Exhibit 10.12
MSA NO. AGE/2-2004
KANBAY INCORPORATED
MASTER SERVICES AGREEMENT
(UNITED STATES)
This Master Services Agreement ("Agreement") is made as of the 20th day of
February, 2004 ("Effective Date"), by and between Kanbay Incorporated, an
Illinois corporation with its principal place of business at 0000 Xxxxxx Xxxxx,
Xxxxx 000, Xxxxxxxx, Xxxxxxxx 00000 ("Kanbay"), and X.X. Xxxxxxx Technology
Group, Inc., a Missouri corporation with its principal place of business at Xxx
Xxxxx Xxxxxxxxx, Xx. Xxxxx, XX 00000 ("X.X. Xxxxxxx"). The parties agree as
follows:
1. SCOPE OF WORK
1.1. SERVICES. "Services" means the obligations of Kanbay under Sections 1
through and including 11 of this Agreement and all consulting, development,
programming, conversion, management, operations, and other services to be
performed by Kanbay pursuant to each mutually agreed upon and executed Statement
of Work (each a "Statement of Work"). Each Statement of Work entered into by the
parties shall reference this Agreement and shall be attached hereto and made a
part of this Agreement; provided, however, the contents of any Statement of Work
shall take precedence over any conflicting provision in this Agreement to the
extent necessary to resolve any such conflict. Kanbay shall perform all Services
at the location(s), on the date(s), and during the term provided for in such
Statement of Work, and any applicable Termination Assistance Period (as such
term is defined in Section 9.2.1 of this Agreement).
1.2. RELATIONSHIP OF THE PARTIES. Kanbay shall be an independent contractor
of X.X. Xxxxxxx. As between Kanbay and X.X. Xxxxxxx, all persons retained by
Kanbay to perform Services for X.X. Xxxxxxx hereunder shall be employees or
subcontractors of Kanbay and shall not be employees of X.X. Xxxxxxx.
1.3. PLACE OF WORK. Kanbay's personnel will perform all work for X.X.
Xxxxxxx at the X.X. Xxxxxxx' premises designated by X.X. Xxxxxxx in its sole
discretion, except when it is determined by X.X. Xxxxxxx that it is mutually
beneficial to have a project or task performed off-site or otherwise agreed by
the parties in an applicable Statement of Work. No Services shall be performed
from, through or using a location outside the United States, except as may be
expressly authorized by X.X. Xxxxxxx, in its sole discretion, in writing in an
applicable Statement of Work.
1.4. KANBAY PERSONNEL. Unless otherwise provided in a Statement of Work,
before assigning an individual to perform Services for X.X. Xxxxxxx, Kanbay
shall notify X.X. Xxxxxxx of the proposed assignment and, subject to applicable
Law, provide X.X. Xxxxxxx with any information regarding the individual that
X.X. Xxxxxxx requests. X.X. Xxxxxxx may interview the personnel Kanbay proposes
to assign to X.X. Xxxxxxx' work, including to determine if such personnel are
appropriate for the work based on their specific or general skills or their
background and experience. X.X. Xxxxxxx has the right to require replacement of
any individual assigned to perform Services to X.X. Xxxxxxx who is
unsatisfactory to X.X. Xxxxxxx for any reason, and Kanbay shall use commercially
reasonable efforts to provide a qualified replacement as soon as practicable.
The individuals designated in the applicable Statement of Work as assigned to
perform Services for X.X. Xxxxxxx on a full-time basis will remain dedicated on
a full-time basis to the X.X. Xxxxxxx project for which they were assigned
throughout the duration of the project, and such individuals will not be
reassigned by Kanbay to any other project without X.X. Xxxxxxx' prior written
consent. In the event that any individual assigned to perform Services for X.X.
Xxxxxxx is replaced, Kanbay shall ensure an orderly succession and knowledge
transfer without disruption to such Services or X.X. Xxxxxxx' business.
