Exhibit 10.60
MASTER AGREEMENT
MASTER AGREEMENT ("Agreement") made as of this First day of June,
1999, by and between NEWSUB SERVICES, INC., a corporation existing under the
laws of the State of Connecticut and having a principal place of business at
Four Xxxx Xxxxx Xxxx, Xxxxxxxx, Xxxxxxxxxxx 00000 and its direct subsidiaries
("Company") and EDGEWATER TECHNOLOGY, INC., a corporation existing under the
laws of the State of Delaware, and having a principal place of business at 00
Xxxxxxx Xxxx Xxxxxx, Xxxxxxxxx, Xxxxxxxxxxxxx 00000 ("Consultant").
WHEREAS, the parties have entered into various prior software-related
agreements for design, development, programming, implementation, maintenance,
migration, training and other services;
WHEREAS, the parties wish to continue such services, to undertake new
services now and from time-to-time hereafter, and for all such services between
them to be governed by this Agreement;
NOW, THEREFORE, the parties, in consideration of the mutual covenants
and agreements herein contained, and for other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, agree as follows:
1. Services
1.1 Consultant agrees to perform for the Company the various
software-related design, development, programming, implementation, maintenance,
management, migration, training and other services ("Services") set forth in the
schedules, attached and to be attached from time-to-time hereafter, each bearing
a head-note referencing this Agreement and the unique title of the schedule
running page-to-page throughout, and signed by the parties hereto not in
counterpart ("Schedules").
1.2 Each Schedule shall include a corresponding statement of work,
containing a description of the tasks to be performed by Consultant, together
with such other descriptors as the parties see fit to include, such as
designation of deliverables, documentation, milestones, acceptance criteria,
warranty periods, performance schedules, payment schedules, general functional
descriptions, detailed software specifications, relationships of software to
hardware, terminal response time, data conversion responsibility, programming
languages, Consultant staffing, staff qualifications, etc.
1.3 Consultant agrees to perform the Services in a professional
manner, including without limitation the delivery of functional software, under
the direction of the Company personnel designated from time-to-time by the
Company.
1.4 To the extent any Services whatsoever are negotiated or performed
by or between the parties, including in the absence of corresponding Schedules,
all such Services shall be governed by the terms of this Agreement, unless
otherwise agreed to in writing by the parties with specific reference to this
subsection.
2. Payments
UNLESS OTHERWISE PROVIDED IN WRITING WITH SPECIFIC REFERENCE TO THIS
SECTION:
2.1 Prior to Testing Notification (defined in subsection 7.1) and
subject generally to the terms of the Agreement, for Services rendered during
the then-current calendar month, Consultant will invoice the Company the
following month, and payment shall be net thirty (30) calendar days. The
Company shall reimburse Consultant for all reasonable out-of-pocket and material
expenditures incurred and properly documented by Consultant and, for amounts in
excess of Two Hundred Fifty ($250) Dollars, authorized in advance by the
Company.
2.2 For Services rendered by Consultant for which fees have not been
delineated with particularity, Consultant shall invoice the Company as set forth
in the "NSS Time & Material Rates" in Attachment A hereto and incorporated
herein, as amended by mutual written consent of the parties from time-to-time
hereafter. Without limiting the foregoing, nothing in this subsection shall be
construed to affect Services performed for a fixed price.
2.3 If the Company disputes any amount(s) payable, the Company shall
pay that portion of the amount(s) not in dispute, if any, and either party may
submit the disputed sum(s) to dispute resolution pursuant to Section 2.1.
2.4 Fixed-price project fees associated with software development
services only shall be payable in equal installments of twenty-five percent
(25%) upon the occurrence of each of the following conditions: (i) commencement
of the project, (ii) the halfway point as determined with reference to the
applicable time-line, (iii) Acceptance (defined in subsection 7.1) (or waiver
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thereof) of the final Deliverable of the project, and (iv) operation without any
material program errors impairing functions of the project as it is designed to
perform ("Material Program Errors") for ninety (90) consecutive days following
the commencement of Live Operation (defined in section 8).
