EXHIBIT 10.15
AGREEMENT
State of Iowa Contract No. 2501.
1.0. PARTIES AND TERM.
This Agreement is effective this 23rd day of April, 1998, by and
between IOWA INTERACTIVE, INC. (Vendor) and the STATE OF IOWA, by and through
INFORMATION TECHNOLOGY SERVICES (State). The Initial Term of this contract
is from the effective date up to and including September 30, 1998. The
Initial Term of this contract is predicated on federal funding which will
expire September 30, 1998. In the event that the State obtains an extension
of time beyond September 30, 1998 from the federal funding source to expend
the funds for the purpose of completing Phases I, II, and III of the Project
for which the funds were granted, the State may elect, in its sole
discretion, to extend this Agreement for the purpose of completing Phases I,
II and III of the Project.
In the sole discretion of the State, the State may elect to extend
this Agreement beyond the Initial Term for a period not to exceed a term of
Three (3) years (the First Extension Period). Following the First Extension
Period, the State may elect to renew this Agreement in Two (2) year
increments for an additional period not to exceed Four (4) years (Subsequent
Extension Period[s]).
The State shall determine whether to renew the Agreement and shall
notify the Vendor in writing at least One Hundred Eighty (180) Days in
advance of the expiration of the First Extension Period or Subsequent
Extension Period. Within Thirty (30) Days of the notice to the Vendor, the
parties shall agree on the length of the transition period. However, the
Vendor shall not be obligated to continue to operate the Network under this
subsection beyond the One Hundred Eighty (180) Days if the Network operations
are incurring a net loss (as defined in the Project Plan) at the time of
expiration or during the period of transition unless any such loss is
reimbursed by the State during the transition period.
1.1 DEFINITIONS
As used herein, the following terms mean:
"Acceptance of Service" or "Accept Service" means the date on which
the Project is activated by the State and use of the Project is commenced for
purposes other than Testing and Acceptance following the Testing and
Acceptance period.
"Project" means the timely development and implementation of a citizen's
information network, including but not limited to Phases I, II and III as
described in the Request for Proposal #18001S (RFP) and provision of related
services for the State, as defined and specified in the RFP, and includes, but
is not limited to the purchase, maintenance and replacement of hardware,
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software, peripheral equipment, operating systems and communications
equipment and connections (collectively "Network") to be provided by the
Vendor.
"Project Plan" means the document developed by the parties which
outlines specifically the manner in which the Project will be developed,
completed and implemented, the manner by which the Vendor shall be paid, the
timelines for completion of various deliverables of the Project, and such
other matters as the parties deem necessary to effectuate this Agreement.
The Project Plan will also contain provisions regarding the establishment,
development, maintenance, operation and expansion of the Network (Phase IV),
if applicable.
"Testing and Acceptance" means that the Vendor has completed the
design, development and installation of Phases I, II and III of the Project
and has completed its notification of readiness for Project testing, the
State and the Vendor have completed the Project testing, all notices required
to be given by the Vendor to the State or the State to the Vendor have been
completed, and the Project has been accepted by the State. The Project Plan
will also contain provisions establishing criteria for Testing and Acceptance
for each of the Phases of the Project.
1.2 PROJECT COMPLETION; PAYMENT TO VENDOR
A. The Vendor shall complete phased implementation of the Project not
later than dates to be agreed by the parties, and incorporated into the
Project Plan, which is incorporated herein by reference. The Project Plan
may be modified from time-to-time with the mutual agreement and consent of
both parties; all such modifications shall be in writing signed by both
parties to this Agreement.
B. If the Vendor fails to make timely, substantial and material progress
toward the completion of the Project by the date or dates specified in
subsection A above, or in the Project Plan, the State may, in its sole
discretion, terminate the Agreement with the Vendor following notice of
default and opportunity to cure as provided in Section 1.6 herein. In the
event that the Vendor fails to complete the Project as required herein, and
the State terminates the agreement with the Vendor, the State may withhold
any outstanding payments to the Vendor, and pursue any other remedy provided
herein and by law.
C. 1. The State declares and the Vendor acknowledges that time is of the
essence in the completion of the Project, and further that the State may
suffer damages if the Vendor fails to complete the Project by the date(s)
specified. Specifically, the State may lose certain federal funding for the
development, completion and implementation of a citizens' information
network, as well as other related federal funds and may be required to
reimburse the federal government for such funds previously expended by the
State if the Vendor fails to complete the Project by the date or date(s)
specified in Subsection A above, or in the Project Plan.
2. If the Vendor fails to complete the Project by the date or date(s)
specified in subsection A above, or in the Project Plan and the State elects to
continue the Agreement with the Vendor, the State may assess the Vendor
liquidated damages in the amount of One Thousand
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Dollars and No Cents ($1,000.00) for each week (seven consecutive days) in
which the Vendor fails to complete Phases I, II and III of the Project.
Liquidated damages shall not be considered a penalty and may be deducted from
the amount of the Vendor's monthly payment. There shall be no concurrent
applications of liquidated damages due to cascading failures resulting from a
single failure.
3. If the Vendor makes timely, substantial and material progress
toward the completion of the Project but is not able to complete the Project
prior to September 30, 1998, and further, provided that the Vendor is not in
breach of a material term of the Agreement, the State will timely request an
extension of time from the federal funding source in which to complete the
Project. The State makes no representations with respect to the grant or
denial of such a request from the federal funding source with regard to an
extension.
D. The State shall pay the Vendor an amount not to exceed Five Hundred
Sixty-Two Thousand Dollars and No Cents ($562,000.00) for the timely
development and successful implementation of Phases I, II, and III of the
Project. The Vendor may invoice the State monthly in accordance with the
payment schedule set forth in Attachment 2 attached hereto and incorporated
herein by reference and subject to any adjustments identified in this
Agreement, liquidated damages or offsets pursuant to the terms and conditions
as stated in this Agreement. Payment terms for Phase IV of the Project, if
applicable, shall be incorporated into the Project Plan.