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1.5. CONDUCT OF KANBAY PERSONNEL. While at X.X. Xxxxxxx' premises, Kanbay
and Kanbay personnel shall (a) comply with the requests, rules and regulations
of X.X. Xxxxxxx regarding safety and health, personal and professional conduct
(including adhering to general safety practices or procedures) generally
applicable to such X.X. Xxxxxxx premises and (b) otherwise conduct themselves in
a businesslike manner. Kanbay shall require all Kanbay personnel having access
to X.X. Xxxxxxx Confidential Information to maintain and enforce the provisions
of the Confidentiality Agreement referenced in Section 5.1 below.
1.6. NON-COMPETITION. Kanbay shall not assign any Kanbay personnel
(including Kanbay employees or contractors) that are delivering Services to X.X.
Xxxxxxx hereunder to the account of any competitor of X.X. Xxxxxxx without X.X.
Xxxxxxx' prior consent while such personnel are assigned to X.X. Xxxxxxx'
account or otherwise providing any Services under this Agreement.
2. X.X. XXXXXXX RESPONSIBILITIES
2.1. COOPERATION. X.X. Xxxxxxx shall cooperate with Kanbay by providing to
Kanbay such information and access to X.X. Xxxxxxx'x personnel, facilities,
equipment, databases, software, and other resources as are specifically set out
and agreed to in a Statement of Work.
3. FEES AND PAYMENTS
3.1. FEES. The fees for Kanbay's Services will be charged in U.S. dollars on
the terms and at the rates specified in the applicable Statement of Work.
3.2. EXPENSES. X.X. Xxxxxxx shall reimburse Kanbay for all actual expenses
that are authorized by X.X. Xxxxxxx in an applicable Statement of Work or
otherwise agreed in writing in advance, reasonably incurred by Kanbay and Kanbay
personnel in the course of performing the Services hereunder and evidenced by
receipts provided to X.X. Xxxxxxx ("Expenses").
3.3. INVOICES. Unless otherwise specified in the applicable Statement of
Work, Kanbay will invoice X.X. Xxxxxxx monthly ("Invoice Period") for the
Services furnished and Expenses incurred during the immediately preceding
Invoice Period. Invoices for Services rendered on a time-and-materials basis
will indicate a breakdown and distribution of charges, by individual, at the
rates specified in the applicable Statement of Work. Statements of Work for
Services rendered on a fixed-fee basis will indicate the basis upon which the
fees are due and payable (E.G., milestones achieved or dates passing).
3.4. TAXES. In addition, X.X. Xxxxxxx shall be responsible for paying any
applicable sales, use, excise, value added, or similar taxes, duties, or
assessments imposed upon the Services rendered hereunder by any federal, state,
local, or foreign government authority, exclusive of any taxes based upon
Kanbay's income or payroll; provided, however, that X.X. Xxxxxxx shall not be
responsible for any withholding tax on cross-border or other payments made
between Kanbay and its Affiliates or contractors. X.X. Xxxxxxx and Kanbay shall
cooperate to segregate the fees into the following separate payment streams: (a)
those for taxable Services; (b) those for nontaxable Services; and (b) those for
which a sales, use or other similar tax has already been paid. In addition, each
of X.X. Xxxxxxx and Kanbay shall cooperate with the other to more accurately
determine a party's tax liability and to minimize such liability, to the extent
legally permissible.
3.5. PAYMENTS. Each accurate invoice shall be due and payable to Kanbay, at
the address specified in the preamble to this Agreement, in U.S. dollars within
thirty (30) calendar days after receipt of such accurate invoice and any past
due undisputed amounts shall thereafter accrue interest, until paid, at the
lesser of 1.5% per month or the maximum interest rate permitted under applicable
law.
3.6. NO OTHER CHARGES. Except as expressly set forth in this Agreement,
including in an applicable Statement of Work, there shall be no charges, fees,
expenses, costs or other amounts payable by X.X. Xxxxxxx in respect of the
Services.