2.5 Subject generally to the terms of the Agreement including section
5 hereunder, Company shall have no obligation to pay Consultant, and Consultant
shall assume all responsibility, for all fees and costs associated with any and
all overruns related to fixed price projects, except for any additional,
unanticipated work resulting from rework caused by changes to government
standards, third-party hardware or software, or from the failure of Company to
perform its obligations hereunder, in which event Company shall be solely
responsible for the fees and costs corresponding thereto.
2.6 In the event of any and all unapproved slippage of delivery dates
related to time and materials projects, Company shall pay Consultant seventy-
five (75%) percent of time-and-material fees set forth in "NSS Time & Material
Rates" (subsection 2.2) during the period of said slippage.
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3. Ownership and Property
Notwithstanding anything to the contrary, and except as provided in
subsection 3.4 below:
3.1 All Services and work performed by the Consultant under this
Agreement, including without limitation all materials, products, Deliverables
(defined in subsection 7.1) and derivative works therefrom, are the property of
the Company, and shall be deemed to be works made for hire and made in the
course of the Services rendered hereunder, from the time of inception and
regardless of Acceptance, completion or other circumstances. All title and
interest therein shall vest in the Company and may not be used by Consultant for
any other purpose except for the benefit of the Company. To the extent that
title to any such Services or work may not, by operation of law, vest in the
Company or such work may not be considered works made for hire, all rights,
title and interest therein are hereby irrevocably assigned to the Company by
Consultant, with the Company having the right to obtain and to hold in its own
name, copyrights, registrations or such other protection as may be appropriate
to the subject matter, and any extensions and renewals thereof. The Consultant
agrees to give the Company reasonable assistance at the Company's expense
required to perfect the rights defined in this section, and hereby appoints the
Company as its agent and attorney-in-fact to sign in its name any such
instruments or other documents which have not been duly signed by it and
received by the Company within five (5) calendar days following the Company's
request therefor. Consultant shall not be precluded from performing similar
services for others even where such services shall produce similar results,
subject to this subsection 3.1 and sections 10 and 11.
3.2 All Services, work and products provided by Consultant to the
Company under prior agreements (excepting Edgewater's TimeKeeper system) are
hereby irrevocably assigned to the Company by Consultant, together with all
rights, title and interest therein, in accordance with this subsection, to the
extent not already owned or so transferred.
3.3 The Company hereby grants to Consultant, at no charge, the
restricted, non-transferable, non-exclusive, right to use (but not title to) any
computer hardware, software and other equipment, whether owned or leased by the
Company, as well as all applicable licenses and maintenance agreements, for the
sole purpose of providing Services hereunder ("Company Resources"). Upon
termination of the Agreement for any reason, the rights granted Consultant in
this subsection shall immediately terminate and revert to the Company, and the
Consultant shall deliver to the Company, at the Company's expense (except that
in the event of a termination of this Agreement as a result of the default of
Consultant hereunder, said delivery shall be at the expense of the Consultant),
all related Company Resources, at the location specified by the Company.
3.4 Consultant may, from time-to-time, utilize its own proprietary
systems when providing Services ("Consultant Systems"). Consultant Systems may
be designated by the parties in a written list with specific reference to this
subsection, signed by the parties and attached hereto, to be updated or revised
from time-to-time, and, to the extent defined with specificity under prior
agreements between the parties, shall be deemed so designated herein.
Consultant Systems are and shall remain the property of Consultant, which grants
to Company a perpetual, non-transferable, non-revocable, non-exclusive
restricted license to use any custom-
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developed non-"off-the-shelf' utility software programs (including all related
documentation) of any Consultant Systems being used by Consultant to provide
Services upon termination of this Agreement. Said license is restricted in that
Company may: (a) use the licensed programs only to process the work of the
Company and its affiliates and not to provide service to or support third
parties; and (b) not disclose the licensed programs or related documentation to
third parties; provided, however that the Company may disclose the licensed
programs and related documentation to third parties who have executed a non-
disclosure agreement in such form as shall be reasonably satisfactory to
Consultant, and as necessary to provide support to Company.
