.1. Delivery Of Information 19
10.2. Cooperation lii
11. FEES AND PAYMENT LII
12. WARRANTIES AND REPRESENTATIONS LIII
12.1. Operator Warranties liii
12.2. Client Warranties liv
13. INDEMNITY 22
13.1. Operator's Indemnification Obligations 22
13.2. Operator Exceptions liv
13.3. Reducing Exposure lv
13.4. Client Indemnification Obligations lv
13.5. Operator Expense Reimbursement lv
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14. TERM 24
14.1. Initial Term 24
14.2. Renewal Terms 24
15. OPERATOR FAILURES; PERFORMANCE CREDITS; ESCROW; SECURITY INTEREST.
LV
16. TERMINATION 25
16.1. Termination For Cause 25
16.2. Operator Termination For Cause 25
16.3. Client Termination For Cause 25
16.4. Bankruptcy lvi
17. EFFECT OF TERMINATION OR EXPIRATION LVII
17.1. Transition Assistance On Termination Or Expiration lvii
17.1.1 Transition Assistance lvii
17.1.2 The Client's Right To Hire The Operator Employees lvii
17.2. Right Of Immediate Payment lvii
17.3. Survival lvii
17.4. No Waiver lvii
17.5. Re-Allocation Of Services; Transfer Of Hosting 27
18. LIABILITY LVIII
18.1. No Implied Warranties lviii
18.2. Limitation Of Liability lviii
18.3. Exceptions lviii
19. INSURANCE LIX
19.1. Insurance Maintained By The Operator lix
19.2. Insurance Documentation lix
20. DISPUTE RESOLUTION LIX
20.1. Submission Of Dispute To Jpc; Escalation To Upper Management 29
20.2. Arbitration lx
20.3. Jurisdiction In Intellectual Property Disputes lx
20.4. Governing Law lx
21. GENERAL PROVISIONS 30
21.1. Assignment 30
21.2. Entire Agreement; Amendment lxi
21.3. Force Majeure lxi
21.4. Severability lxi
21.5. Headings lxi
21.6. No Partnership Or Agency lxi
21.7. Counterparts 31
ATTACHMENT A: LIST OF DELIVERABLES LXIII
A.1. ENHANCED IQSHIP LXIII
ATTACHMENT B: REQUIRED SERVICE LEVELS LXV
B.1. INTRODUCTION AND SCOPE; SERVICE LEVELS LXV
B.2. AREAS OF RESPONSIBILITY LXV
B.2.1. Scope Of Service Level Agreement lxv
B.2.2. Application Support Desk lxv
B.3. DEFINITION OF TERMS LXV
B.3.1. ASPp Center lxv
B.3.2. Support Services lxvi
B.3.3. Service Availability lxvi
B.3.4. Critical Business Periods lxvi
B.3.5. Fault Prioritization. lxvi
B.4. GUARANTEED PROCESSING AND AVAILABILITY TIMES LXVII
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B.4.1. Application Response Times LXVII
B.4.2. Query Response Times LXVII
B.4.3. Guaranteed Up- Times LXVII
B.4.4. Downtime LXVII
B.4.5. Operator Application Support Desk LXVIII
B.4.6. Performance Reports LXVIII
B.5. SUPPORT SERVICES LXVIII
B.5.1. Fault Prioritization LXVIII
B.5.2. Response Times LXIX
B.5.3. Escalation Procedures LXIX
B.6. SYSTEMS PROCEDURES/ADMINISTRATION LXX
B.6.1. Account Set-Up LXX
B.6.2. Changes To Access Rights LXX
B.6.3. Password Changes LXX
B.6.4. Account Deletions LXX
B.6.5. System Changes Initiated By The Asp Center LXX
B.6.6. Applications Version Patches LXXI
B.6.7. Operating System And Database Upgrades LXXI
B.6.8. Network Upgrades LXXI
B.6.9. Bespoke Reports LXXI
B.7. DATA INTEGRITY LXXI
B.7.1. Back-Ups LXXI
B.7.2. Restores LXXI
B.7.3. Data Retention LXXII
B.7.4. Disaster Recovery LXXII
B.8. MODIFICATIONS AND ENHANCEMENTS LXXII
B.9. SECURITY LXXIII
B.9.1. Physical Site Security LXXIII
B.9.2. Security For Online Systems. LXXIII
B.9.3. Data Security. LXXIII
B.9.4. Security Relating To Shared Environments. LXXIII
B.9.5. Notice Of Security Breach. LXXIII
B.10. DATA AND PRIVACY PROTECTION LEGISLATION LXXIII
B.11. SERVICE LEVEL REVIEWS; BEST PRACTICES LXXIV
B.12. NON-PERFORMANCE LXXIV
ATTACHMENT C: PROFESSIONAL SERVICES (PS) LXXV
ATTACHMENT D: PAYMENT AND FEES ERROR! BOOKMARK NOT DEFINED.
ATTACHMENT E: SOURCE CODE ESCROW AGREEMENT ERROR! BOOKMARK NOT DEFINED.
ATTACHMENT F: LIST OF PROJECT COORDINATORS AND PROJECT MANAGERS ERROR! BOOKMARK NOT DEFINED.
ATTACHMENT G: LIST OF THIRD PARTY CONTRACTS ERROR! BOOKMARK NOT DEFINED.
ATTACHMENT H: SCHEDULE 55
ATTACHMENT I: INTERIM SPECIFICATION FOR ENHANCED IQSHIP ENTITLED "SUMMARY" ERROR! BOOKMARK NOT DEFINED.
This SOFTWARE LICENSE, DEVELOPMENT, SUPPORT, AND INFORMATION SERVICE
PROVIDER AGREEMENT is made on the __ day of March, 2001 (the "Effective Date")
is
BETWEEN
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Qiva, Inc., ▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ (the
"Operator")
and
Pacer International, Inc., 1 Concord Centre, ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇,
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ (the "Client"); each sometimes referred to as a "Party"
or collectively as the "Parties" to this Agreement.
Recitals
WHEREAS
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A. The Operator is in the business of designing, hosting, operating,
supporting and maintaining on behalf of its clients electronic database and
information management software applications and web pages.
B. The Operator provides these software applications under an "Application
Service Provider" model, whereby the applications and its clients' data are
resident on servers which are controlled by the Operator, and which the
Operator's clients access through virtual private networks and the World
Wide Web.
C. The Client wishes to license and use certain of the Operator's existing
software applications, and wishes to engage the Operator to customize
certain of its applications for the Client's specific uses, all as
specified in Attachment A (List of Deliverables). The Client also wishes to
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engage the Operator to provide ongoing support and maintenance for these
software applications.
D. The Client intends to use the software applications and to rely upon the
Operator's services to run, on a day-to-day basis, certain of the Client's
key business processes; to store, retrieve, and manipulate data; and to
provide its customers and other interested parties with access to relevant
data and software functionality.
E. The Client is willing to license the software applications under an
Application Service Provider model, provided the Operator maintains certain
service levels, as provided in Attachment B (Required Service Levels).
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F. The Operator is willing to provide such software applications and to
perform such services for the Client on the terms and conditions set forth
herein.
Base Agreement
In consideration of the foregoing premises, the parties agree as follows:
IT IS AGREED:
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DEFINITIONS
In this Agreement the following initially capitalized terms shall have the
following meanings:
"Account" shall have the meaning provided in Section B.6.1.
"Access Rights" shall have the meaning provided in Section B.6.2.
"Agreement" shall mean this Software License, Development, Support,
And Information Service Provider Agreement.
"ASP Center" shall have the meaning provided in Section B.3.1.
"Associated Company" means any entity which owns or controls, or is
directly owned or controlled by, or in common ownership or control
with a Party. For purposes of this definition, the term "control"
shall mean ownership of more than 50% of the entity's shares or stock
or having the equivalent power to vote at a general meeting or the
equivalent.
"Authorized Users" shall have the meaning provided in Section 0.
"Client Contributions" shall have the meaning provided in Section 0.
"Client Data" shall mean any data or information input or stored in
the Programs for purposes of the Client's business, whether by the
Client, by the Client's agents, or by Authorized Users.
"Client Regulatory Requirements" shall mean the laws, rules and
regulations on an international, federal, state and local level to
which the Client is required to submit or to which it voluntarily
submits.
"Client Service Location" shall mean any location owned, leased, or
controlled by the Client and from or at which the Operator provides
services in connection with this Agreement or any applicable Project
Plan.
"Communications and Network Facilities" shall mean Network and
communications software and equipment located at the ASP Center
necessary or advisable for the functioning of the Programs as provided
in this Agreement. The "Communications and Network Facilities" shall
specifically exclude any communications network equipment or related
software necessary or advisable for communication and data transfer
between the Client and the ASP Center, via the Internet or Client's
wide area network.
"Confidential Information" means (a) any information of a Party which
is of a proprietary or confidential nature that relates to, but is not
limited to, its administrative, financial, technical or operational
arrangements or such arrangements of its Associated Companies, (b) any
information of a Party which
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reasonably should be understood to be confidential, and (c) any other
information of a Party which is otherwise expressly stated or
otherwise designed by it to be confidential. Confidential Information
shall also include the substantive terms (but not the existence) of
this Agreement. The term shall not include information excluded from
the definition of "Confidential Information" in accordance with
Section 0.
"Deliverables" means and includes any and all electronic data base and
information management software applications set forth in Attachment
A, or in a Project Plan, including any and all web page files,
software, and/or other executable code, developed or otherwise
provided for the Client by the Operator under this Agreement, and
shall include the Programs, and the Program Documentation.
"Delivery Dates" means the date on which the Operator shall provide
the Client with access in fact to a Deliverable or to a Project
Milestone Deliverable. Such access may be accomplished either (a)
through delivery of physical media containing the Deliverable, or (b)
through the World Wide Web or via a virtual private network/frame
relay, as specified in the relevant Project Plan or as otherwise
mutually agreed by the Parties.
"Development Project" shall have the meaning provided in Section 6.1.
"Escrow Release" shall have the meaning provided in Section 0.
"Effective Date" means the date first written above.
"Enhanced IQship" means the IQship program which has been customized,
enhanced and otherwise modified by the Operator on the Client's behalf
and in accordance with Attachment A.
"Errors" means any error, defect, bug or other problem in any of the
Deliverables, which causes such Deliverable to (a) fail to function in
the manner intended, (b) fail to function in accordance with
applicable warranties, (c) fail to function with the Specifications or
a Project Plan, or (d) fail to function in accordance with some
combination, or all of the above.
"Intellectual Property Rights" means and includes all patents, utility
models, design patents, copyrights, design rights, database rights,
trade secrets, trademarks, and any and all other proprietary rights,
and any and all registrations thereof and applications therefor,
throughout the world. The term "Intellectual Property Rights" shall
mean such rights as they exist as of the Effective Date, and all such
rights as subsequently acquired during the Term.
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"Internet" shall mean the global network of interconnected computer
networks (or any part thereof), using TCP/IP or such other network
interconnection or communications protocols as may be adopted from
time to time, which is used to deliver data to a computer or other
digital electronic device, whether such data is delivered through on-
line browsers, off-line browsers, or through electronic mail,
broadband distribution, satellite, wireless or otherwise.