3.7. COMPENSATION OF KANBAY'S PERSONNEL. Kanbay shall bear sole
responsibility for payment of compensation to its personnel. Kanbay shall pay
and report, for all personnel
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assigned to X.X. Xxxxxxx' work, federal and state income tax withholding, social
security taxes, and unemployment insurance applicable to such personnel as
employees of Kanbay. Kanbay shall bear sole responsibility for any health or
disability insurance, retirement benefits, or other welfare or pension benefits,
if any, to which such personnel may be entitled. Kanbay agrees to, at its sole
expense, defend, indemnify, and hold harmless X.X. Xxxxxxx, X.X. Xxxxxxx'
Affiliates, officers, directors, employees and agents, and the administrators of
X.X. Xxxxxxx' benefit plans, from and against any claims, liabilities, or
expenses (including reasonable attorney fees) relating to Kanbay's obligations
or liabilities for such compensation, tax, insurance, or benefit matters,
provided that X.X. Xxxxxxx shall promptly notify Kanbay of each such claim when
and as it comes to X.X. Xxxxxxx'x attention, X.X. Xxxxxxx shall cooperate with
Kanbay in the defense and resolution of such claim, and X.X. Xxxxxxx shall not
settle or otherwise dispose of such claim without Kanbay's prior written
consent, such consent not to be unreasonably withheld.
3.8. REVIEW OF BACKGROUND. Kanbay shall obtain the consent from each person
assigned to perform Services for X.X. Xxxxxxx to allow X.X. Xxxxxxx or its
agents to conduct a review of such person's background, including but not
limited to, consent to obtain and use the fingerprints of each such person to
conduct a background review.
3.9. LEGAL STATUS. Except to the extent X.X. Xxxxxxx authorizes Services to
be performed from a location outside the United States in accordance with
Section 1.3 of this Agreement, Kanbay shall only assign persons to perform
Services for X.X. Xxxxxxx who are legally eligible to work in the United States
in accordance with all local, state and federal Laws. Kanbay shall notify X.X.
Xxxxxxx in writing of any restrictions of any nature regarding the legal
eligibility to work of any person assigned to perform Services for X.X. Xxxxxxx,
including, but not limited to, the expiration dates for any work VISA or other
time-restricted work permit. The foregoing obligations of Kanbay shall not apply
with respect to the personnel formerly employed by X.X. Xxxxxxx and transitioned
to employment with Kanbay pursuant to Statement of Work No. 001.
3.10. STATE AND FEDERAL TAXES. As neither Kanbay nor its personnel are X.X.
Xxxxxxx' employees, X.X. Xxxxxxx will not provide Kanbay's personnel with any
benefits or commitments inconsistent with any of the benefits or commitments
provided by Kanbay. Likewise, X.X. Xxxxxxx will not take any action with respect
to Kanbay's personnel inconsistent with any action taken by Kanbay. In
particular and without limiting the foregoing:
- X.X. Xxxxxxx will not withhold FICA (Social Security) from Kanbay's
payments.
- X.X. Xxxxxxx will not make state or federal unemployment insurance
contributions on behalf of Kanbay or its personnel.
- X.X. Xxxxxxx will not withhold state and federal income tax from payment
to Kanbay.
- X.X. Xxxxxxx will not make disability insurance contributions on behalf
of Kanbay.
- X.X. Xxxxxxx will not obtain workers' compensation insurance on behalf of
Kanbay or its personnel.
4. OWNERSHIP
4.1. X.X. XXXXXXX PROPERTIES. Software, owned or developed by, or licensed
to X.X. Xxxxxxx, methodologies, techniques, software libraries, tools,
algorithms, materials, products, ideas, designs, and know-how (including all
copies, enhancements, modifications, revisions, and derivative works of any of
the foregoing) that existed prior to the Effective Date or are acquired by X.X.
Xxxxxxx from a third party thereafter or developed independently and outside the
scope of this Agreement (and associated intellectual property rights)
("Pre-existing X.X. Xxxxxxx Properties") and any
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software, designs, content, methodologies, techniques, processes, inventions,
materials or other deliverables developed in whole or in part by Kanbay or its
Affiliates or contractors, or otherwise provided to X.X. Xxxxxxx or its
Affiliates, in connection with this Agreement (and associated intellectual
property rights) other than Kanbay Properties shall be the property of X.X.