4. Project Meetings/Progress Reports
Unless otherwise provided by Schedule or by the Company at any time,
the Consultant's project manager(s) shall present one or more written report(s)
to the Company with respect to the status and progress of all existing or
ongoing Services on a weekly basis. Such report(s) shall include a summary of
the accomplishments and difficulties during the prior reporting period, the
anticipated results during the next reporting period, and estimated time and
cost to complete, where applicable. In addition, if requested by the Company
during the prior reporting period, Consultant agrees to submit time sheets in a
form to be proposed by the Company and approved by the Consultant (such approval
not to be unreasonably withheld, conditioned or delayed), and to itemize the
services rendered by individual, rate and days-hours worked during the weekly
period. Project meetings involving the Consultant's project manager(s) and
personnel designated by the Company shall occur as provided in the corresponding
Schedule or (absent such provisions) as reasonably required by the Company.
5. Modification of Services
5.1 The Company may at any time modify the scope of the existing
Services agreed to between the parties, specifying the desired modifications to
the same degree of specificity as in the original specifications. The
Consultant may at its own discretion agree to investigate modified Services, and
will notify the Company of its decision within five (5) business days following
receipt of such notice. Consultant will reasonably attempt to manage these
conditions without impacting project plans and requirements. If Consultant
agrees to investigate such modified Services, it will submit to the Company,
along with the notice of its decision to undertake the work, an estimate of the
time and cost to effect such modification ("Estimate"). Whether or not the
Company accepts Consultant's Estimate, the Company will pay Consultant for
reasonable costs incurred by Consultant in investigating and preparing such
Estimate, not to exceed two thousand ($2,000) dollars without prior Company
consent in each instance. The Company shall respond to Consultant's Estimate
within five (5) business days. Nothing herein shall relieve Consultant of its
obligations hereunder to maintain up-to-date time-lines and to advise the
Company on a contemporaneous basis of any changes thereto and the reasons
therefor.
5.2 Notwithstanding anything to the contrary herein, at any time and
for any reason, the Company may in its sole discretion, pursuant to this
subsection on thirty (30) calendar days notice, terminate any Schedule(s).
Subject to the terms of the Agreement, (a) the Company thereupon shall reimburse
Consultant for incurred costs on either a time-and-material or pro-rata basis,
and (b) for a period of thirty (30) days following said termination, Company
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shall reimburse Consultant for costs incurred for staff specifically hired for
and working on said Schedule(s), solely to the extent that such additional staff
cannot be reassigned to other Company projects, for which reassignment
Consultant shall provide its full cooperation.
6. Timeliness of Performance
6.1 Consultant understands that prompt performance of all Services
hereunder is required by the Company in order to meet its schedules and
commitments, and the parties shall agree in writing with specificity on time-
lines to apply to all Services, including without limitation to Deliverables
such as projects, systems and their component parts, from commencement through
final delivery and Acceptance.
6.2 It is understood that the Company must cooperate in the
furnishing of appropriate information, facilities and other resources to the
Consultant, and that, if the Company fails to cooperate, through no fault of
Consultant, in the furnishing of such information, facilities or other
resources, Consultant shall promptly deliver to Company a written notice, giving
specific itemization of information, facilities or other resources required to
be delivered to Consultant for the timely performance of Services.
6.3 Consultant agrees that it shall be responsible for promptly
notifying Company in writing as it becomes aware of any delays or potential
delays, and for documenting the duration and reasons for said delays with
specificity. Undocumented delays of which Consultant is or should reasonably be
aware shall be attributable solely to Consultant, excluding the exceptions
identified in subsection 2.5. In the event of slippage attributable to
Consultant, Consultant shall assign additional personnel, retain personnel
beyond the original deadline for completion of a milestone or significant
Deliverable, or some combination thereof, at the sole reasonable discretion of
the Company and in accordance with section 2.