E. The Vendor shall not be reimbursed for any costs incurred by the
Vendor, including but not limited to Workers Compensation costs or insurance
premiums, unemployment compensation costs, taxes, costs of the Network (as
defined in this Agreement) or other obligations of the Vendor associated with
the provision of services requested under the RFP, except as agreed upon by
the parties and incorporated herein.
F. Upon receipt of a properly submitted and appropriately documented
invoice to the State, the State will promptly process and pay the invoice.
If State does not pay a properly submitted and appropriately documented
invoice within sixty (60) Days after presentation to the State, the Vendor
may add an interest charge not to exceed one percent (1%) per month on the
unpaid balance in accordance with Iowa Code Section 421.40, or the maximum
allowed under section 421.40, if less than one percent (1%).
1.3 TESTING AND ACCEPTANCE
A. Testing and Acceptance of the Project shall be completed not later
than the date or dates specified in the Project Plan. The State, in its sole
discretion, may require Testing and Acceptance for each major application in
the Project Plan. The State shall Accept Service from the Vendor promptly
following the installation, and Testing and Acceptance of the Project. The
Vendor shall notify the State of its readiness for Testing and Acceptance of
the Project and shall participate in and cooperate with the State in
completing Testing and Acceptance prior to the State's Acceptance of Service
from the Vendor.
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B. During the period of Testing and Acceptance, the State may accept or
reject the Project. If the State rejects the Project during Testing and
Acceptance, the State will notify the Vendor in writing of its rejection and
may include in the notification any relevant identified defects or
deficiencies in the Project, if known. The State shall not declare the
Vendor in Default of this Agreement during the initial Testing and Acceptance
period unless or until the State provides the Vendor with an additional
Fifteen (15) Days from the date of notification of rejection in which to
correct the deficiencies or defects in the Program. Upon the Vendor's
renotification of readiness for Testing and Acceptance, the State and the
Vendor shall recommence the Testing and Acceptance period. If the State
rejects the Project during the recommenced Testing and Acceptance period, the
State may declare the Vendor in default under this Agreement as specified
herein.
1.4 CORRECTION OF DEFECTS OR DEFICIENCIES; MAINTENANCE OF PROJECT
A. The Vendor shall at all times use its best efforts to maintain the
Network in such a condition throughout the term of this Agreement and any
extension thereof so as to deliver service contemplated by this Agreement on
an uninterrupted basis, Twenty-Four (24) hours a day, Seven (7) consecutive
days a week, except as provided herein. During the term of the Agreement and
any extension thereof, the Vendor, at its sole expense, shall maintain,
repair or replace any and all Network components or other materials necessary
to provide uninterrupted Twenty-Four (24) hours a day service to the State.
B. The State or its designated representative may periodically and
without notice to the Vendor monitor the performance of the Network and the
Project. In the event that the monitoring reflects that the Network is
experiencing errors in data transmission or interruption of service to the
State, the State shall notify the Vendor of service interruption or errors in
data transmission. The Vendor shall respond to commence and complete repairs
to the Network as specified in Subsection C below.
C. The Vendor shall develop a plan for regular monitoring of the
performance of the Network. The monitoring plan shall be subject to approval by
the State, and the monitoring plan shall be included in the Project Plan. In
the event that the Vendor's monitoring of the Network reflects that the Network
is experiencing errors in data transmission or interruption of service to the
State, the Vendor shall notify the State (in the manner specified in the Project
Plan) of service interruption or errors in data transmission. The Vendor shall
respond to commence repairs to correct the interruption in service or errors in
data transmission within two (2) hours of the commencement of the interruption
in service or errors in data transmission, and shall use its best efforts to
repair the Network and return the Network to normal service. The Vendor shall
respond to interruptions in service and errors in data transmission Twenty-Four
(24) hours a day, including Saturdays, Sundays and holidays. If the Vendor is
unable to respond to repair the Network within Two (2) hours of commencement of
the interruption in service or errors in data transmission, it shall escalate
its internal procedures for repairing the Network. The Vendor shall at all
times keep and maintain a service interruption log which shall be available for
inspection
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by the State.
D. The Vendor shall exercise its best efforts to limit any interruption
of service for the purpose of preventive maintenance to, repair or
replacement of or upgrading the Network to periods of minimum use. The
Vendor shall develop and adopt a preventive and routine maintenance schedule
for the Network which is subject to approval by the State, and which shall be
included in the Project Plan.
E. The Vendor shall not be subject to default for a service interruption
caused by a failure or malfunction of equipment which was not installed or
maintained by the Vendor or an affiliate, vandalism by third parties, or a
service interruption due to circumstances beyond the reasonable control of
the Vendor. Routine and preventive maintenance which is performed in
accordance with Subsection D above, shall not subject the Vendor to default.
F. In the event that the Vendor is unwilling or unable to correct the
interruption in service within Twenty-Four (24) consecutive hours following
the commencement of the service interruption (an interruption caused in whole
or in part by the Vendor or an interruption deemed to be within the control
of the Vendor), the State may make or cause to have made any repair necessary
for the continued operation of the Network and shall charge the Vendor for
such repair or replacement. The charges made to the Vendor by the State may
be offset from payments due or to become due to the Vendor. Further, if the
Vendor fails or is unwilling to repair, maintain, or replace any component of
the Network, the Vendor shall at all times during the term of this agreement
permit the State or its designated representative, reasonable access to the
Network, wherever located, for the purposes of performing maintenance,
repairs, replacement and other activities associated with the performance or
non-performance of the Network.
1.5 ASSIGNMENT OF AGREEMENT
The Vendor may not assign this Agreement to another person or entity
without the prior written consent of the State.
1.6 DEFAULT; REMEDIES OF STATE
A. The State may declare the Vendor in default of its obligations under
the Agreement for any of the following reasons:
1. Failure by the Vendor to meet the Project completion deadline(s) as
required in Section 1.2 herein.
2. Failure by the Vendor to substantially and materially conform to
the specifications as required by the Project Plan.
3. A breach of any term of this Agreement.
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4. Failure to meet the deadline(s) established herein.
5. Non-performance of this Agreement.
6. After One Hundred Twenty (120) Days from commencement of on-line
service, Four (4) or more service interruptions of a duration of Four (4) or
more hours each in a Thirty (30) Day consecutive period.