"IQuator" means all database applications and associated web page
files designed, developed, hosted, operated, maintained and/or
supported by the Operator as part of the Operator's IQuator program.
"IQship" means all database applications designed, developed, hosted,
operated, maintained and/or supported by the Operator as part of
Operator's IQship program.
"Jointly Owned IP Rights" shall have the meaning provided in Section
0.
"JPC" shall mean the Joint Planning Committee, as further defined in
Section 0.
"Modification" means any revision, new version, enhancement, or other
change to any of the Programs, as further defined in Section B.8.
"Network" shall mean a group of computers or other digital electronic
devices connected by communications facilities, either through long-
term connections, such as cables, or through more temporary
connections, such as by telephone, by satellite, or other
communications links. The term "Network" encompasses, but is not
limited to, Local Area Networks ("LANs") and Wide Area Networks
("WANs"), and includes user-to-user as well as distributed
communications.
"Operator Service Location" shall mean any location owned, leased, or
controlled by the Operator and from or at which the Operator provides
services in connection with this Agreement or any applicable Project
Plan.
"Performance Credit" shall have the meaning provided in Section 0.
"Person" or "person" shall mean a natural person or an entity.
"Programs" means the Standard Programs and Enhanced IQship. The term
"Programs" shall also include Communications and Network Facilities,
it being understood that such Facilities, shall not be physically
"delivered" to the Client.
"Program Documentation" means instruction manuals and user guides that
allow users to operate and utilize the functionality of the Programs
without undue effort as well as any documents described in or
referenced in Section 9.1.
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"Program Output" shall mean the output that results from application
of the Programs to Client Data.
"Project" shall mean, in the case of Enhanced IQship, the design,
development, implementation, installation, testing, integration and
demonstration of operation of Enhanced IQship and the Deliverables
associated therewith, or any separable components thereof, and in the
case of each Standard Program, the installation, testing, integration
and demonstration of operation of such Standard Program and the
Deliverables associated therewith, or any separable components
thereof.
"Project Plan" shall have the meaning provided in Section 5.1.3.
"Project Staff" shall have the meaning provided in Section 0.
"Project Milestone Deliverable" shall mean work product, as defined in
a Project Plan, representing completion of a task or group of tasks
within a Project.
"Quote" shall have the meaning provided in Section 0.
"Service Level Failure" shall have the meaning provided in Section 0.
"Service Levels" shall have the meaning provided in Section B.1.
"Services" means the design, development, hosting, operating,
supporting, maintaining and/or error correction services to be
performed by the Operator hereunder, including development of the
Deliverables and the installation, operation and maintenance of the
Programs, as well as the processing of data, on the Operator's
information processing system, as more fully described in Section 0.
"Software Escrow Agreement" means a tri-party Escrow agreement between
Fort ▇▇▇▇ Escrow Services Inc., the Client, and the Operator, in the
form attached as Attachment E.
"Specifications" shall mean the specifications for Enhanced IQship and
the Standard Programs, as set forth in Attachment A.
"Standard Programs" means the database applications, machine-readable
object code and associated web page files delivered by the Operator to
the Client as part of the Deliverables. The term "Standard Programs"
shall include IQuator and IQship, but shall not include Enhanced
IQship. All Modifications to the Standard Programs shall be included
within the meaning of the term "Standard Programs."
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"Support Services" means the telephone and web-based application and
service help desk support and testing support provided by the
Operator, as further defined in Section 0.
"Website" shall mean a series of interconnected Web Pages residing in
a single directory on a single server.
"Web Page" means a document or file that is intended to be accessible
by Internet users.
SERVICES
The Client hereby engages the Operator and the Operator hereby agrees to provide
the following Services and to produce the Deliverables.
Development Services for Enhanced IQship. The Operator shall develop Enhanced
IQship in accordance with the Specifications and associated Project Plan, all
as provided in the attached List of Deliverables (Attachment A). The
development of Enhanced IQSship shall proceed as provided in Section 6.
Additional Development Services. The Operator may undertake and complete
additional development projects pursuant to Section 6, as requested by the
Client and mutually agreed to by the parties during the Term.
Application Service Provider. The Operator, as an Application Service Provider,
will provide the Client with hosting, processing, and other services, as well as
use of requisite hardware and operating systems, as may be further specified in
Attachment B. Client hereby agrees and acknowledges that Client shall be solely
responsible for all communications and network equipment and related software
necessary or advisable for the communication and data transfer between Client
and the Operator or the ASP Center. The Operator shall provide the services
under this Section 0 in accordance with the Required Service Levels set forth in
Attachment B.
Support and Maintenance Services; Modifications. The Operator shall support and
maintain (as provided in Attachment B) the Programs and Deliverables. The
Operator shall use commercially reasonable efforts to ensure that the Programs
meet or exceed industry standards and, pursuant to Section B.8 shall provide the
Client with suitable Modifications for such purposes.
Implementation and Integration Services. The Operator shall install, test,
integrate, and demonstrate the operation of the Deliverables and all
Modifications to the Client.
Data Migration from Current Operational Systems. As part of the Implementation
and Integration Services, the Operator shall migrate data specified by the
Client from the Client's current operational systems to the Programs.
Program Documentation. In connection with Services under this Section 0, the
Operator shall provide the Client with a limited number of copies of Program
Documentation and shall update such Program Documentation for the Standard
Programs and for Enhanced IQship.
Training Services. The Operator shall provide the Client with such training as
the Client may request and as the JPC shall approve; provided, however, that the
Application Support Fees shall include on an annual basis a minimum of fifty
(50) hours of training for employees selected by the Client. The Client may
designate up to ten employees to receive such training, and training
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sessions shall, at the Client's discretion, take place (a) at a location or
locations designated by the Client (with the Client to pay the reasonable
travel, lodging, and meal expenses of the Operator's trainers, upon submission
of supporting documentation), or (b) at the Operator's facilities, with the
Client bearing responsibility for the expenses of its trainees. Unused training
hours shall "carry over" from year to year. Training requested by the Client in
addition to the training set out in this Section 0 shall be charged on an hourly
basis, at the rates set out in Attachment D.
Personnel and Facilities. Except as otherwise agreed between the Parties or as
set forth in this Agreement, the Operator shall be solely responsible for
providing all facilities, equipment, personnel, supplies and other resources
required by the Operator for the performance of the Services and any and all of
its other obligations under this Agreement. The Operator is and shall remain an
independent contractor and, as such, shall be solely responsible for determining
the manner, means and methods by which the Operator performs the Services and
its other obligations hereunder.
Licenses and Permits. The Operator shall obtain and maintain all necessary
licenses (including, but not limited to, software licenses), consents,
approvals, and permits and any authorizations required by legislative enactments
and regulations applicable to it that are legally required for the Operator to
provide the Programs. Attachment G lists the third-party software licenses and
other contracts necessary to operate the Programs. The Operator shall update
Attachment G, and shall provide the Client (in a timely manner) updated versions
of this Attachment.
Cooperation. Subject to the foregoing, and upon request, each party shall
cooperate with and provide reasonable assistance to the other party in obtaining
any such licenses, consents, approvals, permits and authorizations.
Transferability. The Operator shall use commercially reasonable efforts to
ensure that any third party contracts or licenses shall be transferable to the
Client, in the event of an Escrow Release.Access to Client Systems and Client
Data. The Client shall provide the Operator with reasonable access to the
Client's existing system, and reasonable access and samples of Client Data, to
facilitate the Operator's provision of Services under this Section 0. Operator
shall not be responsible for any delay in Services resulting from Client's
failure to provide such access or samples.
Service Locations; Domains. Unless otherwise agreed by the Client, the Operator
shall provide the Services from the Operator's Service Location physically
located at the ASP Center, and with a URL to be provided by the Client.
Client Choice of Domain Name. The Client shall have discretion to designate or
change the domain name for any Website from which the Operator provides ASP
services for the Client hereunder; provided (a) that the Client possesses rights
to such domain name(s), and (b) that the Client reimburses the Operator its
reasonable expenses incurred in changing the domain name.
Other Service Locations. The Operator may provide the Services from other
service locations, upon prior approval by the Client and provided that the
Operator demonstrates to the Client's reasonable satisfaction that the provision
of the Service from such other location will not result in additional cost or
decreased Service Levels to the Client and that there are no increased material
risks to the Client regarding the security of Client Data or the disclosure of
the Client's Confidential Information.
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Change of Environment. In the event that the Operator desires to migrate
Services or technology subject to this Agreement from one shared environment to
another shared environment, the Operator will, prior to migrating such services
or technology, (1) advise the Client of such desire; (2) consult with the Client
on a proposal and transition plan; (3) demonstrate to the Client's reasonable
satisfaction that the use of such shared environment will not result in any
additional cost or decreased Service Levels to the Client and that there are no
increased material risks to the Client regarding security of Client Data or the
disclosure of the Client's Confidential Information; (4) when commercially
reasonable, operate in parallel to demonstrate that there are no such increased
risks to security, confidentiality, Service Levels or user interfaces; (5) work
with the Client to mitigate any identified risks to the Client's business; (6)
review with the Client the effect of such migration on the Client's Regulatory
Requirements and contractual obligations and (7) obtain the Client's consent to
the transition plan to the shared environment, as presented.
Data Migration from Programs. The Operator agrees that Client Data shall be
stored by the Programs in industry-standard formats, and shall be readily
portable to industry-standard, off-the-shelf database applications.
Subcontracting. Prior to subcontracting any portion of the Services, the
Operator shall notify the Client of the proposed subcontract. The Client shall
have the right to approve such subcontractor, which approval shall not be
unreasonably withheld or delayed. No subcontracting shall release the Operator
from its responsibility for its obligations under this Agreement or under any
Project Plan. The Operator shall be responsible for the work and activities of
each of its subcontractors, including compliance with the applicable terms and
provisions of this Agreement. The Operator shall be responsible for all
payments of fees and expenses, as appropriate, to its subcontractors.
GRANT OF RIGHTS TO CLIENT
Definition of "Permitted Purposes". As used in this Agreement, the term
"Permitted Purposes" shall mean use of the Programs for purposes of storing,
processing, retrieving, reporting or transmitting Client Data for Client and its
Authorized Users' own internal business use, or for purposes of utilizing any
other functionality offered by the Programs for Client and its Authorized Users'
own internal business use, provided that any such use shall be limited solely to
Client Data.
Grant of License in Standard Programs. The Operator hereby grants to the Client
a nontransferable, non-exclusive, perpetual, worldwide license under the
Operator's Intellectual Property Rights to use, access, and display the Standard
Programs solely for Permitted Purposes. Notwithstanding the restriction on
transfers in this Section 3.2, the Client shall be entitled to transfer the
license granted by this Section 3.2 to (a) an entity to whom the Client may
assign its rights under this Agreement pursuant to Section 21.1; or (b) an
entity with whom the Client has entered an agreement for the purpose of using
such license for intermodal, trucking or logistics operations.
Grant of Exclusive License in Enhanced IQship. The Operator hereby grants to the
Client an exclusive, perpetual, worldwide, license under the Operator's
Intellectual Property Rights to use, access, and display the Enhanced IQship
solely for Permitted Purposes. It is agreed and understood that the Client's
exclusive rights to Enhanced IQship under this Section 0 shall not
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extend to IQship, which is the Standard Program upon which Enhanced IQship will
be based, as further provided in the Specifications.