7. Acceptance
7.1 UNLESS PROVIDED ELSEWHERE TO THE CONTRARY IN WRITING WITH
SPECIFIC REFERENCE TO THIS SUBSECTION, the Company shall have the right to
review and test any and all new or additional software and software
modifications, upgrades, bug fixes and migrations (including without limitation
the design, development, programming, implementation, installation and re-
installation thereof, as applicable), as well as other Services designated by
the parties as deliverables ("Deliverables"). Consultant shall perform its own
unit and system testing of Deliverables to its satisfaction, and thereafter
notify the Company in Consultant's weekly project reports or otherwise in
writing of the availability of said Deliverable(s) for formal review and testing
by the Company, which notification shall be deemed to certify to the Company
that the corresponding Deliverable is functionally sound ("Testing
Notification"). The Company shall accept or decline in its discretion and in a
timely fashion to perform such review and testing. Where no acceptance test has
been defined to govern the review and testing of a specific Deliverable, the
Company may, in its discretion, review and test said Deliverable in a reasonable
and timely manner as it sees fit ("Acceptance Test").
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7.2 The Company shall provide the Consultant written notification in
a timely manner of the results of the Acceptance Test. If a Deliverable is
deemed by the Company to fail Acceptance Testing, subject to section 2,
Consultant shall thereafter make any corrections necessary for the Deliverable
to pass the Acceptance Test. If any Deliverable does not pass the Acceptance
Test within sixty (60) calendar days of Company's initial notification of
testing results, the Company may require Consultant to continue to attempt to
correct the Deliverable at Consultant's sole expense, reserving the right to
terminate the corresponding Schedule upon written notice to Consultant, in which
case neither Company nor Consultant shall have any further obligation or
liability of any kind with respect to the services referred to in said Schedule.
8. Maintenance
The Company may in its sole discretion commence the live transmission
and processing of Company's operational data in standard, peak and other
functional modes using any Deliverable, or any system comprised of Deliverables,
and all related systems ("Live Operation"), following the passing or waiver of
Acceptance Testing. For ninety (90) calendar days following the commencement of
Live Operation, Consultant shall perform maintenance on the Deliverable(s) which
shall consist of the furnishing of such materials and services as shall be
necessary, free of charge, to correct any and all errors, malfunctions and/or
defects in the operation of the Deliverable(s) or the integration of the
deliverable with other related systems ("Maintenance"). Other than as set forth
in the following sentence, Consultant shall have no Maintenance obligations with
respect to any specific Deliverable(s) for which the Company did not perform
Acceptance Testing, provided that Consultant's warranty obligations (below)
shall be unaffected by any waiver of Acceptance Testing. Notwithstanding the
foregoing, Consultant shall be responsible for correcting, free of charge, any
failure(s) of the Deliverable(s) either to conform with the specifications
outlined in the detailed functional design document(s) or to integrate with all
related systems ("Material Program Errors"). Irrespective of Maintenance
obligations, if any and all Material Program Error(s) are not corrected within
ninety (90) calendar days of the commencement of Live Operation, the Company may
require Consultant to continue to attempt to correct said Material Program
Errors at Consultant's sole expense, reserving the right to terminate the
corresponding Schedule upon written notice to Consultant, in which case neither
Company nor Consultant shall have any further obligation or liability of any
kind with respect to the services referred to in said Schedule.
9. Documentation and Training
Consultant shall provide all applicable documentation with Testing
Notification for each Deliverable, which could include detailed design
specifications, system flow charts, program flow charts, file layouts, report
layouts, screen layouts, program source code, and all other documentation as
specified in the appropriate Schedule, RFP or Company proposal ("Documents" and
"Documentation"). Thereafter, Consultant's project manager(s) shall review all
applicable Documentation with personnel designated by the Company, to the
reasonable satisfaction of Company, whereupon the Company shall release
Consultant from any further obligation to provide Documentation in connection
with the corresponding Deliverable(s) or project(s). Documentation shall not be
defined more narrowly than herein provided without specific written reference to
this section.