B. The State shall issue a written notice of default providing therein
for a Ten (10) Day period in which the Vendor shall have an opportunity to
cure, provided that cure is possible and feasible. Time allowed for cure of
a default shall not diminish or eliminate the Vendor's liability for
liquidated damages, if any.
C. If, after opportunity to cure, the default remains, the State may do
one or more of the following:
1. Exercise any remedy provided by law, including injunctive relief;
2. Terminate the Agreement, and
3. Obtain liquidated damages from the Vendor, as described herein.
1.7 INCORPORATED DOCUMENTS & GENERAL PROVISIONS
A. The following documents containing specifications for services
requested under Request for Proposal Number 18001S are listed below:
1. This Agreement together with any exhibits, Project Plans,
attachments or addenda, attached hereto or incorporated herein by reference.
2. Any License Agreements between the State and the Vendor for Vendor
owned software.
3. Any third party License Agreements for software owned by others and
provided by the Vendor to the State.
4. The Request for Proposal No. 18001S, including any and all addenda,
tables, exhibits and appendices, and the Vendor's Response to the Request for
Proposal, incorporated herein by reference as if set forth fully in this
Agreement. The RFP and the Vendor's Response to the RFP shall be deemed to
be of equal rank.
In the event of a conflict among the incorporated or attached documents,
the order of precedence shall be as set forth above.
B. Changes in the provisions of this Agreement may be made only in
writing signed by all parties hereto.
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C. This Agreement constitutes the entire agreement between the parties,
and any prior understanding or representation of any kind preceding this
Agreement shall not be binding upon either party except to the extent
incorporated herein.
D. All notices required to be given by either party to the other in
accordance with the terms of this Agreement shall be directed as follows:
STATE: Name: Xxxxx X. Xxxxxxxxxx, Director or Designee
Information Technology Services
Xxxxxx Xxxxx Xxxxxx Xxxxxxxx, Xxxxx X, Xxx
Xxxxxx, Xxxx 00000
Phone Number: 000-000-0000
Facsimile Transmission No. 000-000-0000
VENDOR: Name: W. Xxxx Xxxxxx or Designee
Iowa Interactive, Inc.
Address: 000 Xxxxx Xxxxxxx Xxxx Xxxxx, #000, Xxxx Xxx
Xxxxxx, Xxxx 00000
Phone Number: 000-000-0000
Facsimile Transmission No: 000-000-0000
1.8 ACTS OF GOD (FORCE MAJEURE)
Neither party shall be considered in default under any provision of
this Agreement if performance is delayed or made impossible by any causes
beyond the control of and without the fault of the party occasioning the
delay or impossibility of performance, including, but not limited to: acts of
God, fires, floods, severe weather, epidemics or any other natural disaster,
embargoes, or quarantines.
1.9 VENDOR'S OBLIGATIONS FOR SUBCONTRACTOR; OFFSETS AND DEDUCTIONS
A. A breach of this Agreement which is the result of a subcontractor's
conduct, negligence or failure to perform shall not excuse the Vendor from
the provisions of this Agreement.
B. Should the State obtain a money judgment against the Vendor as a
result of a breach of this Agreement, the Vendor consents to such judgment
being set-off against moneys owed the Vendor by the State under this
Agreement or any other Agreement between the Vendor and the State.
C. Amounts due to the State as liquidated damages or any other damages
may be deducted by the State without a judgment or any court action from any
money payable to the Vendor pursuant to this Agreement or any other Agreement
between the Vendor and the State. The State shall notify the Vendor in
writing of any claim for liquidated damages or any other damages on or before
the date the State deducts such sums from money payable to the Vendor.
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1.10 DEFAULT; REMEDIES OF VENDOR; EARLY TERMINATION BY VENDOR
Should the Vendor consider the State to be in default of its
obligations, the Vendor shall issue a written notice of default providing
therein for a Fifteen (15) Day period in which the State shall have an
opportunity to cure, provided that cure is possible and feasible. If, after
opportunity to cure, the default remains, the Vendor may exercise any remedy
provided by law.
The Vendor may cancel this Agreement upon reasonable notice to the
State, and subject to the orderly transition provisions contained herein, if
legislation materially alters the authority or duties of Information
Technology Services or the Vendor under this Agreement to the extent that
continued operation of the Network cannot be supported, or the financial
basis upon which the Network relies for solvent Network operations does not
materialize or is removed in the future. If the Vendor provides notice to
the State under this provision based on financial considerations, the Vendor
shall provide at least One Hundred Eighty (180) Days notice, together with a
transition plan. However, the Vendor shall not be obligated to continue to
operate the Network under this subsection beyond the One Hundred Eighty (180)
Days notice period if the Network operations are incurring a net loss as
defined in the Project Plan.
1.11 TERMINATION DUE TO NON-APPROPRIATION
Iowa Information Technology Services will make a reasonable request
for the necessary funds for the continued funding of the Project subject of
this Agreement during the budget process before the budget is submitted to
the General Assembly. Notwithstanding any other provision of this Agreement,
if funds anticipated for the continued fulfillment of the Agreement are, at
any time, not forthcoming or are insufficient, either through the failure of
the State to appropriate funds, or as a result of a deappropriation, or an
across-the-board spending reduction ordered by the Governor or the General
Assembly, or funding from a federal funding source is reduced or discontinued
for any reason, or through discontinuance or material alteration of the
Project for which funds were provided, the State shall give the Vendor
written notice as soon as practicable documenting the lack of funding.
Unless otherwise agreed to by the parties, the Agreement shall terminate on
the last day of the fiscal year for which appropriations were available.
However, in the event that an appropriation to cover the cost of this
Agreement becomes available within Sixty (60) Days subsequent to termination
under this section, the State agrees to re-enter the Agreement with the
terminated Vendor under the same provisions, terms and conditions as the
original Agreement.