Grant of Rights In Program Output. The Operator hereby grants the Client a
perpetual, exclusive (except as to the Operator for purposes of fulfilling its
obligations under this Agreement), royalty-free, worldwide license to reproduce,
adapt, use, transmit, display, and publicly distribute Program Output solely for
the Permitted Purposes.
Grant of License in Program Documentation. The Operator hereby (a) grants the
Client a non-exclusive, royalty-free, perpetual, worldwide license to use,
reproduce, adapt, display, transmit, and distribute internally and to Authorized
Users Program Documentation that concerns the Standard Programs solely for the
Permitted Purposes, and (b) grants the Client an exclusive, royalty-free,
perpetual, worldwide license to use, reproduce, adapt, display, transmit, and
distribute internally and to Authorized Users Program Documentation concerning
Enhanced IQship solely for the Permitted Purposes.
Grant of Rights to Authorized Users.
Definition of "Authorized Users". For purposes of this Agreement, the term
"Authorized User" shall mean a person which meets each of the following
conditions: (a) the person does or shall shortly do business with the Client;
(b) it is advisable, in the Client's reasonable determination, for the person to
access, manipulate, add to, and otherwise use Client Data and Program Output;
(c) the Client has identified the person to the Operator and selected Access
Rights (where applicable) for such person, and (d) the Operator has set up an
Account for such person, in accordance with Section B.6.1.
Rights of Authorized Users. The Operator grants the Client the right to
sublicense to Authorized Users its rights under this Section 0.
No Development Rights; Exceptions. It is agreed and understood that the Client
holds no development rights with respect to the Programs, except as expressly
provided in Section 0.
License Restrictions. Client acknowledges that the licenses granted under this
Section 0 do not permit Client (and Client shall not allow any third party) to:
(i) decompile, disassemble, reverse engineer or attempt to reconstruct, identify
or discover any source code, underlying ideas, underlying user interface
technique or algorithms of the Deliverables by any means whatever, or disclose
any of the foregoing; (ii) provide, lease, or lend the Deliverables, or use the
Deliverables for timesharing, service bureau, or any purposes other that
Permitted Purposes; (iii) use the Deliverables for the benefit of any third
parties other than Authorized Users; or (iv) modify or create a derivative work
of any part of the Deliverables.
Client Duty Concerning Unauthorized Use. The Client shall use reasonable
efforts to protect the Programs from any use that is not permitted under this
Agreement, and shall promptly notify the Operator of any such use of which the
Client becomes aware.
GRANT OF RIGHTS TO OPERATOR
Grant of Rights in Client Data. Subject to Section 0 and during the Term, the
Client grants the Operator a non-exclusive license internally to use,
manipulate, and reproduce Client Data for purposes of producing Program Output
and otherwise fulfilling the Operator's obligations under this Agreement. In
addition, the Client similarly grants the Operator, during the Term, a non-
exclusive license to display and distribute Client Data and Program Output to
Authorized Users, subject to any access control restrictions provided in Section
B.6.2.
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Grant of Rights in Client Contributions. It is understood that, during the
course of development and implementation of Enhanced IQship or such other
Projects as the Parties may undertake pursuant to this Agreement, the Client may
provide toward such development materials which constitute Confidential
Information, inventive contributions, works of authorship, or other valuable
contributions which relate solely to Enhanced IQship (collectively, "Client
Contributions"). The Client hereby grants the Operator a non-exclusive license
to incorporate such Client Contributions (for the benefit of the Client) in
Enhanced IQship and in Projects under this Agreement, subject to Section 0.
CONTRACT ADMINISTRATION AND PROJECT TEAM
Joint Planning Committee.
Formation. Within thirty (30) days after the Effective Date, the Parties shall
establish a Joint Planning Committee ("Joint Planning Committee" or "JPC")
consisting of an equal number of representatives, but no less than two (2),
designated by each Party, to oversee and control the development and support of
the Products. Each representative shall be senior officers and/or managers of
the Operator or the Client, and have relevant and appropriate experience. The
JPC shall be responsible for determining the number and frequency of meetings of
the JPC, decision making process, dispute resolution and all such other matters
necessary to implement, monitor and oversee the performance of this Agreement.
Timetable. Attached hereto as Attachment H is a schedule setting forth (i) in
Part 1, preliminary actions that are to be taken by the JPC and the deadlines by
which the JPC shall complete the specified actions, and (ii) in Part 2, actions
that are to be taken by the JPC in respect to each Project and the deadlines by
which the JPC shall complete the specified actions. Any of the deadlines set
forth in Attachment H may be modified by the JPC in accordance with procedures
adopted by the JPC.
Project Plans. In connection with each Project, the JPC shall approve a project
plan ("Project Plan") which will set forth Project Milestone Deliverables and
final Deliverables, Specifications for each Project, delivery dates for Project
Milestone Deliverables and final Deliverables and such other matters as shall be
appropriate for the Project.
Project Coordinators. Each party shall appoint an individual (the "Project
Coordinator") who, from the Effective Date, shall serve on a dedicated basis as
the primary representative for such party under this Agreement. A party's
appointment of a Project Coordinator shall be subject to the other party's
reasonable approval. The Project Coordinator shall (1) have overall
responsibility for managing and coordinating the performance of such party's
obligations under this Agreement and a Project Plan, (2) be authorized to act
for and on behalf of such party with respect to all matters relating to this
Agreement and the Project Plan and (3) appoint the individuals ("Project
Managers") who shall be primarily responsible for supervising performance under
the Project Plan. A current list of Project Coordinators and Project Managers
shall be maintained as Attachment G, as such Attachment may be amended from time
to time.
Project Staff. Each party, through its Project Coordinators and Project
Managers, shall only assign employees who possess the requisite training and
skills to perform the services contemplated under this Agreement ("Project
Staff"). Upon (a) the commencement of a Project Plan, (b) the acceptance of a
Deliverable or Project Milestone Deliverable, or (c) in the event of a material
turnover in Project Staff, the Operator shall provide the Client and the JPC
with a list of
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all employees dedicated full-time to the Project Staff. In consultation with the
Client, the JPC shall then review and approve staffing levels and personnel.
Except as otherwise approved by the Client, those personnel located on the
Client's premises may only provide services on such premises which support the
Client's operations.
Restricted Positions. The Operator acknowledges that certain of the Operator's
employees, due to their assignment to the Client's account, shall gain expertise
specific to the Client, and shall become knowledgeable in the Client's
Confidential Information. Such employees shall include those employees assigned
as (i) the Operator's Project Coordinators, (ii) the Operator Project Managers,
and (iii) such other of the Operator employees as the parties may mutually agree
in writing and reasonably designate ("Restricted Position Employees").
Reassignment Limitations: Expertise. The Operator agrees that, during the Term,
the Operator will not materially decrease the amount of time assigned to a
Restricted Position Employee on the Client's account without at least three (3)
months advance notice to Client.
Reassignment Limitations: Non-Competition. The Operator further agrees that,
without the Client's prior written approval, the Operator will not assign a
Restricted Position Employee to provide services during the period the Employee
works on the Client's account and for a period of three (3) months thereafter to
the intermodal trucking or logistics division of the following eight (8)
companies: Union Pacific, CSX, Burlington Northern Sante Fe (BNSF), Norfolk
Southern, The Hub Group, ▇▇▇▇▇▇▇▇▇ National, Inc., ▇▇ ▇▇▇▇ and ▇▇ ▇▇▇▇▇▇▇▇.
Procedure. In the event the Operator desires to reassign a Restricted Position
Employee, the Operator shall so notify the Client in writing three (3) months in
advance of any such assignment.
Written Notices. The Operator's notices of proposed assignments shall be
submitted in writing to the Client's Project Coordinator and to the pertinent
Project Manager(s).
Conduct of Operator Personnel. While at any Client Service Location, the
Project Staff shall (1) comply with the requests, rules and regulations of the
Client regarding personal and professional conduct (including the wearing of an
identification badge or personal protective equipment and adhering to the
Client's facilities regulations and general safety practices or procedures)
applicable to such Service Locations and (2) otherwise conduct themselves in a
professional and businesslike manner. The Operator shall cause the Project
Staff to maintain and enforce the confidentiality provisions of this Agreement
and any confidentiality provisions of any applicable Project Plans.
Improper Conduct. In the event that the Client determines that a particular
member of the Project Staff is not conducting himself or herself in accordance
with this Section 0, the Client may notify the Operator of such conduct. Upon
receipt of such notice, the Operator shall promptly (a) investigate the matter
and take appropriate action which may include (i) removing such employee from
the Project Staff and providing the Client with prompt notice of such removal
and (ii) replacing such employee with a similarly qualified individual or (b)
take other appropriate disciplinary action to prevent a recurrence.
Repeat Violations. In the event there are repeat violations of this Section by
a particular member of the Project Staff, the Operator shall promptly remove the
individual from the Project Staff as set forth above.
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Performance Review. The Project Coordinators will mutually determine how often
to meet in order to review the performance of both parties under this Agreement,
and shall meet when reasonably requested by either party to review the
performance of either party under this Agreement. At the request of either
party, written or taped minutes of such meetings may be kept.
DEVELOPMENT; TESTING; PROJECT COMPLETION
The Operator shall undertake and complete development projects, including the
development of Enhanced IQship (collectively, "Development Projects"), in
accordance with this Section 6. It is expressly agreed by the parties that all
Services and Deliverables in respect to Enhanced IQship shall be paid in
accordance with Section 11 and that all Services and Deliverables in respect to
any additional Development Projects not pertaining to Enhanced IQship shall be
paid in accordance with Section 6.4 set forth below.
Development and Enhancements. The Operator will improve and develop Enhanced
IQship from time to time throughout the duration of this Agreement in response
to suggestions and requests it receives from the Client, in accordance with
Section 6.
Initiation of Development Project. Either party may determine that initiation
of a Project is advisable (and the Operator shall have a duty to bring advisable
Projects to the attention of the Client). Accordingly, upon the initiative of
either party, and upon reasonable notice, the parties shall meet and confer, and
exchange information concerning the potential Project.
Operator Quotes; Payment Option. In the event the Client requests development
work outside a Project Plan pertaining to Enhanced IQship, the Operator shall
provide the Client with a quote for performing such work (a "Quote").
Binding Nature of Quote. The Operator shall be bound by its Quote, and upon
acceptance, the Client shall similarly be bound by such Quote; provided,
however, that adjustments to the Quote may be submitted for approval in
connection with the Change Order Process specified in Section 0.
Development Project Phases. The parties agree that the JPC shall determine the
planning and phases of any Development Services to be provided under this
Agreement.
Testing and Acceptance. The parties agree that the JPC shall determine and
implement a mutually acceptable testing and acceptance procedure including
without limitation a verification period, a procedure for corrections by the
Operator and appropriate remedies, all of which shall apply to all Deliverables
and Project Milestone Deliverables the Operator provides to the Client under
this Agreement. In the event that a dispute arises as to whether a Deliverable
or Project Milestone Deliverable meets the applicable Specifications, and/or the
appropriate remedy that should be invoked to correct any deficiency, the dispute
resolution procedures set forth in Section 20 shall be applied to resolve such
dispute.