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10. Confidentiality/Injunctive Relief
10.1 Company and Consultant acknowledge that each may come into the
possession of confidential information of the other relating to employee's,
customers, operations, activities, intellectual property (including without
limitation trade secrets and know-how), products and/or services, that such
information is property valuable to the party that has developed it, and that
the party that has developed it desires to retain it in confidence and withhold
it from publication to others. Consultant further acknowledges that the
services which the Company performs for its clients are confidential; that to
enable the Company to perform these services, its clients furnish to the Company
confidential information concerning their business affairs, finances,
properties, methods of operation and other data; that the good will of the
Company depends, among other things, upon its keeping such services and
information confidential and that unauthorized disclosure of the same would
irreparably damage the Company; and that by reason of its duties hereunder, the
Consultant may come into possession of information concerning the services
performed by the Company for its clients or information furnished by its clients
to the Company, even though the Consultant does not itself take any direct part
in or furnish the services performed by those clients. Excepting information
which is or becomes publicly available through no breach of this Agreement, or
information which is independently developed or received by a party under no
obligation of confidentiality, all information described in this subsection is
hereinafter collectively referred to as "Confidential Information".
10.2 Each party agrees that any and all Confidential Information of the
other, and any information or knowledge which may be imparted through receipt
and examination of Confidential Information of the other, will not be copied or
communicated to any third party, or used by a party, its employees, servants or
agents except as may be necessary for fulfilling the terms of this Agreement or
upon prior written approval of the other party. Each party agrees to return all
written or other tangible Confidential Information of the other, including all
extracts and copies thereof, upon the other's request, or to dispose of such
Confidential Information in accordance with the other's written instructions.
Each party agrees that it will not at any time during or for a period of three
(3) years after the term of this Agreement disclose any Confidential Information
of the other to any person whatsoever, or permit any person whatsoever to
examine and/or make copies of any reports or any documents it has prepared or
which it has come to possess or control by reason of the Services. If either
party is required to disclose Confidential Information pursuant to legal
process, said disclosing party shall provide the other party with prompt written
notice of the same and shall cooperate with the other party in any reasonable
effort to oppose such process, at the expense of the opposing party. Each party
acknowledges that its disclosure of any Confidential Information of the other
will give rise to irreparable injury to the other, or the owner of such
information, inadequately compensable in damages. Accordingly, each party, or
the owner of such information, may seek and obtain injunctive relief against the
breach or threatened breach of the foregoing undertakings, in addition to any
other legal remedies which may be available without requirement of posting bond
or other security.
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11. Non-Compete
11.1 In recognition of the fact that Consultant's personnel provided to
Company under the Agreement and prior agreements may perform similar services
from time-to-time for others, this Agreement shall not prevent Consultant or its
employees from performing such similar services or restrict it from using
personnel provided to Company under this Agreement, subject to confidentiality
and other Consultant obligations hereunder. Consultant shall make every effort
consistent with sound business practice to honor the specific requests of the
Company with regard to the assignment of its employees and other personnel;
however, Consultant reserves the right to determine the assignment of its
employees. Notwithstanding the foregoing, Consultant agrees that, for this
period of providing Services to Company and continuing for one (1) year after
the termination of this Agreement, Consultant will not, unless approved by
Company in its sole discretion in each instance, render similar services for
American Family Enterprises, Inc., Centrobe, Inc., QPS, Inc., CDS, Inc., TCS,
Inc., Publishers Clearing House, Inc., Xxx Xxxxxx, Inc., MSG Syndication and/or
Spectra Syndication Group. Without limiting the Agreement in any way, this
section 11 shall apply to all affiliates, subsidiaries and/or successors-in-
interest of the Consultant.
11.2 The Consultant further acknowledges and agrees that in the event of
the termination of this Agreement, its experience and capabilities are such that
it can obtain a consulting arrangement or employment in business activities
which are either (1) of a different or non-competing nature with its activities
as a consultant for the Company, or (2) are carried on outside the United
States; and that the enforcement of a remedy hereunder by way of injunction will
not prevent it from operating its business or earning a reasonable livelihood.
The Consultant further acknowledges and agrees that the covenants contained
herein are necessary for the protection of the Company's legitimate business
interests and are reasonable in scope and content.
12. Hiring
Neither Company nor Consultant shall solicit, attempt to solicit, hire or
employ, without the prior written consent of the other, employees of the other
party during the term of this Agreement, and for a period of one (1) year
following its termination.