1.12 TERMINATION FOR CONVENIENCE
The State may terminate this Agreement for convenience for any reason
upon Three Hundred Sixty-Five (365) Days written notice to the Vendor of the
State's intent to terminate, and the Vendor's sole remedy in the event of
termination for convenience is payment for satisfactory services rendered prior
to the date of termination for convenience, except as otherwise provided for
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herein and subject to liquidated damages and offsets as specified in this
Agreement. The notice provisions of this paragraph do not apply to the
Initial Term of the Agreement.
In the State's sole discretion and at the State's sole option, if, for
any reason, this Agreement is terminated or expires (with or without
extension), the Vendor shall continue to operate the Network in accordance
with all the terms and conditions enunciated herein, together with any
amendments and modifications in existence at the time, for a period up to
Twelve (12) months from the time of notification of termination or
expiration, whichever occurs earlier. At the time the State exercises its
rights under this section, the State shall notify the Vendor of the number of
months, during which the Vendor shall continue to operate the Network under
this provision. However, the Vendor shall not be obligated to continue to
operate the Network under this subsection if the Network operations are
incurring a net loss (as defined in the Project Plan) at the time of
termination or expiration or during the period of transition unless any such
loss is reimbursed by the State during the transition period.
1.13 REMEDIES OF VENDOR IN EVENT OF NON-APPROPRIATION OR FOR CONVENIENCE
In the event of termination of this Agreement due to non-appropriation
under Section 1.11 above or for convenience pursuant to Section 1.12 above,
the Vendor's sole and exclusive remedy is as provided for herein.
If the Agreement is terminated due to non-appropriation, the Vendor's
sole and exclusive remedy is to remove any equipment, hardware, software, and
other components of the Network furnished by the Vendor for which payment has
not been made. Additionally, the Vendor shall be entitled to collect any
amounts due to the Vendor on the date of termination of the Agreement for
non-appropriation.
In the event of termination of this Agreement for any reason, the
State shall not be liable for the payment of Unemployment Compensation to the
Vendor's employees, nor shall the State be liable to the Vendor for payment
of Workers' Compensation claims which occur during the Agreement or extend
beyond the date on which this Agreement terminates or for any other costs
incurred by the Vendor in its performance of the Agreement, except amounts,
if any, due and owing to the Vendor by the State on the date of termination.
If the State terminates this Agreement pursuant to Section 1.11 or
1.12 above prior to or effective September 30, 1998, or elects not to extend
the Agreement for the First Extension Period, the State shall purchase from
the Vendor all hardware, software furnished by the Vendor and third party
software furnished by the Vendor to the extent that the Vendor has the right
to assign such third party software, and used in the performance of the
Agreement for a price not to exceed that provided for and identified on
Attachment 2, attached hereto and incorporated herein by reference. A copy
of the list of items subject of this provision is attached hereto and
incorporated herein by reference as part of Attachment 2. The list may be
modified by the parties from time-to-time.
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If the State, in its sole discretion, elects to extend this Agreement
for the First Extension Period or a Subsequent Extension Period and
subsequently terminates the Agreement for convenience under circumstances in
which the final date of service by the Vendor pursuant to the notice of
termination for convenience is less than Sixty (60) months after April 23,
1998, the effective date of this Agreement, the Vendor's software license
price to the State shall be an amount determined by applying straight-line
monthly increment amortization over a Sixty (60) month period ($16,666 per
month) as measured from the effective date of the Agreement, April 23, 1998,
to the initial price of One Million Dollars and No Cents ($1,000,000.00).
This payment provision does not apply to any termination date or failure of
the State to extend for a Subsequent Extension period which occurs more than
Sixty (60) months after the effective date, April 23, 1998, of this
Agreement. Upon payment of the amount as specified herein, if any, the State
shall receive from the Vendor a license of the type described in Section 1.27.
The Vendor shall, in addition to the other remedies as provided in
this section, be entitled to collect any monies due to the Vendor as of the
date of termination, cancellation or expiration of the Agreement.
If the Agreement remains in effect for a period of Sixty (60) months
after the effective date, April 23, 1998, then the License of the type
described in Section 1.27, Subsection B, vests in the State without any
additional payment by the State to the Vendor.
1.14 VENDOR DUTIES
A. All records of the Vendor relating to this Agreement shall be retained
for five (5) years following the date of final payment under this Agreement.
Nothing in this Agreement shall be construed to permit or authorize the
Vendor to destroy or eliminate documents, records, or files in violation of
any statute or rule governing the Vendor's retention of records.
B. 1. The Vendor agrees that the Auditor of the State of Iowa or any
authorized representative of the State, and where federal funds are involved,
the Comptroller General of the United States or any other authorized
representatives of the United States Government, shall have access to and the
right to examine, audit, excerpt and transcribe any directly pertinent books,
documents, papers, and records of the Vendor relating directly or indirectly
to the activities of the Vendor under this Agreement.
2. The Vendor further agrees that the State or a representative of its
selection may conduct a complete technology (contract compliance) audit at
least once annually to determine whether or not the Vendor is complying with
the terms of this Agreement, the Project Plan, criteria established for
access to data, state and federal law regarding confidential records, and any
other applicable state and federal laws and regulations.
3. The Vendor shall promptly comply with and correct any
deficiencies noted in the audit reports as audit exceptions and will promptly
implement any recommendations requested by the State or its representative to
which the Vendor and the State agree. The Vendor shall not impose
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any charges on the State, the federal government or their authorized
representatives for access to any relevant documents or records, however
compiled and maintained, and shall fully cooperate with the State or federal
government and their authorized representatives in the conduct of the
financial and technology (contract compliance) audits. The State shall not
impose a charge on the Vendor for the financial or technology (contract
compliance) audit. The State may declare the Vendor in default of its
obligations under this Agreement in the event that financial or technology
audit exceptions disclose material, significant or repeated violations of the
terms of this Agreement. To the extent that audit report discloses any
discrepancies in the Vendor's charges, xxxxxxxx, or financial records and
following a reasonable period for review and verification of the amount of
any discrepancy by the Vendor, the Vendor shall adjust the next monthly
billing to the State, and, in any event, the adjustment shall occur within
Ninety (90) calendar days after the date of the audit report. The Vendor
shall exercise its best efforts to cooperate with the State or its
representative to assure that any verification is completed in a timely
manner.