Project Completion; Delays. The Operator shall use commercially reasonable
efforts to complete each Project within the time allotted in the Project Plan.
Each party shall promptly communicate to the other Party's Project Coordinators
and the JPC any difficulties that might affect the timely completion of any
milestone set forth in the Project Plan (as far in advance of such milestone as
is practical) and, where possible, estimate the likely or actual impact of such
difficulties, and detail any actions which might favorably resolve such
difficulties.
xlviii
Change Orders. The parties recognize that the design and development services
described in a Project Plan may need to be revised over time. Subject to
Section 0, either party may request changes to a Project Plan ("Change Order"),
and, in the Client's option such changes shall be implemented, with the parties
to negotiate in good faith a revised Quote (and other needed elements of a
Project Plan) incorporating such changes. No change(s) that would substantially
impact cost, functionality, scope of work, or milestone schedules shall be made
to any Project Plan without written approval from both parties.
Right to Terminate Project. The parties agree that the JPC shall determine
mutually acceptable terms for terminating a Project not pertaining to Enhanced
IQship (without otherwise affecting the terms of this Agreement).
Development Warranties. The Operator warrants that it shall perform and
complete its development work under this Section 6 (i) in accordance with
accepted professional standards, (ii) using appropriately qualified personnel;
(iii) utilizing commercially reasonable efforts to perform; and (iv) assigning
such personnel, facilities and resources as are reasonably necessary to
accomplish the development tasks. In addition, the Operator represents and
warrants that work which it conducts for Projects under a Project Plan shall
upon delivery meet any Acceptance Criteria expressed as such in such Project
Plan, and shall conform to any applicable Specifications.
INTELLECTUAL PROPERTY RIGHTS RESULTING FROM DEVELOPMENT
Unless otherwise agreed in a signed Project Plan, intellectual property rights
in a Project shall be as follows:
xlix
Client Sole Ownership. All intellectual property rights solely created or
solely conceived by the Client during a Project, shall be owned by the Client,
subject to the license to the Operator set forth in Section 0.
Operator Sole Ownership. All intellectual property rights solely created or
solely conceived by The Operator during a Project, shall be owned by the
Operator ("Operator Solely Owned IP Rights"), subject to the licenses granted to
the Client in Section 0.
Joint Ownership. For the purpose of this Section "joint" ownership with respect
to inventions and copyrights shall be defined in accordance with the then-
current United States patent law or copyright law, as applicable. Any
intellectual property rights jointly created or jointly conceived by both
Parties ("Jointly Owned IP Rights") shall be jointly owned and the use,
development, and exploitation of such Jointly Owned IP Rights shall be as
follows:
Use Within Project. In consideration of the Client's payment of associated
Development Fees, it is agreed and understood that Jointly Owned IP Rights
pertaining to Enhanced IQship shall be used exclusively (and on a royalty-free
basis) for the Client's purposes within Enhanced IQship or other Project under
this Agreement. For the avoidance of doubt, the Operator shall not use Jointly
Owned IP Rights pertaining to Enhanced IQship for the benefit of any person
other than the Client (and Authorized Users), except as provided in Section 0.
Use Outside of Project. The Parties shall negotiate in good faith terms and
conditions for the use, development, and exploitation of Jointly Owned IP Rights
pertaining to Enhanced IQship outside a Project.
PATENT PROSECUTION FOR JOINTLY OWNED IP RIGHTS.
The parties agree that the JPC shall determine a method for filing patent
applications and other means of formal protection with respect to any Jointly
Owned IP Rights which the parties deem to be worthy of seeking any such
protection.
Initial Filing; Subsequent Filings. The parties shall jointly determine the
country or jurisdiction within which the first patent application or other such
protection shall be filed and, which of the parties shall be responsible for the
preparation and filing of the patent application or other such application. The
parties shall also jointly determine which other countries or jurisdictions any
such application shall be filed in and which of the parties shall be responsible
for such other filing.
Disagreements Over Filing. If the parties cannot agree as to whether a
particular jointly owned IP Rights should be the subject of patent or other
formal protection, or cannot agree upon the countries or jurisdictions within
which such application shall be filed, either party may, on its own, seek such
patent or other protection in any desired country or jurisdiction, and the other
party shall cooperate with the party seeking such protection.
Issuing and Maintenance Costs. Unless otherwise agreed, all patent applications
or other formal protection for Jointly Owned IP Rights, whether pursued by all
parties or by one party, shall be jointly owned by all parties. The parties
shall mutually agree as to who shall pay for the cost involved in preparing,
filing, prosecuting, issuing and maintaining any such applications and any
resulting patents or other protection.
Annual Consultations. The parties shall consult with each other no less than
once per calendar year for the purpose of identifying Jointly Owned IP Rights
for which protection should be
l
sought, the countries or jurisdictions in which such protection should be sought
and in equalizing the costs involved in such protection.
Withdrawal of Interest. In case a party is not or no longer interested in
participating in a patent or patent application, it shall notify the other party
thereof, in writing, at the earliest practicable date, and shall forthwith
relinquish to the other party its rights to such patent or patent application,
then the other party shall have the right, at its expenses, to prosecute such
application or maintain said patent or patent application. The relinquishing
party agrees, at the other party's expense, to co-operate fully with the other
party to assist the other party in obtaining (by assigning all its rights title
and interest in the application), maintaining, defending and renewing such
patent or patent application.
PROPRIETARY RIGHTS AND CONFIDENTIALITY
Ownership of the Operator's Intellectual Property. The Client acknowledges
that, as between the parties and subject to Section 0, the Deliverables
including without limitation the Programs, any materials related to IQuator or
Enhanced IQship, including without limitation, IQuator or Enhanced IQship flow
charts, IQuator or Enhanced IQship logic diagrams, and IQuator or IQship source
code, and the Program Documentation including any new release or enhancement of
the Programs or the Program Documentation made by the Operator or any of its
Associated Companies and all copies thereof, in whole or in part (whether made
by the Operator or any third party) together with the copyright, trade secret
and all Intellectual Property Rights in such Program and Program Documentation
are and shall remain the exclusive property of the Operator and its Associated
Companies.
Specific Protection. Subject to Section 0, the Client acknowledges that, as
between the parties, the Deliverables and Programs are part of the Operator's
Confidential Information and Intellectual Property and that, without prejudice
to the generality of the foregoing, the specific design and structure of the
Programs, their interaction and the programming techniques employed in them are
trade secrets of the Operator and its Associated Companies.
Ownership of the Client's Intellectual Property. The Operator acknowledges
that, as between the parties and subject to Section 0, the Client's Confidential
Information and Client Contributions and all copies thereof, in whole or in part
(whether made by the Client or any third party) together with the copyright,
trade secret and all Intellectual Property Rights in such Confidential
Information or Client Contribution are and shall remain the exclusive property
of the Client and its Associated Companies.
Non-Disclosure of Operator Confidential Information. The Client shall keep
confidential and not (without the prior written consent of the Operator)
disclose or make available any Confidential Information of Operator including
without limitation the Programs or any materials related to IQuator or Enhanced
IQship, including without limitation, IQuator or Enhanced IQship flow charts,
IQuator or Enhanced IQship logic diagrams, and IQuator or IQship source code, in
any form to any third party, except those of the Client's employees who have a
need to know such information in the course of their employment; and shall
comply with any specific, timely request from the Operator regarding protection
of such Confidential Information and except as permitted under the Software
Escrow Agreement. It is agreed and understood that use of the Programs by
Authorized Users in accordance with the terms of this Agreement shall not
constitute a breach of this Section.
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Non-Disclosure of Client Confidential Information. The Operator shall keep
confidential and not (without the prior written consent of the Client) disclose
or make available any Confidential Information of the Client, in any form, to
any third party, except those of the Operator's employees who have a need to
know such information in the course of their employment and shall comply with
any specific, timely request from the Client regarding protection of such
Confidential Information.
Exceptions. The obligations set forth in this Section 0 shall survive the
variation, renewal, termination or expiration of this Agreement, but shall not
apply to any part of the Programs or any other Confidential Information which
(a) comes into the public domain through no fault of the receiving party, (b)
was rightfully known to the receiving party prior to disclosure by the
disclosing party, (c) is disclosed to the receiving party by a third party under
no obligation to the disclosing party and who has a right to disclose it, or (d)
was independently developed by the receiving party without reference to or use
of any Confidential Information. The receiving party may disclose the
Confidential Information of the disclosing party in response to a subpoena or
other governmental order, provided the receiving party promptly notifies the
disclosing party of the subpoena or order, to allow the disclosing party to seek
a protective or other order concerning such disclosure.
Return of Confidential Information. Except with respect to continuing licenses
under Section 0, and with respect to escrowed materials under Section 0, the
receiving party will return to the disclosing party or destroy all Confidential
Information of the disclosing party in the receiving party's possession or
control promptly upon the written request of the disclosing party on the earlier
of the expiration or termination of this Agreement. At the disclosing party's
request, the receiving party will certify in writing that it has fully complied
with its obligations under this Section.
CLIENT'S OBLIGATIONS
Delivery of Information. The Client shall deliver to the Operator such
information, including Confidential Information, of the Client that the Operator
and Client reasonably determine to be necessary or appropriate for the Operator
to perform the Services hereunder. The confidentiality of such Information
shall be protected under Section 0, and the Operator's use of such information
shall be subject to Sections 0.
Cooperation. The Client shall reasonably cooperate with the Operator in
development activities.
FEES AND PAYMENT
In consideration of performance of the Services by the Operator under this
Agreement, the Client shall pay the Operator the fees set forth in Attachment D.
Payment. The Client shall make payments to the Operator in accordance with
Attachment D subject to the condition that the deadlines set forth in Attachment
H shall have been met and the Operator shall have materially met any performance
standards adopted by the JPC in any Project Plans or otherwise, unless the
failure to meet those deadlines or performance standards is caused by Client or
outside the control of the Operator and not caused by the breach by the Operator
of its representations, warranties and covenants under this Agreement.
Expenses. Neither party shall be responsible for any expenses incurred by the
other party in connection with the provision of the Services, unless
specifically set forth in this Agreement, a Project Plan, or as approved in
advance by the party to be charged which approval shall not be
lii
unreasonably withheld or delayed. If the parties agree that the Client shall be
responsible for any of the Operator's out-of-pocket expenses, all reimbursements
shall be made in accordance with the Client's reimbursement policy, a copy of
which shall be provided to the Operator in respect to any expenses incurred by a
party (the "Party Requesting Reimbursement") for the benefit of the other party
(the "Reimbursing Party"); provided, however, that in no event shall a
Reimbursing Party be responsible for travel-related expenses incurred by the
Party Requesting Reimbursement within fifty miles of a principal office of the
Party Requesting Reimbursement.
Rate Review. On-Call Fees, Application Support Fees (on a per user basis), and
Transaction Fees shall be fixed for three (3) years, commencing on the Effective
Date of this Agreement. Thereafter, during the Term the Operator shall have the
right on an annual basis to adjust such Fees, provided that any increases
negotiated and agreed to shall be limited to the sum of cumulative percentage
increase in the U.S. Consumer Price Index plus seven hundred (700) basis points
for all prior years since the last rate increase but in no event shall such Fees
be higher than Operator's standard rate. Development Fees are not subject to
review.