13. Indemnity and Insurance
13.1 Consultant agrees to indemnify the Company for any liability or
expense due to breach of this Agreement, negligence of Consultant, claims for
personal injury or property damage arising out of Consultants performance of the
Services, as well as from any claim for payment of compensation or salary
asserted by an employee of Consultant. Company agrees to indemnify the
Consultant for any liability or expense due to breach of this Agreement,
negligence of Company, claims for personal injury or property damage arising out
of Company's performance, as well as from any claim for payment of compensation
or salary asserted by an employee of Company. Consultant will, at its own
expense, defend any action brought against it or the Company to the extent that
such action is based on a claim relating to Services or systems used within the
scope of this Agreement or infringement of any patent, copyright, license or
trade secret; provided that Consultant is promptly notified in writing of such
claim. In no event
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shall Consultant settle any such claim, lawsuit or proceeding without the
Company's prior written approval. If, as a result of any such claim, litigation
or threat thereof, the Company or the Consultant is permanently enjoined from
using any product of Consultant's Services by final, non-appealable decree, at
the discretion of the Company, Consultant at its sole expense may procure for
the Company the right to continue to use said product(s) or replace or modify
said product(s) so as to settle such claim, litigation or threat thereof.
Notwithstanding the foregoing, Consultant shall not have any obligation to
indemnify or defend Company to the extent any claim, damage, cost or expense is
caused by the Company's modification of any product.
13.2 Consultant agrees to maintain for itself and its employees all
insurance coverages as required by federal and/or state law, including worker's
compensation insurance, General Liability and Automobile Liability. Consultant
shall upon request, furnish the Company with a certificate of insurance showing
the amount of coverage and naming the Company as an additional insured as its
interests may appear. Such certificate shall include a provision whereby
fifteen (15) calendar days notice must be received by the Company prior to
coverage cancellation by either Consultant or insurer.
14. Limitation of Liability
Neither party shall be liable to the other for any special, indirect or
consequential damages or lost profits. Other than for indemnification under
subsection 13.1 with respect to third-party claims asserted against the Company,
Consultant's liability hereunder for damages with respect to work performed
under a particular Schedule, regardless of the form of action, shall not
otherwise exceed the total amount paid to Consultant for its Services pursuant
to the applicable Schedule attached to this Agreement. Other than for
indemnification under subsection 13.1 with respect to third-party claims
asserted against the Company, no action, regardless of the form thereof, arising
out of the Services under this Agreement, may be brought by either party more
than two (2) years after the party has received notice or become aware (or
reasonably should have become aware) of the cause of action, and no action for
non-payment may be brought after eighteen (18) months of the date of the last
payment.
15. Independent Contractor
Consultant is an independent contractor. Neither Consultant nor
Consultant's employees are or shall be deemed for any purpose to be employees of
the Company. The Company shall not be responsible to Consultant, Consultant's
employees or any governing body for any payroll-related taxes related to the
performance of the Services.
16. Assignment
This Agreement is not assignable, in whole or in part, by operation of law
or otherwise, including without limitation, by merger, acquisition,
consolidation or sale of assets or securities, by either party without the prior
written consent of the other party, such consent not to be unreasonably
withheld, delayed or conditioned. Notwithstanding the foregoing, Company is
permitted to assign this Agreement to affiliates as part of any operating
reorganization without the approval of Consultant; Consultant may utilize from
time-to-time nonsupervisory
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independent contractors in the performance of Services hereunder, with the prior
written consent of the Company.
17. Term
The term of this Agreement shall commence on the date set forth in the
caption and, unless earlier terminated in accordance herewith, shall terminate
on December 31, 2000, and shall be automatically renewed for successive six (6)
month periods thereafter.
18. Termination
Notwithstanding anything to the contrary herein, the Company may
terminate this Agreement at any time for any reason upon written notice to
Consultant of One Hundred Twenty (120) calendar days. Consultant shall have no
right to terminate this Agreement until January 1, 2000, at which time
Consultant may terminate this Agreement upon written notice to the Company of
One Hundred Twenty (120) calendar days. Either party may terminate the
Agreement after December 31, 2000, upon sixty (60) calendar days written notice.