C. The Vendor shall comply with the applicable provisions of federal,
state and local laws and regulations to insure that no employee or applicant
for employment is discriminated against because of race, religion, color,
age, sex, national origin, or disability. The Vendor shall have an
affirmative action plan, if required by law.
D. The Vendor warrants that no person or selling agency has been employed
or retained to solicit and secure this Agreement upon an agreement or
understanding for commission, percentage, brokerage or contingency excepting
bona fide employees or selling agents retained for the purpose of securing
business. In the event of breach of this subsection, which shall be
considered a material term of this Agreement, the State shall have, in
addition to the remedies contained in Section 1.6 above, a right to
liquidated damages in the sum of $50,000.00. Such damages are not a penalty
and would be assessed only because the monetary damage to the State's
competitive bidding process resulting from breach of this subsection is
difficult, if not impossible, to measure.
E. In the event that the Vendor utilizes subcontractors for the purpose
of fulfilling its obligations under this Agreement, all such subcontractors
shall be procured with appropriate attention to the principles of competition
and quality of workmanship; however, the Vendor shall not be required to
adhere to the State's competitive bidding procedures in its selection of
subcontractors. All records relating to subcontracts shall be retained as
required in Subsection A. above and available for audit or examination as
required in Subsection B. above.
F. If the Vendor is a joint entity, consisting of more than one
individual, partnership, corporation or other business organization, all such
entities shall be jointly and severally responsible for fulfilling the
activities and obligations under this Agreement, and for any default under
this Agreement. The Vendor asserts that it is not a joint entity.
G. The Vendor shall provide and pay for all labor, materials, tools,
machinery, storage of same and transportation necessary for the Vendor to
provide the services required under this Agreement, except as otherwise provided
in this Agreement. The Vendor shall be solely responsible for recruitment,
hiring, management of, training, discipline and termination, and any other
indicia of an
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employer, including payment of salaries, benefits, bonuses and the like with
respect to its employees during the term of this Agreement and any extension
thereof.
H. 1. Some data, software programs, operating systems and platforms,
including third party proprietary software and methodologies, copyrighted and
patented information and other information including, but not limited to
information contained in the State's files and records however maintained and
stored, as well as policies and activities of the State are confidential
(collectively Confidential Information). The Vendor shall preserve the
confidentiality of such Confidential Information which may be revealed to the
Vendor in its performance of this Agreement. The Vendor shall maintain
adequate and appropriate network security in accordance with standards
mutually agreed upon by the parties to insure the safeguarding of the State's
Confidential Information and other data, electronic files, systems,
applications and programs. In the event of breach of this provision, the
State may suspend this Agreement immediately upon notice to the Vendor of
default and may, in its sole discretion, terminate this Agreement with the
Vendor if the default remains uncured after Seven (7) consecutive days
following notice to the Vendor. The Vendor shall comply with all applicable
federal and State laws and regulations regarding confidentiality of the
records to which the Vendor is permitted access. The Vendor, its agents and
employees may be required to execute Confidentiality and Non-Disclosure
Agreements to obtain access to certain Confidential Information.
Provided that the Vendor has complied with the conditions specified in
this provision for safeguarding the State's Confidential Information, the
State will not terminate this Agreement with the Vendor if the Vendor shall
within Three (3) business days following notification of the breach,
determine the cause or source of the breach and take all reasonable
corrective measures to eliminate the cause or source of the breach, and to
the extent possible cure the breach.
2. Both parties agree to protect all Confidential Information provided
by one party to the other, and not to publish or disclose to any third party,
misuse, alter or destroy or make any use whatsoever of such information
without the other party's written permission by using those methods and
procedures normally used to protect one's own Confidential Information.
3. Confidential Information will remain the property of the disclosing
party, and the receiving party will not be deemed by virtue of this Agreement
or any access to the disclosing party's Confidential Information to have
acquired any right or interest in or to any such Confidential Information.
The receiving party agrees: (i) to hold the Confidential Information in
strict confidence; (ii) to limit disclosure of the Confidential Information
to the receiving party's own employees having a need to know the Confidential
Information for the purposes of this Agreement; (iii) not to disclose any
Confidential Information to any third party; (iv) to use the Confidential
Information solely and exclusively in accordance with the terms of this
Agreement in order to carry out its obligations and exercise its rights under
this Agreement; and (v) to notify the disclosing party promptly of any
unauthorized use or disclosure of the Confidential Information and to
cooperate with and assist the disclosing party in every reasonable way to
stop or minimize such unauthorized use or disclosure.
Page 12 of 27
4. The Vendor agrees that if a court of competent jurisdiction
determines that the Vendor has breached, or attempted or threatened to
breach, its confidentiality obligations to the State or the State's
proprietary rights, the State will be entitled to obtain appropriate
temporary and/or permanent injunctive relief and other measures restraining
further, attempted or threatened breaches of such obligations and the Vendor
hereby consents to a court order granting such relief. Such relief or
measures shall be in addition to, and not in lieu of, any other rights and
remedies available to the State.
5. The provisions of this section shall remain in full force and
effect and otherwise survive the expiration or termination of this Agreement
or any extension thereof for a period of Three (3) years following the last
day that the Vendor provides service, or as prescribed by statute, whichever
is longer, or as determined by the parties and included in the Project Plan.
I. The State declares and the Vendor acknowledges the purpose of this
Agreement is to facilitate efficient and effective electronic access to the
State's public records as defined in Iowa Code chapter 22, and other State
records, data (inbound and outbound), and electronic filings (collectively
Electronic Transactions) over public networks such as the Internet for the
use and benefit of governmental entities, citizens, and members of the public
generally, and further to facilitate effective and efficient interaction
between Iowa State government and its citizens using such electronic means as
the Internet. The State hereby appoints the Vendor as an agent of the State
for the limited purpose of transmitting Electronic Transactions under this
provision and such appointment is specifically limited to the Vendor's
obligations under this provision.