Taxes. As an independent contractor, the Operator alone shall be responsible
for payment of all federal, state and local taxes of all types and kinds
applicable to such fees.
WARRANTIES AND REPRESENTATIONS
Operator Warranties. The Operator warrants and represents to the Client on a
continuing basis that:
The Operator is a corporation duly organized, validly existing and in good
standing under the laws of the State of Delaware. The Operator has full right,
authority and power to enter into this Agreement and each agreement, document
and instrument to be executed and delivered by the Operator pursuant to this
Agreement and to fulfill is obligations contemplated hereby and thereby. The
execution, delivery and performance by the Operator of this Agreement and each
such other agreement, document and instrument delivered pursuant to this
Agreement have been duly authorized by all necessary action of the Operator and
no other action on the part of the Operator is required in connection therewith;
its performance of the Services hereunder, and its license and development of
the Programs and Deliverables to the Client and Authorized Users in accordance
with this Agreement will not to the best of its knowledge infringe or violate
the Intellectual Property Rights or the data privacy of any third party or
otherwise violate legal requirements;
it has the facilities, systems, know-how and resources to perform the Services
in a competent and professional manner;
the Programs have been designed and fully tested in such a manner that they
will, without interruption or manual intervention, continue to operate
consistently, predictably and accurately and in accordance with all of the
requirements of this Agreement;
the Deliverables and the Services (i) will be of satisfactory quality; (ii) will
meet, in all material respects, (a) the Specifications set forth in Attachment
A, (b) any applicable Project Plan, and (c) with respect to Enhanced IQship,
also the Specifications set forth in Attachment I; (iii) will comply with all
applicable Service Levels as specified in Attachment B; and (iv) will comply, in
all material respects, with the parties' discussions, as embodied in written and
approved design and functional layout documents; and
liii
make commercially reasonable efforts to ensure that the Deliverables do not and
shall not contain, at the time of installation, any timer, clock, counter, or
other limiting design or routine, nor any virus, that could impair the integrity
of the Client's information processing systems and data (or any portion thereof)
or cause it to become erased, inoperable, impaired, or otherwise incapable of
being used in the full manner for which it was designed and licensed.
The Operator assumes no responsibility for errors or bugs in data furnished by
the Client.
Client Warranties. The Client warrants and represents to the Operator on a
continuing basis that:
it has the authority to enter into this Agreement;
its performance of its obligations hereunder and its provision of the data and
other information to the Operator will not to the best of its knowledge infringe
or violate the Intellectual Property Rights or the data privacy of any third
party or otherwise violate legal requirements; and
it will use commercially reasonable efforts to ensure that any applications or
data transferred by the Client to the Operator will not contain any virus or
similar defect that could impair the integrity of the Operator's information
processing systems and data (or any portion thereof) or cause it to become
erased, inoperable, impaired, or otherwise incapable of being used in the full
manner for which it was designed.
INDEMNITY
Operator's Indemnification Obligations. Operator will indemnify, defend, and
hold harmless the Client against any cost, expense (including reasonable
attorney's and expert fees), or damage arising from any claim or action brought
by a third party against Client that the normal operation, possession or use of
the Programs as provided by Operator by or on behalf of the Client infringes the
Intellectual Property Rights of a third party (an "Intellectual Property
Infringement Claim") and which is not attributable to a breach by the Client of
any of its representations, warranties or covenants under this Agreement,
provided that Client:
gives notice as soon as possible to the Operator of any Intellectual Property
Infringement Claim to the extent it becomes aware of the same, provided,
however, that to the extent the failure to give prompt notice does not prejudice
the Operator, the Operator shall remain liable for its indemnification
obligation hereunder;
gives the Operator the sole responsibility for the conduct of the defense to the
Intellectual Property Infringement Claim and will not at any time admit
liability or otherwise settle or compromise or attempt to settle or compromise
said Claim except upon the express consent or instructions of the Operator; and
acts in accordance with the reasonable instructions of the Operator and gives to
the Operator such assistance as it shall reasonably require in respect of the
conduct of said defense including, without prejudice to the generality of the
foregoing, the filing of all pleadings and other court process and the provision
of all relevant documents.
Client Expense Reimbursement. The Operator shall reimburse the Client for its
costs and expenses incurred in complying with the provisions of Section 0.
Operator Exceptions. The Operator shall have no liability to the Client with
respect to an Intellectual Property Infringement Claim to the extent such Claim
(a) is caused by a breach by the Client of its obligations under this Agreement
or (b) would have been avoided but for (i) use or combination of the Programs
with any other products or software not provided by the
liv
Operator or (ii) modification of the Programs after delivery by the Operator,
unless such use, combination and/or modification is made or authorized in
advance in writing by the Operator.
Reducing Exposure. In the event of an Intellectual Property Infringement Claim
(and without prejudice to the Client's rights), the Operator may at its own
expense and option either:
procure the right for Programs and Deliverables to continue to be used by or on
behalf of the Client in the manner provided in this Agreement; or
make such alterations, modifications or adjustments to the Programs and
Deliverables so that they become non-infringing without incurring a material
diminution in performance or function; or
replace the Programs and Deliverables with non-infringing substitutes provided
that such substitutes do not produce a material diminution in performance or
function.
Limitation. THE FOREGOING PROVISIONS OF SECTIONS 13.1 THROUGH 13.3 STATE THE
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ENTIRE LIABILITY AND OBLIGATION OF THE OPERATOR AND THE EXCLUSIVE REMEDY OF
CLIENT, WITH RESPECT TO ANY ALLEGED OR ACTUAL INFRINGEMENT OF PATENTS,
COPYRIGHTS, TRADE SECRETS, TRADEMARKS OR OTHER INTELLECTUAL PROPERTY RIGHTS BY
THE DELIVERABLES.
Client Indemnification Obligations. Client will indemnify, defend, and hold
harmless the Operator against any cost, expense (including reasonable attorney's
and expert fees), or damage arising from any claim or action brought by a third
party against the Operator relating to Client Data, Client Contributions, or
Client domain name and which is not attributable to a breach by the Operator of
any of its representations, warranties or covenants under this Agreement (a
"Claim") provided that Operator:
gives prompt notice to the Client of any Claim to the extent it becomes aware of
the same, provided, however, that to the extent the Operator's failure to give
prompt notice does not prejudice the Client, the Client shall remain liable for
its indemnification obligations hereunder;
gives the Client the sole responsibility for the conduct of the defense to the
Claim and will not at any time admit liability or otherwise settle or compromise
or attempt to settle or compromise such Claim except upon the express consent or
instructions of the Client; and
acts in accordance with the reasonable instructions of the Client and gives to
the Client such assistance as it shall reasonably require in respect of the
conduct of said defense including, without prejudice to the generality of the
foregoing, the filing of all pleadings and other court process and the provision
of all relevant documents.
Operator Expense Reimbursement. The Client shall reimburse the Operator for its
costs and expenses incurred in complying with the provisions of Section 0.
TERM
Initial Term. This Agreement shall become effective on the Effective Date and
shall remain in force for a fixed term expiring sixty (60) months after the
Effective Date (the "Initial Term")
Renewal Terms. This Agreement will automatically renew for successive twelve
(12) month periods (an "Additional Term") unless either party gives written
notice to the other at least ninety (90) days before the end of the Initial Term
or the Additional Term. The Initial Term and any Additional Terms are
collectively referred to as the "Term."
OPERATOR FAILURES; PERFORMANCE CREDITS; ESCROW; SECURITY INTEREST.
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Institution of Service Level Failures; Performance Credits. The parties agree
that the JPC shall determine mutually acceptable Service Levels and Service
Level benchmarks for the performance of this Agreement and Performance Credits
for failure to meet such Service Level benchmarks.
Escrow. At Client's sole expense and within ninety (90) days of the Effective
Date, the Operator shall deposit the source code for the Programs (and all
relevant Modifications thereof) into a source code escrow account (the "Escrow
Materials") pursuant to a Software Escrow Agreement (Attachment E) to be
mutually agreed by the parties. The Operator shall update the Escrow Deposit
semiannually or at the reasonable request of Client.
Escrow Release. The Escrow Materials shall be released from escrow, under the
terms stipulated in the Software Escrow Agreement: (a) if this Agreement has
been lawfully terminated by the Client in accordance with Section 0; or (b) if
the Operator entirely ceases to do business in the ordinary course
(collectively, an "Escrow Release").
License and Development Rights for Escrowed Materials; Phase-Out of Transaction
Fees. The Client shall be entitled to use the Escrow Materials, upon their
release from escrow, in accordance with Section 0 and subject to the terms and
conditions of this Agreement; provided, however, that upon such release, the
Client shall have the additional right to modify, adapt, and develop the
Programs solely for the Permitted Purposes including the uses of its Authorized
Users. The Client shall continue to pay Transaction Fees for a period of five
(5) years after such release from escrow, after which point no further
obligations to the Operator concerning the Escrow Materials shall remain.
TERMINATION
Termination for Cause. Either party may terminate this Agreement at any time by
written notice to the other if that other party commits a material breach of
this Agreement which it fails to remedy within thirty (30) days of receiving
written notice requiring it to do so.
Operator Termination for Cause. The Operator may terminate this Agreement for
cause at any time by written notice to the Client if:
the Client is more than thirty (30) days overdue with payment of any installment
of the fees as specified in Attachment D, provided the Operator has given the
------------
Client at least thirty (30) days notice that such payment is overdue and that
termination will result if payment is not made within that period of at least 30
days;
without justification the Client challenges the Operator's ownership of any of
the proprietary rights in the Deliverables including without limitation the
Standard Programs, any Modification or any related material not covered by
Section 0.
Institution of Client Termination for Cause. The parties agree that the JPC
shall develop a mutually acceptable basis for terminating this Agreement by
Client for cause at any time on written notice if there are multiple and chronic
Service Level Failures of the same nature within any one-hundred and eighty
(180) day period which remain uncured for forty-five (45) days.
Bankruptcy. Subject to any superseding provision of U.S. bankruptcy laws,
including ▇▇▇▇▇ ▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇ Code, either party may terminate this
Agreement at any time by written notice to the other if the other party (a)
undergoes an insolvency proceeding that is not dismissed within ninety (90)
days; (b) files a petition in bankruptcy, (c) has a receiver or manager
appointed for
lvi
the whole or any part of its assets or business or (d) makes an
assignment for the benefit of all or substantially all of its creditors.
EFFECT OF TERMINATION OR EXPIRATION
Transition Assistance on Termination or Expiration. Upon expiration or
termination of this Agreement for any reason, including a breach by the Client
and if all due and owing payments have been made to Operator, the Operator
shall, if so requested by the Client, provide assistance to the Client as
follows:
Transition Assistance. The Operator shall provide the Client with reasonable
training and other assistance to minimize disruption in the transition of the
Services, the Programs, and all third-party contracts listed on Attachment G (as
updated) to the Client or a third-party designated by the Client. Training may
be provided from the time of the Client's request to the date of termination or
expiration and for up to six additional months (the "Transition Period")
following termination or expiration. If the termination was caused by the
Operator's breach (either under Section 0 or Section 0), the Operator shall
provide such transition services without cost to the Client (without prejudice
to the Client's other remedies) provided that all other payments due prior to
termination or expiration have been paid to Operator. If the termination was
caused by the Client's breach, the Client shall pay to the Operator prior to the
commencement of such transition services (a) all payments otherwise due prior to
such termination or expiration and (b) Operators' reasonable estimated costs of
providing such services provided that if the actual costs differ from such
estimate, Client or Operator shall reimburse or refund the other party such
difference. Otherwise, all such training services shall, for purposes of this
Agreement, be deemed "On-Call" Services, and shall be compensated in accordance
with Attachment D.
