EXHIBIT 10.18
INTEGRATED BUSINESS SYSTEMS AND SERVICES, INC.
Services Agreement - Version 09.00
SERVICES AGREEMENT
BACKGROUND
Midnight Auto Inc. is engaged in building a national service franchise system
that's a true alternative to auto dealerships, with extended hours, heavy use
of customer relationship management (CRM) technology, and other innovations to
benefit consumers. Midnight Auto(TM), Inc is the process creator of the All
Night Auto(R) Operating System(TM) which leverages several software and
hardware platforms as well as providing a complete business operations
infrastructure allowing its franchises to operate at high levels of efficiency.
IBSS is engaged in the business of designing, manufacturing, and selling
computer software ("IBSS Software Product(s)"), and providing support,
maintenance, and professional services related to its software ("Services").
MidNight Auto Inc. desires to engage IBSS to provide professional services
required to produce the "Business Requirements Analysis", as defined in
SCHEDULE A and the "Detailed Design Document" as defined in a mutually agreed
to SCHEDULE C which will be subsequently provided at the completion of the work
defined in SCHEDULE A.
The intent of this "Services Agreement" is to address terms and conditions
associated with the time and costs incurred for professional services provided
to produce the scope of work mutually agreed to in the attached and future
SCHEDULES of this agreement.
It is further the intent of both parties to negotiate in good faith the
following additional agreements: "All Night Auto(R) Operating System(TM)
Development Agreement", "Synapse (TM) Software License and Maintenance
Agreement" and "All Night Auto(R) Operating System(TM) Implementation and
Ongoing Support Agreement".
1. PARTIES. This Services Agreement is made between INTEGRATED BUSINESS
SYSTEMS AND SERVICES, INC. (IBSS) and Midnight Auto Inc. a Michigan
Corporation.
2. DEFINITIONS. For purposes of this Agreement the following definitions shall
apply:
A Person is an "AFFILIATE" of a second Person if, directly or indirectly
(whether through a chain of ownership or otherwise), either (i) the first
Person owns or controls a majority of the equity or voting interests in the
second Person, (ii) the second Person owns or controls a majority of the equity
or voting interests in the first Person, or (iii) a majority of the equity or
voting interests in both the first Person and the second Person are owned or
controlled by the same Person(s).
"AGREEMENT" means this Services Agreement.
"CONTROL CHANGE" means a change in the ownership of fifty percent or more of
the equity or voting interests in Customer from such ownership existing as of
the Effective Date.
"CUSTOMER" means the Person subscribed below under the designation "Customer".
EXHIBIT 10.18
INTEGRATED BUSINESS SYSTEMS AND SERVICES, INC.
Services Agreement - Version 09.00
"CUSTOMER REPRESENTATIVE" means the individual so designated by Customer from
time to time by written notice to IBSS.
"EFFECTIVE DATE" means the date immediately preceding the Parties' signatures
below.
"FORCES MAJEURE" any cause or circumstance beyond the Parties' control, (such
as, but not limited to, acts of God, changes in government regulations, acts of
governmental bodies or their employees or agents, weather, war, riot, civil
disturbance, strikes, lockouts, boycotts, and inability to secure labor or any
material specified or reasonably necessary in connection with property through
ordinary business channels, fire, unusual delays in transportation, unavoidable
casualties, etc.).
"IBSS" means Integrated Business Systems And Services, Inc.
"LICENSED SOFTWARE PRODUCT" means any assemblage of software programs,
processes and modules, and the documentation with respect thereto, separately
licensed to Customer by IBSS as a discrete product.
"PARTY" means either IBSS or Customer.
"PERSON" means a natural person, or a private or governmental entity of any
kind.
"PROJECT" means all of the Services in the aggregate.
"SERVICES" means the services described in Schedule A attached, as may be
supplemented from time to time by a Work Order.
"WORK ORDER" means a writing executed by the Parties for the purpose of
supplementing or otherwise amending Schedule A attached.