Electronic Transactions involving such public records or other data,
however stored, maintained, or conducted by the Vendor on the State's behalf
for the purposes enunciated in this Agreement does not represent the
assignment or sale of the records or other data to the Vendor, nor may the
Vendor pledge or obligate the records or data as security for a loan,
mortgage, or any other financing transaction. The Vendor may not, outside of
fulfilling its obligations to the State, independently package, sell, or
otherwise provide the State's data to any third party for consideration,
monetary or other gain.
J. The Vendor shall have and maintain a disaster recovery plan which
provides for the efficient and effective resumption and continuation of the
Project's activities following a disaster.
K. The Vendor shall have and maintain a secure additional off site
storage facility for Network software which shall be "backed up" daily or
periodically as appropriate and removed from the primary business location.
The Vendor shall maintain redundant capabilities for critical functions as
defined by the parties and included in the Project Plan so as to minimize any
disruption in service to the State.
L. The State may provide the Vendor with access to data contained in the
State's computer system for the purpose of the Vendor's activities under this
Agreement; however, the State shall not be liable to the Vendor for any
direct or indirect costs or expenses which may be incurred by
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the Vendor during periods when the computer system or any component is being
serviced, maintenance is being performed, the system is inoperable for any
reason, or the Vendor is unable to access the data for any reason. The Vendor
shall hold harmless the State from and against any and all liability,
including any losses, damages, including lost profits, claims, and expenses
to the Vendor occasioned by the State's failure to transmit signals
accurately, even if such outage, interruption or failure was occasioned in
whole or in part by the acts or omissions of the State.
M. Nothing in this Agreement shall be construed as creating or
constituting the relationship of a partnership or joint venture between the
parties hereto. Except as specifically authorized in this Agreement, each
party shall be deemed to be an independent contractor contracting for
services and acting toward the mutual benefits expected to be derived
herefrom. No party, unless otherwise specifically provided for herein, has
the authority to enter into any contract or create an obligation or liability
on behalf of, in the name of, or binding upon another party to this Agreement.
In the event that the Vendor collects fees pursuant to Iowa Code
chapter 22 or any other statutory provision for and on behalf of the State
under this Agreement, the State hereby appoints the Vendor as an agent for
the limited purposes of collecting, accounting for and transferring said fees
to the State.
N. The Vendor shall not load, use, transmit, store or maintain any
application which would track an individual's use of the citizen's
information network except to the extent necessary to prevent unauthorized
access to confidential data, to preserve the integrity of "firewalls", to
document a subscriber's account activity, to collect fees as authorized by
the State, to comply with a specific request by the State, or to comply with
an order of a court of competent jurisdiction.
1.15 INDEMNIFICATION; CONSEQUENTIAL AND INDIRECT DAMAGES
The Vendor shall indemnify and hold harmless the State, its officials,
agents and employees, from and against any and all claims, damages, losses,
settlements, judgments, costs and expenses, including attorney's fees
(collectively Damages), arising out of or resulting from the Vendor's
performance or attempted performance of its obligations under this Agreement;
claims for infringement of patents, trademarks, trade dress, trade secrets,
or copyrights arising from the design of the project; and, any violation of
this Agreement, to the extent that any such Damages are caused in whole or in
part by an intentional or negligent act or omission by the Vendor, any
subcontractor, agent, representative or anyone directly or indirectly
employed by any of them or anyone for whose acts any of them may be liable.
The Vendor shall indemnify and hold harmless the State, its officials,
agents and employees, from and against any and all claims by an employee of the
Vendor, its subcontractors, anyone directly or indirectly employed by any of
them, or anyone for whose acts any of them may be liable. The indemnification
under this subsection shall not be limited in any way by any limitation on the
amount or type of damages, compensation or benefits payable by or for the
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Vendor or a subcontractor under Workers Compensation Acts, disability benefit
acts or other employee benefit acts.
Neither party shall be liable to the other party for lost profits,
indirect, special, punitive or consequential damages arising under this
Agreement or from any breach or partial breach of the provisions of this
Agreement or arising out of any act or omission of any party to this
Agreement, its subcontractor, employees, servants, representatives or agents,
or arising under theories of strict liability or tort.
The obligations of the respective parties under this section shall
survive the expiration or termination of this Agreement, including any
extensions thereto, with respect to any occurrences within the term of this
Agreement.
1.16 TAXES: STATE AND LOCAL; OFFSET BY STATE
The State declares and the Vendor acknowledges that the Vendor and its
subcontractors, may be subject to certain taxes, including but not limited to
sales tax, motor vehicle fuel tax, personal or corporate income tax or other
taxes or assessments, and to licensing fees or other miscellaneous fees or
charges which may be imposed by Federal State or local law or ordinance. The
Vendor and its subcontractors shall be solely responsible for the payment of
such taxes. The Vendor shall promptly pay all such taxes, fees or charges
when due. The State is a tax exempt entity and no payment will be made for
any taxes levied on the Vendor for any purpose. If the Vendor is in arrears
in payment of any state taxes which are due and payable to the State, the
State may offset any taxes in arrears from payments to the Vendor under this
Agreement.
1.17 PROPERTY DAMAGE
The Vendor shall exercise its best efforts to prevent damage to
property of the State in the course of performing its obligations under this
Agreement. The Vendor shall restore damaged property to the extent possible
to its condition prior to the damage at the sole expense of the Vendor. Such
restoration shall be complete when judged satisfactory by the State.
1.18 SAFETY OF PERSONS AND PROPERTY; INSURANCE
The Vendor shall maintain in full force and effect during the term of
this Agreement and during any extensions or renewals thereof, liability and
property damage insurance to protect the Vendor, its subcontractors, if any,
and the State from claims for damage which may arise from operations under
this Agreement, and the amount of such insurance shall not be less than the
following:
(1) Bodily injury liability insurance in an amount to be determined
by the State for injuries, including accidental death, to any person, and
subject to the same limitation for each person, in an amount not less than
One Million Dollars and No Cents ($1,000,000.00) per occurrence.
Page 15 of 27
(2) Property damage insurance in an amount not less than One Million
Dollars and No Cents ($1,000,000.00) per occurrence.
(3) Workers' Compensation - Statutory.