The Client's Right to Hire the Operator Employees. The Operator acknowledges
that the persons who may be most valuable to the Client upon any termination or
expiration of this Agreement are members of the Operator's Project Staff. The
Operator agrees that only upon (a) the expiration of the Term or (b) the lawful
termination of this Agreement by the Client pursuant to Section 16.1, 16.3 or
16.4, the Client shall have the right to solicit members of the Operator's
Project Staff for employment by the Client. The Operator agrees that it shall
not interfere with any such solicitation efforts by the Client and shall
cooperate by executing appropriate waivers with respect to any contractual or
other non-solicitation or non-competition rights (but not intellectual property
or confidentiality rights) it might have with respect to its Project Staff, or
other documents reasonably requested by the Client.
Right of Immediate Payment. If the Operator terminates this Agreement for the
Client's default, and the Client has not disputed such breach, the Client shall
immediately pay the Operator for all Services rendered through the termination
date.
Survival. The following provisions shall survive the termination or expiration
of this Agreement: Sections 1, 2.4, 2.8, 3.2, 3.3, 3.4, 3.5, 3.6, 3.8, 7, 8, 9,
11, 12, 13, 15, 17, 18, 20 and 21 in accordance with their terms.
No Waiver. Termination of this Agreement shall be without prejudice to any
right of either party to bring an action, which has arisen prior to termination,
including without limitation, an action for any outstanding payment obligations.
Re-Allocation of Services; Transfer of Hosting. Without limiting Section 17.1,
at any time during the Initial Term or any Additional Term of this Agreement,
the Client may, at its expense,
lvii
elect to discontinue the Operator's hosting and Application Service Provider
services under this Agreement and transfer such services either in-house to the
Client's facilities or to a third-party's facilities (provided such third-party
is bound to confidentiality restrictions no less protective of the Operator's
interests than those provided in this Agreement) by providing ninety (90) days
notice to Operator and upon payment of a mutually acceptable license fee for
IQuator, whereupon the Operator shall transfer, convey and deliver to the Client
the Communication and Network Facilities dedicated exclusively to Client, and
all software and data required for the Client or a third party to perform such
hosting and Application Service Provider services, free and clear of any liens
or claims of third parties. If such request is made upon expiration of the
Initial Term, the Client shall continue to pay Application Support Fees and the
parties shall agree to mutually acceptable license fee for IQuator after the
transfer of the Programs from the Operator's servers to servers controlled by
the Client.
LIABILITY
No Implied Warranties. THERE ARE NO WARRANTIES (EXPRESS OR IMPLIED), CONDITIONS
OR OTHER TERMS REGARDING ANY GOODS OR SERVICES INCLUDING WITHOUT LIMITATION THE
DELIVERABLES, CLIENT DATA, CLIENT CONTRIBUTIONS, THE PROGRAMS, THE STANDARD
PROGRAMS, IQSHIP, ENHANCED IQSHIP AND IQUATOR SUPPLIED BY THE OPERATOR TO THE
CLIENT OR BY THE CLIENT TO THE OPERATOR UNDER THIS AGREEMENT, WHETHER AS TO
DESCRIPTION, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE,
NONINFRINGEMENT OR OTHERWISE EXCEPT AS SPECIFICALLY STATED IN THIS AGREEMENT.
ANY CONDITION, WARRANTY OR OTHER TERM REGARDING ANY SUCH GOODS OR SERVICES WHICH
MAY OTHERWISE BE IMPLIED INTO OR INCORPORATED WITHIN THIS AGREEMENT WHETHER BY
STATUTE, UNDER COMMON LAW OR OTHERWISE, IS HEREBY SPECIFICALLY EXCLUDED.
Limitation of Liability. EXCEPT FOR A PARTY'S INDEMNIFICATION OBLIGATIONS UNDER
SECTION 13, IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR
SPECIAL, INDIRECT, INCIDENTAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES OF
ANY NATURE WHATSOEVER CONNECTED WITH OR RESULTING FROM THE PERFORMANCE OR NON-
PERFORMANCE OF THIS AGREEMENT, INCLUDING BUT NOT LIMITED TO DAMAGES OR CLAIMS IN
THE NATURE OF LOST REVENUE, INCOME OR PROFITS OR LOSS OF USE, LOST BUSINESS
OPPORTUNITY OR COST OF SUBSTITUTE GOODS, REGARDLESS OF WHETHER THE OTHER PARTY
HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR NOT. Except for either
party's breach of confidentiality obligations, the liability of either party for
any loss or damage (other than death or personal injury) arising out of this
Agreement including without limitation loss or damage arising out of any of its
negligence or breach of contract in relation to acts or omissions concerning
this Agreement shall in no circumstances exceed the sum equal to the aggregate
for all fees paid by the Client to the Operator hereunder.
Exceptions. Nothing in this Agreement shall serve to exclude or restrict the
liability of either party for death or personal injury resulting from
negligence.
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INSURANCE
Insurance Maintained by the Operator. During the term of this Agreement, the
Operator shall maintain at its own expense at least the equivalent commercial
general liability insurance as that which is in effect as of the Effective Date.
Insurance Documentation. The Operator shall, upon the Client's request, furnish
the Client with certificates of insurance and other appropriate documentation
(including evidence of renewal of insurance) evidencing all coverage referenced
herein. Such certificates and other documentation shall include a provision
whereby 30 days' notice must be received by the Client prior to coverage
cancellation or material alteration of the coverage by the Operator or the
applicable insurer. Such cancellation or material alteration shall not relieve
the Operator of its continuing obligation to maintain insurance coverage in
accordance with this Section 0.
DISPUTE RESOLUTION
Any controversy of claim between the parties arising from or in connection with
this Agreement, whether based on contract, tort, common law, equity, statute,
regulation, order or otherwise (a "Dispute"), shall be resolved in accordance
with this Section 0.
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Submission of Dispute to JPC; Escalation to Upper Management. All Disputes
shall be submitted in the first instance to the JPC for resolution. A party
with a Dispute shall prepare a brief written summary of the Dispute, and present
this summary to the JPC. If the JPC is unable to resolve the Dispute within ten
(10) days of receipt of such submission, then the each party shall promptly
appoint a designated representative in upper management who shall meet for the
purpose of endeavoring to resolve such Dispute. The designated representatives
shall meet as often as the parties reasonably deem necessary to discuss the
problem in an effort to resolve the Dispute without the necessity of any formal
proceeding. In the event that such representatives are unable to resolve the
Dispute within 30 days after the Dispute is submitted to them, or if after 10
days either party determines in good faith that such representatives are
unlikely to be able to resolve such matter, the Dispute (a) shall be submitted
to arbitration in accordance with Section 0, or (b) shall be submitted to
judicial determination in accordance with Section 0 if the Dispute involves
Intellectual Property Rights. With respect to any controversy, Dispute, lawsuit
or other action between the parties concerning this Agreement or the subject
matter hereof, either party may request that, in addition to determining the
respective rights and obligations of the parties, the finder of fact determine
which party is the "prevailing party" and the prevailing party will be entitled
to recover from the other party its expenses, attorney's fees and costs incurred
in connection with the investigation, prosecution and defense thereof, inclusive
of those referred to at Section 13 hereof, or the enforcement or collection of
any judgment or award rendered therein.
Arbitration. Except for a Dispute relating to Intellectual Property Rights,
which shall be subject to the provisions of Section 0, the parties agree that,
if they are unable to resolve any Dispute as contemplated by Section 0, then
such Dispute shall be submitted to mandatory and binding arbitration in the San
Francisco, California. The arbitration shall be in accordance with the Judicial
Arbitration and Mediation Services/Endispute ("JAMS"). Any award rendered by
the Arbitration Panel will be final, conclusive and binding upon the parties and
any judgment thereon may be entered and enforced in any court of competent
jurisdiction.
Jurisdiction in Intellectual Property Disputes. Any legal suit, action or
proceeding arising out of or relating to Intellectual Property Rights under this
Agreement shall be commenced in a federal court in the Northern District of
California or in state court in San Francisco, California, and each party hereto
irrevocably submits to the exclusive jurisdiction and venue of any such court in
any such suit, action or proceeding and waives any right which it may have to
transfer or change the venue of any such suit, action or proceeding, except that
in connection with any suit, action or proceeding commenced in a state court,
each party retains whatever right it may have to remove such suit, action or
proceeding to federal court in the Northern District of California.
Governing Law. This Agreement is to be construed in accordance with and
governed by the internal laws of the State of California (as permitted by
Section 1646.5 of the California Civil Code or any similar successor provision)
without giving effect to any choice of law rule that would cause the application
of the laws of any jurisdiction other than the internal laws of the State of
California to the rights and duties of the parties.
GENERAL PROVISIONS
Assignment. Neither party shall assign any of its rights or delegate any of its
duties under this Agreement without the prior written consent of the other
party, which shall not be unreasonably
lx
withheld. Notwithstanding the foregoing, either party may assign its rights and
delegate its duties under this Agreement without such consent to an acquirer or
successor (by sale, merger or otherwise) to all or substantially all of either
(a) such party's business to which the Agreement relates or (b) in the case of
Client, the business of Pacer Stacktrain. Any purported transfer, assignment or
delegation in violation of the foregoing will be null and void and of no force
or effect.
Entire Agreement; Amendment. This Agreement constitutes the entire agreement
between the parties and supersedes all prior agreements, understandings and
communications between the parties with respect to the subject matter hereof.
No modification or amendment of the Agreement shall be binding upon a party
unless made in writing and executed by a duly authorized representative of that
party.
Force Majeure. Notwithstanding any other term of this Agreement, neither party
shall be liable for delay or failure to perform any of its obligations under
this Agreement, due to Acts of God, war, riot, embargoes, acts of civil or
military authorities, fire, flood, typhoon, wind storm, snow storm, blizzard,
hurricane, or other cause that is outside the control of the party and could not
be avoided by the exercise of due care. Should any delay in performance occur
arising out of any of the foregoing events, a party's obligations that are
dependent upon performance of the delayed event by the other party shall be
extended correspondingly. Notwithstanding the occurrence of any of the events
set forth in this Section, the parties shall at all times use reasonable efforts
to perform all obligations under this Agreement in a timely manner, taking
account of the existing circumstances. Moreover, it is agreed and understood
that force majeure events under this Section 0 shall under no circumstances
excuse the Operator from its disaster recovery obligations under Section B.7.4.
Severability. The invalidity or unenforceability of any term of or any right
arising pursuant to this Agreement shall not adversely affect the validity or
enforceability of any of the remaining terms or rights.
Headings. Clause headings are for convenience only and do not form part of this
Agreement.