3. SERVICES. IBSS agrees to perform the Services for Customer substantially in
accordance with the timeline set forth in Schedule A attached. Except as
otherwise provided in Schedule A attached, the following shall apply:
(1) All work performed in rendering the Services (including
without limitation time spent by IBSS personnel in responding
to Customer requests for estimates for additional services)
shall be charged in accordance with IBSS' then current hourly
labor rate schedule. Billable time shall be rounded up to the
nearest hour and shall include portal-to-portal travel time
of IBSS personnel providing Services at a site other than
IBSS' office in Columbia, South Carolina.
(2) Customer shall reimburse IBSS for the cost of all
out-of-pocket expenses related to the performance of the
Services such as travel and living expenses, long distance
telephone charges, etc.
(3) With respect to those Services that are performed at
Customer's site, during the period of such performance
Customer shall make available to IBSS' personnel providing
such Services suitable office, work, and storage space, an
appropriate working environment,
EXHIBIT 10.18
INTEGRATED BUSINESS SYSTEMS AND SERVICES, INC.
Services Agreement - Version 09.00
access to Customer computer systems as necessary, and
reasonable use of telephones, secretarial assistance, and
other standard office resources and amenities.
(4) Either Party shall have the right to terminate a Project at
any time upon ten (10) days Notice to the other Party. In
such event Customer shall remain obligated to pay all amounts
outstanding with respect to charges incurred in connection
with the Project on or before the termination date.
4. FEES. Customer agrees to pay in respect of the Services the charges set
forth in Schedule B at the times set forth in Schedule B.
5. TAXES. All sales, use or other taxes or governmental fees or levies related
to this Agreement or any IBSS services hereunder (other than taxes based upon
IBSS' income) shall be the sole responsibility of Customer. If advanced by
IBSS, Customer shall reimburse such taxes immediately upon demand of IBSS. If a
certificate of exemption or similar document or proceeding is to be made in
order to exempt the transaction from any tax liability, Customer shall obtain
such certificate, document, and/or initiate such proceeding at Customer's sole
cost and expense.
6. PAYMENT. Except as otherwise provided in Schedule B attached, all IBSS
charges pursuant to this Agreement are due and payable thirty days after the
date of the invoice for such charges. In the event of a delinquency in the
payment when due of any amount owing IBSS under this Agreement, so long as such
delinquency remains outstanding in whole or in part, interest on the delinquent
amount shall accrue at the rate of 1.5% per month (or, if less, the highest
rate permitted by applicable law). All accrued delinquency interest shall be
due and payable on demand, and in the absence of demand, on the first day of
each calendar month. The accrual and collection of delinquency interest shall
not constitute a cure of the continuing breach of this Agreement constituted by
such delinquency, nor a waiver of any other right or remedy in respect of such
breach available to IBSS under this Agreement, at law, or in equity.
7. CONFIDENTIALITY AND PROPRIETARY RIGHTS. Except as otherwise provided in this
Paragraph, information exchanged between the Parties shall not be considered
confidential unless both Parties agree otherwise in writing. Customer shall
keep confidential all terms, conditions or other provisions of this Agreement.
Customer acknowledges and agrees as follows:
(1) IBSS retains title in and to all of its intellectual property
employed in or resulting from, directly or indirectly, IBSS'
performance of the Services, including without limitation all
intellectual property embodied in (i) all software code and
documentation, (ii) all user or training manuals,
documentation or other materials or information, (iii) the
design and format of the input and output screens, graphical
user interface, and printable forms, reports and other hard
copy output incorporated in or generated by IBSS'
intellectual property, and (iv) all additions, enhancements,
revisions, updates or other modifications to any Licensed
Software Product or other IBSS' intellectual property, in
whole or in part. IBSS' rights in and to its intellectual
property (including without limitation the product of the
Services) shall not be limited, diminished or circumscribed
in any way because of any fee or charge paid or payable to
IBSS by Customer pursuant to this Agreement or otherwise.