In the event of such termination, the Company is obligated to pay only for costs
incurred and actual services rendered by the Consultant prior to the
termination. Upon termination or expiration of this Agreement for any reason,
Consultant shall deliver to the Company all Confidential Information and other
materials relating to the Company or this Agreement, and return the Company
Resources, at Company's expense (unless termination is due to breach by
Consultant, in which case Consultant shall bear the associated expenses).
19. Warranties
Consultant warrants that: (a) each of its employees assigned to
perform services under any Schedule shall have the proper skill, training and
background so as to be able to perform in a competent and professional manner
and that all work will be performed in accordance with the applicable Schedule;
(b) Company shall receive good title free and clear of all liens, claims and
encumbrances to all materials, Deliverables and products developed under this
Agreement; and (c) the Deliverables shall maintain their functionality, taking
into account any processing, accepting, calculating, writing and outputting of
times or dates, or both, whether before, on or after 12:00 a.m. January 1, 2000
and any time periods determined or to be determined based on any such times or
dates or both. This subsection 19(c) shall apply solely to code developed and
delivered by Consultant hereunder, and shall not be deemed to apply to (i)
Consultant software developed prior to this Agreement to process a number of
characters insufficient to achieve Y2K compliance at the specific request of the
Company (collectively, "Noncompliant Software"), which Noncompliant Software
Consultant shall identify with particularity at the expense of the Company or
(ii) any third-party software embedded within a Deliverable or (iii) any Company
Resources. Consultant disclaims all other warranties except those expressly
provided for in this Agreement or in any Schedule.
20. Force Majeure
In any case where either party is required to do any act, delays
caused by acts of nature, war or other emergency, civil commotion, fire,
accident, flood or other casualty, strike, lockout, labor difficulties,
breakdown, failure of supply or shortages of labor, materials or
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equipment, government orders or regulations, unusually severe weather or other
causes beyond such party's reasonable control shall not be counted in
determining the time during which such work shall be completed, whether such
time be designated by a fixed date, a fixed time or a "reasonable time" and such
time shall be deemed to be extended by the period of such delay, subject to
subsection 6.3.
21. Dispute Resolution
21.1 In the event of any controversy or claim arising out of this
Agreement raised by either party, the party raising the dispute will promptly
notify the other party in writing of the nature of the dispute and the factual
background. During the ten (10) calendar days following such notice, the
parties will initiate an attempt in good faith to reach a reasonable solution to
the dispute, including escalation to the vice-president of each company
responsible for the subject matter of the dispute ("Resolution Period"). If the
dispute cannot be amicably resolved during the Resolution Period, then either
party may seek to resolve said dispute by arbitration before a single arbitrator
in accordance with the commercial arbitration rules of the American Arbitration
Association, and judgement upon the award rendered by the arbitrator may be
entered in any court having jurisdiction thereof. Notwithstanding the
foregoing, if the dispute arises out of the provision by Edgewater of ongoing
maintenance or operational services, for which payment would otherwise be due on
a monthly or more frequent periodic basis, and is not related in any significant
way to new or additional software development or modification services, then
Consultant in its sole discretion and upon written notice to Company may waive
the Resolution Period and proceed directly to initiate arbitration. The place
of arbitration shall be Hartford, CT. Each party shall provide to the
arbitrator, no later than ten (10) calendar days following the date of the
arbitrator's appointment, a statement, including all supporting documents or
other evidence on which such party relies as to why it believes that the dispute
should be resolved in its favor, and all such materials and any other materials
provided to the arbitrator by either party shall simultaneously be provided by
such party to the other party. Within ten (10) calendar days after the
submission of such statements by all parties, the arbitrator shall hold a
hearing with respect to the dispute. At such hearing, the arbitrator may, in
his or her sole discretion, allow the parties to call and cross-examine
witnesses, make any additional arguments or submit any additional materials to
support the position taken in their respective statements. The arbitrator shall
enter an award within ten (10) calendar days following the hearing provided for
herein. Nothing shall preclude either party from making an application to the
arbitrator, for good cause, to expedite the proceedings, nor restrict the
arbitrator from granting such an application. In addition to such other relief
as the arbitrator may award, the arbitrator shall be vested with jurisdiction
and shall award to the prevailing party its reasonable attorney's fees and
expenses, and all other costs associated with the arbitration. The award
rendered by the arbitrator shall be final, and judgement may be entered upon it
in accordance with applicable law in any court having jurisdiction thereof.