Xxxxxxx ("Deliverables") (Pre-existing X.X. Xxxxxxx Properties and Deliverables
together shall be jointly referred to as "X.X. Xxxxxxx Properties"). As between
Kanbay and X.X. Xxxxxxx, X.X. Xxxxxxx will at all times be and remain the sole
and exclusive owner of the X.X. Xxxxxxx Properties. All Deliverables shall
belong exclusively to X.X. Xxxxxxx and shall, to the extent possible, be
considered a work made for hire for X.X. Xxxxxxx within the meaning of Title 17
of the United States Code. Kanbay automatically assigns, and shall cause its
Affiliates, contractors and personnel automatically to assign, at the time of
creation of the Deliverable, without any further consideration, any right,
title, or interest it or they may have in such Deliverable, including any
copyrights or other intellectual property rights pertaining thereto.
Notwithstanding the foregoing, X.X. Xxxxxxx shall have no ownership or other
rights in or with respect to any Deliverable (or portion thereof) created by
Kanbay hereunder until full payment has been made to Kanbay for the Services
relating to such Deliverable (or portion thereof). Except as expressly
authorized in a Statement of Work accepted hereunder, Kanbay will not copy,
modify, distribute or transfer (by any means), display, sublicense, rent,
reverse engineer, decompile, or disassemble the X.X. Xxxxxxx Properties.
4.2. KANBAY PROPERTIES; GENERAL DEFINITION OF "PROPERTIES". Proprietary or
third party software, methodologies, techniques, software libraries, tools,
algorithms, materials, products, ideas, designs, and know-how used by Kanbay or
its Affiliates or contractors in providing Services (including all copies,
enhancements, modifications, revisions, and derivative works of any of the
foregoing) that: (a) existed prior to the Effective Date, or (b) are acquired by
Kanbay from a third party or developed independently of providing the Services
hereunder shall be the property of Kanbay ("Kanbay Properties"). As between
Kanbay and X.X. Xxxxxxx, Kanbay shall at all times be and remain the sole and
exclusive owner of the Kanbay Properties. Except as expressly authorized in
Section 4.3 of this Agreement or a Statement of Work accepted hereunder, X.X.
Xxxxxxx will not copy, modify, distribute or transfer (by any means), display,
sublicense, rent, reverse engineer, decompile, or disassemble the Kanbay
Properties. The term "Properties" shall mean the X.X. Xxxxxxx Properties and
Kanbay Properties collectively, and "Property" shall mean a X.X. Xxxxxxx
Property or Kanbay Property individually.
4.3. LICENSE TO USE KANBAY PROPERTIES. Kanbay hereby grants to X.X. Xxxxxxx
a perpetual, world-wide, royalty-free, non-exclusive, non-transferable (except
in accordance with Section 11.10 of this Agreement), irrevocable license to (and
to permit X.X. Xxxxxxx Affiliates, agents and customers to) use, execute,
reproduce, transmit, display, perform, and create derivative works from any
Kanbay Properties incorporated into, made a part of or necessary for the use of
any of the X.X. Xxxxxxx Properties. So long as Kanbay is not in material breach
of any obligation under the applicable Statement of Work, the foregoing shall be
subject to Kanbay's receipt of payment of all undisputed amounts (and all
amounts that X.X. Xxxxxxx is obligated to pay upon conclusion of the Dispute
Resolution process provided in Section 11.13, below) for the Services that
produced the applicable Deliverables.
4.4. RESIDUALS. Notwithstanding anything to the contrary herein, the parties
and their personnel shall be free to use and employ their general skills,
know-how, methods, techniques, or skills gained or learned during the provision
of any Services (if such have general applicability beyond the specific Services
delivered under the applicable Statement of Work and are not intentionally
memorized for the purpose of later recording or use), so long as they acquire
and apply such information without disclosure of any Confidential Information of
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the other party and without unauthorized use or disclosure of the other party's
Properties.