No Partnership or Agency. Nothing in this Agreement shall constitute or create
a joint venture, partnership, or any other similar arrangement between Operator
and Client. Neither party is authorized to act as agent or bind the other party
except as expressly stated in this Agreement.
Counterparts. This Agreement may be executed in any number of counterparts with
the same effect as if both parties hereto had signed the same document. All
counterparts will be construed together and will constitute one agreement.
IN WITNESS WHEREOF, the parties have each caused this Agreement to be
signed and delivered by their duly authorized representatives.
Client Operator
====== ========
PACER INTERNATIONAL, INC. QIVA, INC.
By:______________________ By:_______________________
Name:____________________ Name:______________________
lxi
(printed) (printed)
Title: _________________ Title: ___________________
Date: __________________ Date: ___________________
lxii
Attachment A: List of Deliverables
A.1. Enhanced IQship
It is agreed that Enhanced IQship shall be an integrated Transport Management
System, which will be prepared and modified from the IQship by the Operator to
meet the specific business requirements of the Client. Operator will provide
this service in accordance with the Software License, Development, Support, and
Information Service Provider Agreement (the "Agreement") as part of the Services
defined therein (and of which this Attachment A is a part).
Operator shall develop, maintain and support a database application and
associated Programs for the Client based upon functionality that will be
determined and requested during the period of this Agreement. Such
functionality, and resulting development, shall be agreed upon by the Parties,
undertaken, and completed in accordance with Section 6 of the Agreement.
A.1.1. Enhanced IQship Project Plan
The Parties shall use best efforts to negotiate and agree upon a Project
Plan (as set out in Section 6 of the Agreement) for Enhanced IQship within
sixty (60) days of the Effective Date.
A.1.2. Enhanced IQship Functionality
Enhanced IQShip as prepared and developed by the Operator shall perform the
following functions:
Quotation Registration
Booking Registration
Tariffing
Contribution Analysis
Import and Export Documentation
Equipment Control
Maintenance & Repair
Intermodal Transport
Customer Information System
Executive Information System
General System Maintenance
A.1.3. Enhanced IQship Specifications
Enhanced IQship shall meet the specifications set out in the Enhanced
IQship Project Plan, which shall include, but not be limited to, the
specifications reflected in the document entitled "Summary," and attached
hereto as Attachment I.
A.2. IQuator Web Site
It is agreed that IQuator is a common information service to be provided by
Operator to various clients, including the Client specified in the Agreement.
lxiii
Operator shall develop, maintain and support a web-based database application
and associated web pages for the Client based upon functionality outlined in
this Attachment A.
A.3. IQuator
The business model supported by the service application which includes the data
translation engine, data objects, event management systems, reporting and
analytics, and the alerts engine and will be called "IQuator."
A.4. IQuator Functionality
IQuator as provided to various clients and to the Client, shall perform the
functions in the latest release of IQuator in accordance with industry-accepted
standards.
A.5. Accounting Systems
Operator will advise Client and assist in the selection of a financial
accounting system.
A.6. OLAP Systems
At the request of Client, Operator will make available OLAP resources and
will provide these resources at rates which are equal to or less than the
standard billing rate in place at such time. Operator recognizes that Client
will receive a discounted rate based upon the amount of days OLAP resources are
utilized.
lxiv
Attachment B: Required Service Levels
B.1. Introduction and Scope; Service Levels
This Attachment B details the levels of service ("Service Levels"), which
have been agreed between the Client and the Operator for the provision by
the Operator of Services as defined in the Software License, Development,
Support, and Information Service Partner Agreement (the "Agreement") (of
which this Attachment B is a part) to the Client.
In order to maintain the necessary service level standards, the Operator
will provide the Client with a fixed team of professionals (in accordance
with Section 0) for the duration of the Agreement and this Services Level
Agreement (the "Service Agreement").
B.2. Areas of Responsibility
B.2.1. Scope of Service Level Agreement
This Service Agreement does not extend to services provided to
the Operator or the Client by third parties selected by the
Client, although co-operation will be sought in meeting the
response levels embodied within the spirit of this Service
Agreement. The Operator shall be responsible for ensuring that
third party vendors and service-providers selected by the
Operator meet or exceed these Service Levels.
B.2.2. Application Support Desk
At all times, the Client's first point of contact with the
Operator for all issues within the scope of this Service
Agreement with respect to the Programs (including Enhanced
IQship), including requests for support and reports of faults,
will be the Application Support Desk.
The Client will be provided with an e-mail address for the
Application Support Desk. This is the preferred means of
contact for non-critical requests for support and reports of
faults. The Client will, however, also be permitted to submit
requests for support and reports of faults by telephone and
facsimile.
Notification of changes e-mail addresses, telephone and
facsimile numbers will be made as necessary.
The Client should ensure that up to date contact details for
its key users are made available to the Application Support
Desk. The Client shall be entitled to designate a reasonable
number of key users (which may include Authorized Users). The
Client shall use commercially reasonable efforts to direct High
priority faults and requests for support through key users. It
is agreed and understood, however, that any Client user or
Authorized User shall be entitled to support under this
Agreement.
B.3. Definition of Terms
B.3.1. ASP Center
For the purpose of this Service Agreement, the term "ASP
Center" shall mean the facility
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that manages the delivery of associated services from the
Operator and its Associated Companies. The ASP Center shall be
regarded as part of the Operator.
B.3.2. Support Services
Assistance and support by trained and experienced operations,
networking and applications staff of the Operator in the
provision of Services under this Service Agreement and the
Agreement.
B.3.3. Service Availability
B.3.3.1. Up - time
The period during which the Programs, systems and/or
networks referred to in this Service Agreement shall be
available, subject to the service levels and qualifications
described.
B.3.3.2. Down - time.
The periods during which the Programs, systems,
applications, and/or networks referred to in this Service
Agreement are unavailable either because of planned losses
(e.g. back-ups, notified maintenance requirements) or
unexpected service Interruptions.
B.3.4. Critical Business Periods
The periods during which the maintenance of the systems and
applications, and the provision of Services, are at their most
critical in the view of the Client.
B.3.5. Fault Prioritization.
The following fault priorities and their meanings are used in
this Service Agreement:
B.3.5.1. High - Major Business Impact
The highest priority fault causing a direct or indirect
impact on revenue gathering or revenue recognition services,
and/or causing the Client to be unable to perform or having
a significant impact on the Client's ability to perform its
primary business function until restoration of the system,
or service, affected.
B.3.5.2. Medium - Restricted Business Impact
Faults that are restricted to a single user, or if more than
one user is affected, that a "workaround" is available
allowing the Client to continue to make use of the Programs.
B.3.5.3. Low - No Business Impact
Faults that are recognized as minor functional or design
anomalies, where there is no discernible impact on the
Client's ability to conduct normal business.
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B.4. Guaranteed Processing and Availability Times
B.4.1. Application Response Times
The Operator will ensure that the systems, applications, and
networks comprising the Programs provide an operationally
realistic environment within which the Client can conduct and
support its business. The Operator will exploit opportunities
to improve the performance of the Deliverables and Programs
wherever appropriate. To this end, the Client will provide
response time information to the Operator in support of
pursuing operational improvement.
The Operator will not be held responsible for Internet
performance outside of the Operator's control. The Operator
shall be responsible for the performance of any internet
service providers or other intermediaries selected by the
Operator.
B.4.2. Query Response Times
The Operator's objective is that 100% of all data queries by
the Client to the Operator in accordance with the Services will
provide a properly responsive result in a reasonable amount of
time (from submission of the query).
This objective shall be monitored and benchmarked for the
purpose of this Service Agreement from within the Operator's
Local Area Network, as the speed of the Internet is not under
the control of Operator.
The Operator shall use commercially reasonable efforts to
obtain this objective.
B.4.3. Guaranteed Up- Times
Operator commits to providing 99.4% service availability, Up-time
of the systems, applications, and networks excluding planned loss
Down-time. This commitment provides for a maximum of 53 hours
Unexpected Service Interruption Down-time per year based on running
the systems and applications 24 hours per day and 365 days per
year.
The Operator will have an Agreement in place with an Internet
Service Provider (ISP) that includes guaranteed service
availability and maximum response times (for major United States
areas) to ensure high levels of Internet performance. However,
Operator cannot guarantee the performance and/or availability of
local ISPs employed by the Client.
The Operator represents and warrants that it has service agreements
covering all application and database servers, which provide for
onsite response times sufficient to meet these Service Levels. The
Operator further represents and warrants that it also employs
built-in resilience for its Communications and Network Facilities,
including the use of redundant components, such as backup servers,
mirror disks, and other components.
B.4.4. Downtime
Unexpected Service Interruption Down-time refers to any periods
within the contracted hours during which the applications,
systems and networks referred to in this Service Agreement or
any of them are unavailable because of losses which are
unplanned and not
lxvii
sanctioned by the Client.
The Operator will notify the Client of scheduled Down-time for
planned losses, such as upgrades and maintenance ("Scheduled
Downtime"), by giving the Client at least five (5) days prior
written notice. Wherever possible Scheduled Down-time will be
scheduled for overnight on Saturdays and limited to a maximum
of 8 hours.
All down-time without said 5-day prior written notice shall be
considered Unexpected Service Interruption Down-Time.
Any Down-time beyond the planned completion time will be
considered Unexpected Service Interruption Down-time and will
be subject to the usual Down-time reporting arrangements,
escalation, fault prioritization, and support services provided
under Section B.5.
The Operator will notify the Client of any emergency hardware
and software changes and will provide the Client a recommended
recovery strategy. In these circumstances Operator will
implement recovery with the minimal notice, and will use its
best efforts to avoid the Client's critical business periods.
All Unexpected Service Interruption Down-time will be recorded
within the availability statistics, recorded and maintained by
the Application Support Desk in Application Support Desk log
and will identify the cause of the fault, the remedial action
taken and any preventative action to avoid a recurrence of the
fault.
B.4.5. Operator Application Support Desk
Upon delivery of any portion of the systems, applications, and
networks comprising the Deliverables, with the exception of any
Scheduled Down-time the Application Support Desk will be
operational during the hours 06:00 to 20:00 PST, Mondays to
Fridays, excluding United States Public Holidays. At all other
times support for critical calls only will be provided by means of
an on-call system.
All support calls should be directed to the Application Support
Desk in the first instance where they will be evaluated, recorded
and either fixed or escalated as necessary.
B.4.6. Performance Reports
The Operator will provide the Client with monthly Performance
reports related to help desk issues, system performance,
communication bandwidth utilization, and other information
necessary or useful to the Client to verify the Operator's
compliance with Service Levels.
B.5. Support Services
B.5.1. Fault Prioritization
According to the circumstances each fault reported to the
Application Support Desk will be classified as one of the
following priorities by either the Client or the ASP Center.
(Once given, these priorities may only be changed by agreement
between the parties):
1xiii
B.5.1.1. High - Major Business impact.
B.5.1.2. Medium - Restricted Business Impact.
B.5.1.3. Low - Request for information.
The full definition of each of these classifications is
provided in section B.3.5.
B.5.2. Response Times
Times for response to the Client by the Operator from the
Operator's Application Support Desks for each classification of
fault will be as follows:
B.5.2.1. High - Immediate
B.5.2.2. Medium - Within 1 working day, although "work-around"
must be implemented immediately.