Customer shall not cause or permit removal or alteration in
any way of any notice, legend or symbol denoting any
copyright, trademark, patent or other proprietary right or
interest of the intellectual
EXHIBIT 10.18
INTEGRATED BUSINESS SYSTEMS AND SERVICES, INC.
Services Agreement - Version 09.00
property owner appearing on any input or output screen or
hard copy output incorporated in or generated by a Licensed
Software Product, or any documentation, manuals, brochures,
or other written or printed materials of any kind related to
a Licensed Software Product or other IBSS intellectual
property.
(2) Each item of IBSS intellectual property constitutes valuable
proprietary information and a trade secret of IBSS. Customer
shall not disclose (nor permit any Customer employee,
independent contractor, agent, or other person under its
authority or control, to disclose) to any Person, or allow
any Person access to, any such proprietary information or
trade secrets in whole or in part; provided, however, use of
a Licensed Software Product in accordance with the terms and
conditions of the software license agreement between the
Parties with respect to such Licensed Software Product shall
be permitted by employees of Customer in the ordinary course
and scope of their employment by Customer. Customer shall not
cause or permit any IBSS software to be reverse engineered,
decompiled, or disassembled in whole or in part. Customer
shall not cause or permit the programs, documentation, or
other information related to any IBSS software or other
intellectual property to be copied or reproduced in any form
or medium, in whole or in part. Customer shall take such
actions to preserve and protect IBSS' proprietary rights and
interest of confidentiality in and with respect to such
intellectual property that are, at a minimum, commensurate
with those actions taken by Customer to preserve and protect
its most valuable trade secrets or other proprietary or
confidential information.
(3) Customer's confidentiality obligations hereunder do not apply
to any information which (i) was lawfully and rightfully in
Customer's possession at the time of disclosure and was not
acquired directly or indirectly from IBSS, (ii) was lawfully
and rightfully acquired by Customer from others who acquired
it by proper means and had no confidentiality obligation to
IBSS with respect to same, or (iii) is now, or hereafter
becomes, through no fault of Customer, part of the public
domain by publication or otherwise.
(4) Neither Party shall infringe upon or otherwise make use of
any trademark, service xxxx, trade name, or similar right or
interest of the other Party.
(5) IBSS agrees that the intellectual property produced by the
Services for use in conjunction with a Licensed Software
Product shall be considered part of the property licensed to
Customer under the software license agreement between the
Parties with respect to such Licensed Software Product.
8. NONSOLICITATION. Customer will not, on behalf of itself or any other Person,
directly or indirectly, (i) solicit or attempt to induce an employee of IBSS to
terminate his employment with IBSS, or (ii) offer employment to a former
employee of IBSS during the one year period immediately following the former
employee's termination. Employees of one party shall not be deemed employees of
another for any purpose.
9. WARRANTY DISCLAIMER. ALL SERVICES ARE PROVIDED "AS IS" WITHOUT WARRANTY OF
ANY KIND, WHETHER EXPRESS OR IMPLIED. WITHOUT LIMITING THE GENERALITY OF THE
FOREGOING, IBSS EXPRESSLY DISCLAIMS ANY WARRANTY OF MERCHANTABILITY, FITNESS
FOR A PARTICULAR PURPOSE, DATA INTEGRITY, ABSENCE OF ANOMALIES OR
EXHIBIT 10.18
INTEGRATED BUSINESS SYSTEMS AND SERVICES, INC.
Services Agreement - Version 09.00
NONCONFORMITIES, ERROR-FREE OPERATION, OR UNINTERRUPTED SERVICE WITH RESPECT TO
ANY SERVICE.