The Vendor shall arrange with its insurer for notice of cancellation
of the required insurance coverages to be directed to the State in addition
to any notices of cancellation which may be directed to the Vendor. The
Vendor's insurer shall state in the certificate of insurance that no
cancellation of the insurance is effective without Ten (10) Days prior
written notice to the State. All insurance coverage required by this
Agreement shall provide coverage for all claims arising from activities
occurring during the term of the policy regardless of the date the claim is
filed or expiration of the policy.
1.19 RECEIVERSHIP
The Vendor shall immediately, and not later than two business days
after any such filing, notify the State, in writing, if: (a) the Vendor files
a voluntary petition in bankruptcy, a voluntary petition to reorganize its
business, or a voluntary petition to effect a plan or other arrangement with
creditors; (b) the Vendor files an answer admitting the jurisdiction of the
court and the material allegations of an involuntary petition filed pursuant
to the United State bankruptcy code, as amended; (c) an order for relief
under the Bankruptcy Code is entered for the Vendor, or the Vendor makes an
assignment for the benefit of creditors, applies for or consents to the
appointment of a receiver or trustee for all or any part of its property; (d)
the Vendor institutes dissolution or liquidation proceedings with respect to
its business; (e) an order is entered approving an involuntary petition to
reorganize the business of the Vendor or to effect a plan or other
arrangement with creditors or appointing a receiver or trustee for the Vendor
for all or part of its property; or (f) if a writ or warrant of attachment,
execution, distraint, levy, possession, or any similar process which may
materially affect the operation of the Vendor, is issued by any court against
all or any material part of the Vendor's property.
In the event that said petition, writ or warrant is not dismissed or a
stay of foreclosure obtained or said appointment, assignment, or proceedings
are not rescinded or terminated within One Hundred Twenty (120) Days of the
issuance, making, or commencement thereof, and the effect thereof is to
materially impede or frustrate the ability of the Vendor to fulfill its
obligations under this Agreement, then the State may terminate this Agreement
without penalty, unless: (a) within One Hundred Twenty (120) Days after the
election or appointment, any receiver or trustee of the Vendor, or the Vendor
as a debtor-in-possession in connection with any reorganization or similar
proceedings, shall have remedied any uncured failure to comply with any
provision of this Agreement; and, (b) within said One Hundred Twenty (120)
Days, the receiver or trustee, or the Vendor as a debtor-in-possession, shall
have executed an agreement with the State, which shall have been approved by
the court having jurisdiction, whereby the receiver or trustee, or the Vendor
in its capacity as a debtor-in-possession, assumes all obligations and agrees
to be bound fully by each and every provision of this Agreement.
Page 16 of 27
1.20 OBLIGATIONS BEYOND AGREEMENT TERM
The obligations of the State and the Vendor incurred or existing under
this Agreement as of the date of expiration, termination or cancellation will
survive the expiration, termination or cancellation of this Agreement and
include the following sections: Section 1.9, subsection B; Xxxxxxx 0.00,
xxxxxxxxxxx X, X, X, X, X, X; Section 1.15; Section 1.22; Xxxxxxx 0.00,
xxxxxxxxxxx X, X, X, X, X; Section 1.25; Section 1.27; and Section 1.28.
1.21 AUTHORIZATION
Each party to this Agreement represents and warrants to the other that:
1. It has the right, power and authority to enter into and perform
its obligations under this Agreement.
2. It has taken all requisite action (corporate, statutory or
otherwise) to approve execution, delivery and performance of this Agreement,
and this Agreement constitutes a legal, valid and binding obligation upon
itself in accordance with its terms.
1.22 SOVEREIGN IMMUNITY
The State specifically reserves the defense of sovereign immunity as
allowed by state or federal law or regulations for any claim arising out of
or related to the duties and obligations imposed by this Agreement.
1.23 MISCELLANEOUS
A. This Agreement shall be interpreted in accordance with the laws of the
State of Iowa, and any action relating to this Agreement shall only be
commenced in Polk County, Iowa, District Court or in the United States
District Court for the Southern District of Iowa. This provision shall not
be construed as waiving any immunity to suit or liability which may be
available to the State.
B. If any provision of this Agreement is held to be invalid or
unenforceable, the remaining provisions shall be valid and enforceable to the
extent that the essential purpose of this Agreement will not be defeated by
such an interpretation.
C. Failure of either party at any time to require strict performance of
any provision of this Agreement shall not constitute a waiver of that
provision nor in any way limit enforcement of the provision.
D. The parties agree to execute any additional documents necessary to
effectuate this Agreement.
Page 17 of 27
E. This Agreement supersedes any and all prior Agreements between the
State and the Vendor for the purpose of completing the project contemplated
by this Agreement.
F. The various rights, powers, options, elections and remedies of either
party, provided in this Agreement, shall be construed as cumulative and no
one of them is exclusive of the others or exclusive of any rights, remedies
or priorities allowed either party by law, and shall in no way affect or
impair the right of either party to pursue any other equitable or legal
remedy to which either party may be entitled as long as any default remains
in any way unremedied. unsatisfied, or undischarged.
G. The Vendor irrevocably consents to service of process by certified or
registered mail addressed to the Vendor's designated agent. The Vendor
appoints W. Xxxx Xxxxxx at Des Moines, Iowa, as its agent to receive service
of process. If for any reason the Vendor's agent for service is unable to act
as such or the address of the agent changes, the Vendor shall immediately
appoint a new agent and provide the State with written notice of the change
in agent or address. Any change in the appointment of the agent or address
will be effective only upon actual receipt by the State. Nothing in this
provision will alter the right of the State to serve process in any other
manner permitted by law.
1.24 REQUIRED PROVISIONS
A. Should the Vendor fail either to include in the quoted price, or to
deliver to the State any of the requirements as specified in the RFP for
Phases I, II, and III or any negotiated agreements between the parties, the
Vendor shall be required to install the same or provide the service at the
Vendor's own expense, prior to the date on which the Agreement is implemented.
B. The Vendor shall be responsible for the performance of any
subcontractors who are retained by the Vendor in the performance of this
Agreement.