4.5. THIRD-PARTY PROPERTIES. Except to the extent necessary to effectuate
the assignments to X.X. Xxxxxxx of Deliverables and the license granted to X.X.
Xxxxxxx in respect of Kanbay Properties, under Sections 4.1 and 4.3 of this
Agreement, respectively, nothing herein shall cause or imply any sale, license,
or other transfer of proprietary rights of or in any third party software or
products from one party to this Agreement to the other party.
5. CONFIDENTIALITY
5.1. GENERAL. The parties agree that the exchange of Confidential
Information between the parties shall be governed by the Confidentiality
Agreement between them dated December 16, 2003 (the "Confidentiality
Agreement"), the terms of which are incorporated herein and made an integral
part hereof. The parties agree that the Kanbay Properties and the X.X. Xxxxxxx
Properties are Confidential Information under the Confidentiality Agreement, as
are all documentation, descriptions, and embodiments thereof.
5.2. AGE INDIVIDUAL DATA. Without limiting Kanbay's obligations under the
Confidentiality Agreement, Kanbay shall not, and shall ensure that its
Affiliates and contractors do not, access, alter, transfer or otherwise process
any AGE Individual Data except in accordance with any applicable Statement of
Work. X.X. Xxxxxxx shall not provide, deliver, or allow access to any AGE
Individual Data, or request Kanbay to process any AGE Individual Data, except in
accordance with any applicable Statement of Work. If an applicable Statement of
Work specifically requires Kanbay to access, alter, transfer or otherwise
process any AGE Individual Data, Kanbay shall, and shall cause its Affiliates
and contractors to, provide X.X. Xxxxxxx with such assistance, information and
cooperation as X.X. Xxxxxxx may request to enable X.X. Xxxxxxx to allow any
client, person or entity to exercise any of its, his or her or its rights under
Law in relation to the AGE Individual Data. "AGE Individual Data" shall mean any
data relating to employees or past, current or potential customers of X.X.
Xxxxxxx or its Affiliates, or which is personally identifiable to any
individual, including any data subject to any Laws relating to data privacy,
trans-border data flow or data protection, such as the Xxxxx-Xxxxx-Xxxxxx Act
(U.S.), the Personal Information Protection and Electronic Documents Act
(Canada) and the implementing legislation and regulations of the European Union
member states under the European Union Directive 95/46/EC. For purposes of
clarity, AGE Individual Data is and shall be treated as Confidential
Information, subject to the additional limitations of this Section 5.2.
5.3. ACCESS AND RETURN OF CONFIDENTIAL INFORMATION. X.X. Xxxxxxx shall have
unrestricted access to, and the right to review and retain the entirety of, all
computer or other files containing Confidential Information of X.X. Xxxxxxx.
Upon request by X.X. Xxxxxxx at any time, Kanbay shall (a) promptly return to
X.X. Xxxxxxx, in the format and on the media as originally supplied by X.X.
Xxxxxxx, all or any part of X.X. Xxxxxxx Confidential Information and (b) erase
or destroy all or any part of X.X. Xxxxxxx Confidential Information in Kanbay's
possession or the possession of Kanbay's Affiliates or contractors, in each case
to the extent so requested by X.X. Xxxxxxx, and deliver to X.X. Xxxxxxx a
written certification of such erasure or destruction signed by an authorized
representative of Kanbay.
6. INDEMNIFICATION
6.1. INTELLECTUAL PROPERTY. If either party (each, as applicable, an
"Indemnitee") becomes subject to a claim against it that any portion of the
Properties supplied by the other party (an "Indemnitor") (i.e., the X.X. Xxxxxxx
Properties in the case of X.X. Xxxxxxx as Indemnitor, and the Kanbay Properties
or Deliverables, in the case of Kanbay as Indemnitor) infringes a proprietary
right of a third party, the Indemnitor shall, with respect to and to the extent
of the portion of the claim pertaining to such Property, at its sole expense,
defend, indemnify and hold harmless the Indemnitee with respect to such claim
and all costs, expenses (including reasonable attorneys' fees), fines,
penalties, deficiencies, losses, liabilities (including
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settlements and judgments) resulting from, arising from or relating to such
claim. THIS SECTION SETS FORTH THE COMPLETE LIABILITY OF THE PARTIES WITH
RESPECT TO INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS.