21.2 This Agreement and performance hereunder shall be governed by and
construed in accordance with the laws of the State of New York but conflict of
law rules shall not apply.
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22. Complete Agreement
This Agreement constitutes the complete agreement and understanding
between the parties unless modified in writing, signed by both parties, or
modified by a change in Schedules initialed by both parties. Where there is any
conflict, redundancy, intersection of terms or other overlap whatsoever between
this Agreement and any agreement between the parties, or where this Agreement
could reasonably be applied to govern any conduct, performance or other aspect
of the parties' relationship in any circumstance, including current
circumstances arising under existing agreements, this Agreement shall take
precedence and govern the parties conduct, rights and obligations. This
Agreement shall not otherwise be deemed to alter, change or affect Consultant's
warranty, maintenance or support obligations with respect to any software
delivered prior to the date hereof, which shall be governed solely by the terms
of any prior agreements under which such software was developed or delivered.
23. Survival
The following sections will survive the termination of this Agreement:
3 (Ownership and Property), 7 (Acceptance), 8 (Maintenance), 10
(Confidentiality/Injunctive Relief), 11 (Non-Compete), 12 (Hiring), 13
(Indemnity and Insurance), 14 (Limitation of Liability), 19 (Warranties), 21
(Dispute Resolution), 23 (Survival), 24 (Severable), 25 (No Waiver), 26
(Binding) and 27 (Notice).
24. Severable
In the event any one or more of the provisions of this Agreement or
any Schedule is deemed by the final decree of a court of competent jurisdiction
to be invalid or unenforceable, the enforceability of remaining provisions shall
be unimpaired.
25. No Waiver
The failure of either party to exercise in any respect any rights
provided for herein shall not be deemed a waiver of any right hereunder.
26. Binding
This Agreement is binding on and shall inure to the benefit of the
respective parties, their successors-in-interest, affiliates, subsidiaries,
agents and permitted assigns.
27. Notice
Any notice of communication required to be given by either party
pursuant sections 13 (Indemnity and Insurance), 18 (Termination) or 21 (Dispute
Resolution) shall be hand delivered; sent by registered mail, return receipt
requested; or delivered by internationally recognized carrier (e.g., FedEx, UPS)
to the party receiving such communication at the address specified by each party
as it principal office or such other address as either party may in the future
specify in writing to the other party; and (if to the Company) to the attention
of both of (1) the Vice President of Operations or the Chief Technical Officer,
and (2) the General Counsel. All other notices under this Agreement shall be
delivered in the same manner, or by both
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facsimile and electronic mail; and (if to the Company) to the attention of both
of (1) the person designated by the Company for purposes of receiving the
corresponding type of notice or, if no such person exists, a Company project
manager familiar with the subject matter of the notice, and (2) the Vice
President of Operations or the Chief Technical Officer. Notices shall be deemed
given and received upon the latest date of the receipt(s) confirming delivery.
28. Captions
The various captions in this Agreement are inserted for convenience
only and shall not affect the meaning or interpretation of this Agreement or any
provision hereof.
IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed as of the date first written above, intending the document to take
effect as a sealed instrument, and do each hereby warrant and represent that
their respective signatory whose signatures appears below has been and is on the
date of this Agreement duly authorized by all necessary and appropriate
corporate action to execute this Agreement.
Witness: NEWSUB SERVICES, INC.
/s/ Xxxxx Xxxxx By: /s/ Xxxxx Xxxxxx
------------------------ ----------------------------
Its duly authorized EVP-Chief Financial
Officer
Witness: EDGEWATER TECHNOLOGY, INC.
[illegible] By: /s/ Xxxxxxx Xxxxxxxxx
----------------------------- ------------------------------
Its duly authorized
Xxxxx Xxxxx
Notary in State of Connecticut
/s/ Xxxxx Xxxxx
---------------
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