10. LIMITATION OF REMEDIES. Notwithstanding any other provisions of this
Agreement, Customer's exclusive remedy in respect of or related (directly or
indirectly) in any way to any act or omission of IBSS related to Maintenance
shall be for IBSS, at its option, to either: (1) remedy any deficiency within a
reasonable time; or (2) refund to Customer all fees or charges in respect of
the Covered Product previously paid by Customer to IBSS pursuant to this
Agreement.
11. LIMITATION OF DAMAGES. If, notwithstanding the provisions of this Agreement
to the contrary, a court of competent jurisdiction determines that Customer is
entitled to damages in respect of any claim by Customer arising under this
Agreement, the total amount of such damages shall not exceed the aggregate
amount of all charges which, prior to the date as of which such damages are
determined, were paid by Customer to IBSS in respect of this Agreement. IN NO
EVENT AND UNDER NO CIRCUMSTANCES SHALL IBSS HAVE ANY LIABILITY FOR
CONSEQUENTIAL DAMAGES (INCLUDING WITHOUT LIMITATION DAMAGES FOR LOST PROFITS),
PUNITIVE DAMAGES, EXEMPLARY DAMAGES, OR OTHER SPECIAL DAMAGES OF ANY KIND.
12. INDEMNIFICATION OF IBSS. Customer agrees to indemnify, defend and hold
harmless IBSS and its Affiliates, and their respective shareholders, directors,
officers, employees, agents and other representatives, from and against any
damage, loss, expense or other liability arising, directly or indirectly, out
of either (1) any claim by any Person other than Customer in respect of any act
or omission of either IBSS or Customer in connection with this Agreement,
regardless of any fault of any kind attributable to any of the above named
indemnitees, or (2) any breach of any of Customer's obligations under this
Agreement.
13. FORCES MAJEURE. All periods of time specified for performance of
obligations (other than monetary payment obligations) by either Party hereunder
shall be subject to an extension for a period of time equal to any delay caused
by Forces Majeure. Following the occurrence of any Force Majeure, the
performance effected thereby shall be extended to a number of days equal to the
period of such delay.
14. RELATIONSHIP OF PARTIES. The Parties agree that, in performing any and all
services, IBSS is acting as an independent contractor. IBSS assumes no
liability or responsibility for obligations of Customer in respect of any other
Person. Nothing in this Agreement shall be construed to make either Party a
partner, joint venturer or employee of the other Party. Nothing in this
Agreement shall be construed to make IBSS responsible for complying with any
disclosure, reporting or other requirement of the Customer's business or
operations.
15. NOTICES. All notices, requests, demands, or other communications directed
to a Party shall be in writing, and shall be personally delivered or sent by
certified (return receipt requested) or registered mail, postage pre-paid, to
such Party's address specified opposite such Party's signature below, or to
such other address as such Party may hereafter specify in a notice to the other
Party.
16. ENTIRE AGREEMENT. This Agreement constitutes the entire Agreement between
the Parties with respect to the subject matter hereof, and supersedes and
replaces any and all prior agreements or arrangements between the Parties,
whether oral or written.
EXHIBIT 10.18
INTEGRATED BUSINESS SYSTEMS AND SERVICES, INC.
Services Agreement - Version 09.00
17. BINDING EFFECT. This Agreement shall be binding upon, and inure to the
benefit of, the Parties hereto and their successors and permitted assigns.
18. ASSIGNMENT. Customer may not assign its rights or benefits under this
Agreement to any other Person without the prior written consent of IBSS, which
consent shall not be unreasonably withheld.
19. NO WAIVERS. The failure of either Party hereto to insist upon strict
performance of any of the terms or conditions of this Agreement shall not be
deemed to be a waiver of any rights or remedies of such Party in respect of any
other provision hereof or in respect of any subsequent breach or default under
such term or condition.
20. AMENDMENTS. This Agreement may be amended only by a writing duly executed
by both Parties.