1.25 YEAR 2000 COMPLIANCE
The Vendor warrants that each item of hardware, software, firmware or
a custom designed and delivered software Project or a system which is
developed or delivered under this Agreement shall accurately process date
data, including but not limited to calculating, comparing and sequencing,
from, into, between and among the nineteenth, the twentieth and the
twenty-first centuries, including leap year calculations, when used in
accordance with the item(s) documentation provided by the Vendor. If the
items to be developed and delivered under this Agreement are to perform as a
system with other hardware and/or software, then the warranty shall apply to
the items developed and delivered and as the items process, transfer,
xxxxxxxx xxxx, or otherwise interact with other components or parts of the
system. The duration of this warranty and the remedies available to the
State for a breach of this warranty include, but are not limited to repair or
replacement of non-compliant items or systems. Nothing in this warranty
shall be construed to limit any rights or remedies of the State under this
Agreement with respect to defects in the items other than year 2000
compliance.
Page 18 of 27
1.26 PERFORMANCE BOND
On the effective date of this Agreement, the Vendor has furnished
surety satisfactory to the State for the faithful performance of the
Agreement, with the additional obligation that the Vendor shall promptly pay
all persons supplying labor or material in the performance of work pursuant
to the Agreement. The Vendor shall maintain the required surety in full
force and effect during the first contract year. If the Vendor is not in
default of a material term of this Agreement at the end of the first contract
year, the State will permit the Vendor to reduce the surety. If, however,
the Vendor is in breach of a material term of this contract at the end of the
first or any subsequent contract year, the Vendor shall maintain the surety
in the amount set for the first year of performance in full force and effect
for the subsequent year.
1.27 LICENSE AGREEMENTS; INTELLECTUAL PROPERTY
The parties agree that all license agreements for Vendor owned or
third party software to be provided by the Vendor to the State shall contain
provisions which shall make clear certain rights of the parties, including
but not limited to ownership of the software, the rights of the respective
parties in the software, the rights and obligations of the parties in the
event of insolvency of the Vendor, payments due to the Vendor for perpetual
use of the software in the event of termination or expiration of the
Agreement prior to certain milestone events, escrow of source code, ownership
of the hardware, operating systems, software, and peripheral equipment (other
than the aforementioned software), indemnification with respect to
infringements, and other related provisions. The following provisions with
respect to intellectual property shall apply to any license agreement under
this Agreement unless otherwise agreed to by the parties.
A. Warranty Regarding Intellectual Property Rights. The Vendor
warrants that, in the performance of this Agreement, the Vendor's work
product and the information, data, designs, processes, inventions,
techniques, devices, and other such intellectual property furnished, used, or
relied upon by the Vendor will not infringe any copyright, patent, trademark,
trade dress or other intellectual property right of third parties.
B. Right to Use License to Intellectual Property. The Vendor grants
the State, subject to the applicable provisions relating to payment as
specified in this Agreement, a perpetual, right-to-use only, license in and
to Network software, whether furnished to the State or developed on behalf of
the State, together with regulated access to the source code and the right to
modify the Network software. The Network components include, but are not
limited to the items identified on Attachment 1 and Attachment 2, attached
hereto and incorporated herein by reference. The parties may modify these
lists from time-to-time.
1.28 FIDELITY BOND
The Vendor shall post a fidelity bond in the amount of one million
dollars ($1,000,000). The bond shall be delivered to the State and shall be
issued by a qualified surety, licensed to do
Page 19 of 27
business in Iowa, which is acceptable to the State. The cost of this bond
shall be paid by the Vendor. The bond shall provide funds in the event that
the Vendor or State suffers any liability, loss, damage, or expense as a
result of any fraudulent or dishonest act or omission of the Vendor or any
subcontractor or any officer, employee, or agent of the Vendor or any
subcontractor or any parent or subsidiary corporation of the Vendor or any
subcontractor. Subject to annual renewal, this bond shall be in force
throughout the term of this Agreement; shall be renewed for one (1) year
following expiration (including any extensions or renewals) or termination of
this Agreement; and, further shall provide that it cannot be canceled during
the annual term of the bond. The Vendor warrants that it will maintain the
required fidelity bond coverage at all times during the term of this
Agreement without any lapse in coverage. (THIS PROVISION WILL TAKE EFFECT IF
AND WHEN, AND PRIOR TO COLLECTION OF FEES BY THE VENDOR.)
(SIGNATURE PAGES FOLLOW THIS PAGE.)
Page 20 of 27
SIGNATURE PAGE (VENDOR)
----------------------------------
IOWA INTERACTIVE, INC.
BY: /s/ W. Xxxx Xxxxxx ( W. Xxxx Xxxxxx )
-------------------------- ------------------------------
(SIGNATURE OF AUTHORIZED REPRESENTATIVE) (PLEASE PRINT NAME OF AUTHORIZED
REPRESENTATIVE)
Page 21 of 27
SIGNATURE PAGE (STATE)
STATE OF IOWA
/s/ Xxxxx X. Xxxxxxxxxx
------------------------
STATE OF IOWA
BY: Xxxxx X. Xxxxxxxxxx
------------------------
Page 22 of 27
[LETTERHEAD]
August 7, 1998
Xx. Xxxx Xxxxxx
General Manager
IOWAccess Network
000 0xx Xxxxxx, Xxxxx 0000
Xxx Xxxxxx, XX 00000
Dear Xx. Xxxxxx:
Please consider this letter as notification of extension of State of Iowa
Contract No. 2501 for a period of three (3) years (First Extension Period) as
specified in Section 1.0 of the contract. All performance criteria specified
in the contract shall remain in force throughout the extension period.
Further, a project plan is required per the contract and will be expected to
be completed and forwarded to me by no later than August 31, 1998. Please
signify your agreement by signing below and returning an original, fully
executed letter to me. If you have any questions regarding this notification,
please don't hesitate to contact me.
Sincerely,
/s/ Xxx Xxxxxxxxxx
Xxx Xxxxxxxxxx
Director, Information Technology Services
State of Iowa
Agreed: By: /s/ W. Xxxx Xxxx Date: 8/7/98
---------------------------- ------------------
Iowa Interactive, Inc.
cc Xxxxx Xxxxxx
Contract File, DGS