B.5.2.3. Low - Within 3 working days unless otherwise negotiated.
A response time is defined as (a) the time from the Client's
call to (b) the latest time at which the fault starts to be
addressed by the personnel staffing the Operator Application
Support Desk previously designated to resolve a particular type
of fault or otherwise best able to resolve the fault. For
responses to third party reports of faults to the Operator
Application Support Desk, response time will be measured from
the time the initial call is logged with the Client. In view of
the variety of issues that can arise there can be no guarantees
of fix times, although every effort will be made to minimize
disruption to the Client and its customers.
The Operator shall report the ongoing status of its response,
and such reports shall be on the following frequency: (a) "High
Fault" - every three hours; (b) "Medium Fault" - every three
business days; and (c) "Low Fault" - on a weekly basis.
Upon notice or recognition of notice of a fault, the Operator
shall promptly reply to the Client by e-mail, phone, or
facsimile to acknowledge receipt of the Client's request for
support.
B.5.3. Escalation Procedures
Faults accepted for resolution by the Application Support Desk
(i.e. those covered by this Service Agreement and which are not
local to the Client), which fail to be resolved, will be
escalated by means of e-mail, telephone or facsimile to
Application Support Desk management for resolution after the
periods shown:
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B.5.3.1. High Initial Acceptance + l hour
B.5.3.2. Medium Initial Acceptance + 1 working day
B.5.3.3. Low Initial Acceptance + 6 working days
The Application Support Desk log will reflect the escalation
action taken. (Note that the responsibility for communicating
the escalation action taken to local users rests with the
originator of the notification).
B.6. Systems Procedures/Administration
B.6.1. Account set-up
New user accounts will only be issued by the Application
Support Desk in response to requests initiated by key users
either through the medium of an ACCOUNT REQUEST template
(available on e-mail), or through Notes (for trained users).
The Application Support Desk will set up the Account for a user
within six (6) hours of receiving the request. In emergencies a
faster response can be negotiated between the parties. The
Application Support Desk will notify the key user of any
difficulty in setting up accounts, by means of Notes, telephone
call, or e-mail, as appropriate.
B.6.2. Changes to Access Rights
Access to the systems applications, Client Data, and networks
comprising the Deliverables, once established, should only be
altered by agreement between the Application Support Desk and
the key users. The Application Support Desk will respond to the
request by specifying the change within six (6) hours of
notification or, if needed sooner, by negotiation between the
parties.
B.6.3. Password changes
Password changes for a user's own password (e.g. in the case of
forgetting) will be undertaken by the Application Support Desk
upon receipt, normally by e-mail but optionally by telephone.
All notifications contain a temporary password which the user
must change, to one of his/her own, upon receipt. This service
may eventually devolve to key users, upon written agreement
between both parties.
B.6.4. Account Deletions
The Client is responsible for informing the Operator when an
employee leaves its employ. In the case of dismissal, the
user's departmental manager or key user must advise the
Application Support Desk IMMEDIATELY. In all cases of employee
departure, the account will be disabled by the Application
Support Desk immediately upon receipt of the notification.
B.6.5. System Changes Initiated by the ASP Center
The ASP Center will notify key users of changes to security
provisions at least five (5) working days before
implementation. Key users are required to pass on this
information
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to end-users if relevant.
B.6.6. Applications version patches
All version patches to the Applications that impact the Client
will be tested by the Operator and approved for production at
the Client's test system by the Client's key user(s). Patches
will be implemented only if all key user(s) approve the changes
after testing them.
B.6.7. Operating System and Database Upgrades
All operating system and database upgrades will be co-ordinated
by the Application Support Desk, in negotiation with key users.
Wherever possible a minimum of five (5) working days notice
will be given with changes planned outside of the Client's
Critical Business Periods. If less than 5 days notice is given,
the outage shall be considered Unexpected Service Interrupted
Down-Time.
B.6.8. Network Upgrades
Any network upgrade which may affect the availability of
service for the Client, will be agreed upon with key users at
least five (5) working days before implementation. If less than
5 days notice is given, the outage shall be considered
Unexpected Service Interrupted Down-Time.
B.6.9. Bespoke Reports
Requests from the Client for the writing of bespoke reports
will be negotiated between the parties as the need arises and
will be subject to separate charges for the effort involved.
B.7. Data Integrity
B.7.1. Back-ups
"Hot" backups (i.e. requiring no Down-time) of the entire
system structure will be made daily, with backup tapes being
sent off the Operator's Client's sites after 24 hours. In
addition, Oracle archive redo logs will be copied to tape
during the course of the day. Such tapes will be retained
onsite for immediate access in the event of data loss.
B.7.2. Restores
The purpose of all backups will be to provide the Operator with
recovery capability in the event of data loss or system
failure. Backup data cannot be made available for restore in
the event of user error.
If a restore becomes necessary, Operator will use its best
efforts to perform this function at a time of least impact to
the Client.
Loss of data resulting in the need for a restore will be
assigned a priority of High and the Operator's Project Manager
will be informed immediately. In addition to the usual call
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logging procedure, the Operator's Project Manager will provide
the Client with the target time for restoration of service.
Notwithstanding the above, in the event of lost data, there may
be some loss of small amounts of data representing the very
recent commitments to the database. These may need to be
resubmitted or re-entered manually by the Client.
The emergency return of tapes from offsite storage is subject
to a 2-hour minimum delivery time.
B.7.3. Data Retention
B.7.3.1. IQuator Data
Both Transport Order and Event information will be
held on live tracking database six (6) months after a
consignment was successfully delivered or is marked as
complete, then deleted. This will be achieved using
cascading deletes in Oracle.
B.7.3.2. Enhanced IQship Data
Enhanced IQship data will be held on the production
database for 36 months, or until such time as Client
requests data to be archived. This function will be
achieved using Enhanced IQship data redundancy
Programs.
B.7.4. Disaster Recovery
The Operator shall provide good and sufficient disaster recovery facilities
and services for the Programs and Client Data, which at a minimum shall comply
with accepted industry standards. The disaster recovery facility shall be
located at the Operator's facilities in New Jersey, or such other facility as
determined by the JPC. Except as determined in accordance with Section B.7.4.1,
the Operator shall be capable of re-establishing critical functions of the
Programs and restoring Client Data on a disaster recovery basis within twenty-
four (24) hours of the event leading to the implementation of the disaster
recovery services. Other features of the Programs shall be functional on a
disaster recovery basis within forty-eight (48) hours of such event.
B.7.4.1. Disaster Recovery Testing; Standards
The Operator shall undertake practice runs of the
disaster recovery system, with the first taking place
during the Client training as determined by the JPC.
The JPC shall monitor such practice runs and shall
benchmark and establish standards for disaster
recovery ("Disaster Recovery Standards"). Practice
runs shall take place as reasonably requested by the
Client, or as set by the JPC.
B.7.4.2. Performance Credits
A failure by the Operator to meet a Disaster Recovery
Standard shall entitle the Client to Enhanced
Performance Credits, under Section 0.
B.8. Modifications and Enhancements
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The Operator will improve and develop the Standard Programs from time to
time throughout the duration of this Agreement in response to suggestions
and requests it receives from users of the Standard Programs, and in
order to maintain the Standard Programs at or near the state-of-the-art
in the industry ("Modifications"). The Operator shall provide such
Modifications to the Client in consideration of the Client's payment of
Application Support Fees. In addition, the Operator shall integrate such
Modifications with Enhanced IQship (or other customize Programs), at the
Client's request, and in accordance with the procedures of Section 6.
B.9. Security
B.9.1. Physical Site Security
The Operator shall maintain and enforce at the Operator's Service
Locations reasonable physical safety and security procedures. The
Operator shall be responsible for any failures of the Operator or
its agents to comply with reasonable Operator physical safety and
security procedures then in effect at the applicable Operator
Service Locations or reasonable physical safety and security
procedures then in effect at the applicable Client Service
Locations, to the extent that such non-compliance causes damages
to the Client.
B.9.2. Security for Online Systems.
The Operator shall include state-of-the-art security features for
the Website, associated Networks, servers, and facilities,
including firewall implementation, password protection, virus
checking, and other features designed to prevent (a) unauthorized
access to Client Data; (b) tampering with the Site or its
contents; and (c) alteration of the Programs.
B.9.3. Data Security.
The Operator shall establish and maintain good and sound
safeguards against the destruction, loss, or alteration of Client
Data in the possession or under the control of the Operator.
B.9.4. Security Relating to Shared Environments.
If the Operator provides Services to the Client from a Service
Location that also provides services to or processes data for any
of the Operator's other customers, the Operator shall, in addition
to its obligations under this Agreement, at the Client's request,
demonstrate to the Client's reasonable satisfaction that the
Client's Confidential Information and Client Data will not be
disclosed to any such other customer of the Operator.
B.9.5. Notice of Security Breach.
The Operator shall promptly notify the Client of any known or
potential security breaches and, in the event any unauthorized
access occurs, (without prejudice to the Client's other remedies)
the Operator shall use its best efforts to detect, identify and
eliminate such unauthorized access as soon as possible and to
prevent the re-occurrence of such access.
B.10. Data and Privacy Protection Legislation
The Operator will comply with all applicable data protection and privacy
legislation, both current and
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future, in its provision and operation of the Services under the terms of
this Agreement.
B.11. Service Level Reviews; Best Practices
The Client and the Operator's Project Coordinator will arrange for
quarterly reviews of the operation of this Agreement when necessary, at
which changes to its provisions or improvements to ancillary procedures
can be addressed. In addition, the Parties agree that they shall
periodically review the then current Service Levels to ensure that they
meet or exceed industry standards. If, after any such review, the parties
determine that any Service Level must be modified or altered, or that a
new Service Level shall be incorporated or a current Service Standard
deleted, the parties agree that good faith discussions shall be promptly
undertaken to amend this Agreement accordingly.
B.12. Non-Performance
In the event of a breach of the Service Levels embodied in this
Agreement, the party affected shall bring the breach to the attention of
the relevant key person (by means of telephone communication, confirmed
by e-mail). The key person will take steps to avoid further repetition of
the breach, confirming by e-mail the remedial action taken, where
appropriate. Notwithstanding the foregoing, breach by either party shall
subject it to the remedies set forth in the Agreement.
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Attachment C: Professional Services (PS)
This Attachment C refers to provision by the Operator of Business and Technical
------------
Consultants to Client outside the scope of the services set forth otherwise in
the Agreement and/or its attachments.
7. Business & Technical Consultancy.
Business & Technical Consultancy relating to Application Development will be
offered either on a Time and Materials basis, or, where there is a known fixed
deliverable and the effort can realistically be estimated, on a fixed price
basis.
8. Application Integration
Application Integration will be charged on a Fixed Time or Time and Material
basis where it is necessary to technically evaluate, test and implement
additional EDI or flat file extracts built by the Client.
9. Report Writing
Report Writing will be performed and implemented within the application using
the designated tools. Client may develop their own reports using their own
licensed copy of the Programs. Operator will advise Client of the version
requirements of the report writer.
10. Exception Messaging
Exception Messaging will be performed using the designated tools Clients will be
allowed to develop their own exception messages either using SQL (which will be
delivered to Operator for loading into appropriate environment) or using their
own licensed copy of the Programs.
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