21. ARBITRATION. Except as otherwise expressly provided in this Agreement, all
claims, controversies or disputes arising out of or related to this Agreement,
or any breach thereof, shall be resolved by binding arbitration in Columbia,
South Carolina as provided herein and otherwise in accordance with the
Commercial Arbitration rules of the American Arbitration Association. Where the
amount in controversy is less than $100,000.00, the dispute shall be submitted
to a single arbitrator. Otherwise the dispute shall be submitted to a panel of
three arbitrators. The arbitrator(s) shall strictly enforce all provisions of
this Agreement except to the extent applicable law requires otherwise. The
arbitrator(s) shall have no authority to grant either Party punitive,
exemplary, consequential or other special damages of any kind. Judgment upon
the award of the arbitrator(s) may be entered in any court of competent
jurisdiction. Notwithstanding the duty to arbitrate disputes pursuant to this
paragraph, either Party may (subject to the other provisions of this Agreement)
seek interlocutory relief from the federal district court in (or closest to)
Columbia, South Carolina in order to enforce or otherwise protect its rights
under the provisions of this Agreement related to confidentiality, proprietary
rights to intellectual property, and the duty to arbitrate.
22. ATTORNEYS FEES. In any action, proceeding, or arbitration in respect of
this Agreement, the court or the arbitration panel, as applicable (the
"tribunal"), shall award to the prevailing Party all of such Party's costs
related to the controversy (including without limitation attorneys' fees and
out-of-pocket expenses). Where each Party prevails in part, the tribunal shall
award to each Party that part of its costs that the tribunal deems allocable to
those issues as to which such Party prevailed.
23. JURISDICTION AND VENUE. The Parties agree that any action or proceeding
arising out of or related to this Agreement shall be instituted only in the
federal district court in (or closest to) Columbia, South Carolina. Each Party
consents and submits to the jurisdiction of such court and agrees that venue
therein shall be proper and convenient. In any such action or proceeding in
such court, each Party waives any right to raise any objection based upon
improper venue, lack of jurisdiction, or inconvenient forum. In connection with
any such action or proceeding, each Party consents to personal jurisdiction of
such court and agrees service of process may be effected by United States mail.
Notwithstanding the foregoing, the Parties agree to resort to such an action or
proceeding only (i) if the arbitration provisions of this Agreement are held to
be invalid or unavailable, (ii) to enforce an arbitration award pursuant to
this Agreement, or (iii) as otherwise expressly permitted by this Agreement.
EXHIBIT 10.18
INTEGRATED BUSINESS SYSTEMS AND SERVICES, INC.
Services Agreement - Version 09.00
24. LIMITATION OF ACTIONS. Except as set forth below, neither Party shall bring
any action or institute any proceeding related, directly or indirectly, to this
Agreement more than two years after the Party initiating the action or
proceeding knew (or reasonably should have known) of the essential facts giving
rise to the underlying cause of action.
25. GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the laws of the State of South Carolina.
26. EXECUTION AND DELIVERY. Each Party has caused this Agreement to be duly
executed and delivered as of the 15th day of January, 2004.
NOTICE ADDRESSES: SIGNATURES:
INTEGRATED BUSINESS SYSTEMS AND SERVICES, INC.
0000 Xxxx Xx.
Xxxxxxxx, XX 00000
By: /s/ Xxxxxx X. Xxxxxxxxxx
------------------------
Title: Chief Executive Officer
CUSTOMER: Mid Night Auto Inc.
00000 Xxxxxx Xxxxx
Xxxxxx Xxxxxxxx, XX 00000 By: /s/ Xxxxxxxx X. Xxxxx
------------------------
Title: Chief Executive Officer
EXHIBIT 10.18
INTEGRATED BUSINESS SYSTEMS AND SERVICES, INC.
Services Agreement - Version 09.00
SCHEDULE A
[Redacted Proprietary Information]
EXHIBIT 10.18
INTEGRATED BUSINESS SYSTEMS AND SERVICES, INC.
Services Agreement - Version 09.00
SCHEDULE B
[Redacted Proprietary Information]