6.2. SOLE CONTROL. If an Indemnitee becomes subject to a third party claim,
notice thereof shall be given by the Indemnitee to the Indemnitor as promptly as
practicable. Any delay by the Indemnitee in providing such notice shall not
limit the Indemnitor's obligations pursuant to this Agreement except to the
extent of any losses caused by such delay. To the extent of the portion of the
claim for which the Indemnitor is responsible pursuant to this Agreement, the
Indemnitor under any of the indemnities set forth in this Agreement shall
promptly assume and have sole control of the defense of any such claim and all
negotiations for settlement; provided, however, that the Indemnitee may, at its
own cost, participate, through its attorneys or otherwise, in such
investigation, trial and defense of such claim and any appeal arising therefrom.
The Indemnitee shall cooperate, at the cost of the Indemnitor, with the
Indemnitor in the investigation, trial and defense of such claim and any appeal
arising therefrom. The Indemnitor shall not be obligated to indemnify the
Indemnitee under any settlement made without the Indemnitor's consent or in the
event the Indemnitee fails to reasonably cooperate (at the Indemnitor's expense)
in the defense of any such claim. The Indemnitor shall have no authority to make
any admission on behalf of the Indemnitee or enter into any agreement imposing
an affirmative obligation on the Indemnitee without the Indemnitee's prior
written consent.
6.3. OPTION TO AVOID INFRINGEMENT. Without limiting Kanbay's indemnification
obligations hereunder, in the event that in Kanbay's opinion, any portion of the
Kanbay Properties or any Deliverable developed in connection with this Agreement
is likely to or does become the subject of a claim of infringement of any
letters patent, copyright, trademark, service xxxx, trade name, trade secret or
other intellectual or proprietary right of any third party (the "Disputed
Portion"), Kanbay may, at its sole option and expense, procure for X.X. Xxxxxxx
the right to continue using the Disputed Portion, modify the Disputed Portion to
make it noninfringing, or replace the Disputed Portion with a substantially
similar, noninfringing replacement. If Kanbay does not exercise one of the above
options, (i) Kanbay shall send X.X. Xxxxxxx a written notice requiring X.X.
Xxxxxxx to terminate its use of the Disputed Portion within a reasonable period
(but not less than thirty (30) days), (ii) X.X. Xxxxxxx shall terminate its use
of the Disputed Portion within said period, and (iii) Kanbay shall refund a pro
rata portion of fees paid by X.X. Xxxxxxx to Kanbay representing the fees paid
for the development or provision of the Disputed Portion. If, however, X.X.
Xxxxxxx fails to terminate its use of the Disputed Portion after such reasonable
notice period, X.X. Xxxxxxx shall indemnify Kanbay for any and all claims of
infringement against it to the extent resulting from X.X. Xxxxxxx'x continued
use of the Disputed Portion.
7. REPRESENTATIONS AND WARRANTIES
7.1. REPRESENTATIONS AND WARRANTIES OF X.X. XXXXXXX. X.X. Xxxxxxx hereby
represents and warrants that it has and for the duration of this Agreement shall
have all rights, titles, or interests in the Pre-existing X.X. Xxxxxxx
Properties required for the performance of its obligations hereunder and has and
for the duration of this Agreement shall have the authority and the legal right
to enter into this Agreement.
7.2. REPRESENTATIONS AND WARRANTIES OF KANBAY.
7.2.1. RIGHTS AND TITLES. Kanbay hereby represents and warrants that it
has and for the duration of this Agreement shall have all rights, titles or
interests in the Kanbay Properties and Deliverables required for the
performance of its obligations hereunder and has and for the duration of this
Agreement shall have the authority and the legal right to enter into this
Agreement.
7.2.2. SERVICES. Kanbay further represents and warrants that the Services
provided under this Agreement will be of commercially reasonable quality in
accordance with any specifications or
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requirements set forth in a Statement of Work and will be performed in a good
and workmanlike manner and in accordance with industry standards. Without
prejudice to any other right or remedy available by law to X.X. Xxxxxxx, any
claim for breach of Kanbay's warranties under this Section 7.2.2 must be
made, by written notice to Kanbay, within sixty (60) days following the date
of completion of the Services for which the claim is made (or, with respect
to any Deliverables that were subject to acceptance testing specified in the
applicable Statement of Work, within sixty (60) days following the date of
acceptance). Kanbay shall have a thirty (30) day period following receipt of
any such notice in which to cure a breach.
7.2.3. COMPLIANCE WITH LAW. Kanbay is and for the duration of this
Agreement shall be in compliance with all federal, state, local and foreign
laws, governmental regulations, rules and requirements and binding
administrative and court orders (collectively "Laws") applicable to Kanbay,
including all Laws applicable to its provision of the Services.
7.3. NO OTHER WARRANTY. EXCEPT AS PROVIDED IN THIS AGREEMENT, (A) NEITHER
PARTY MAKES ANY REPRESENTATION OR WARRANTY OF ANY KIND, WHETHER EXPRESS OR
IMPLIED, FROM A COURSE OF PERFORMANCE OR DEALING, TRADE USAGE, OR OF
UNINTERRUPTED OPERATION WITHOUT ERROR, INCLUDING, BUT NOT LIMITED TO, THE
IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND
(B) WITHOUT LIMITING KANBAY'S OBLIGATION TO DELIVER THE SERVICES AND/OR
DELIVERABLES SET FORTH IN A STATEMENT OF WORK, KANBAY MAKES NO GUARANTEES WITH
REGARD TO THE RESULTS OBTAINED FROM THE OPERATION OR USE BY X.X. XXXXXXX OF THE
X.X. XXXXXXX PROPERTIES OR KANBAY PROPERTIES. THE LIMITED WARRANTY SET FORTH IN
THIS AGREEMENT IS MADE FOR THE BENEFIT OF X.X. XXXXXXX ONLY.
8. LIMITATION OF LIABILITY
KANBAY'S OR X.X. XXXXXXX' LIABILITY FOR ANY REASON (EXCLUDING X.X. XXXXXXX'
LIABILITY FOR PAYMENT OF KANBAY'S SERVICES FEES) AND UPON ANY CAUSE OF ACTION,
WHETHER SOUNDING IN TORT, CONTRACT, OR ANY OTHER LEGAL THEORY, SHALL AT ALL
TIMES AND IN THE AGGREGATE BE LIMITED TO THE GREATER OF: (A) $100,000.00, OR (B)
THE AMOUNTS PAID OR PAYABLE BY X.X. XXXXXXX TO KANBAY UNDER THE APPLICABLE
STATEMENT OF WORK
NEITHER PARTY SHALL BE LIABLE FOR ANY INDIRECT, CONSEQUENTIAL, EXEMPLARY,
INCIDENTAL, OR PUNITIVE DAMAGES, INCLUDING LOST PROFITS, EVEN IF THE PARTY HAS
BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
THE FOREGOING LIMITATIONS OF LIABLITY (INCLUDING THE DAMAGES CAP AND THE
EXCLUSIONS SET FORTH IN THE IMMEDIATELY PRECEDING TWO PARAGRAPHS) SHALL NOT
APPLY TO THE INDEMNIFICATION OBLIGATIONS SET FORTH HEREIN, A BREACH OF THE
CONFIDENTIALITY AGREEMENT, OR DAMAGES CAUSED BY GROSS NEGLIGENCE, RECKLESS
CONDUCT OR WILLFUL MISCONDUCT.
9. TERM AND TERMINATION
9.1 The term of this Agreement shall commence on the Effective Date set
forth above and, unless earlier terminated in accordance with this Section 9,
shall continue through the end of X.X. Xxxxxxx' current fiscal year (which runs
from March 1 through February 28). At the end of X.X. Xxxxxxx' fiscal year, this
Agreement will be automatically renewed for successive one-year terms (to run
concurrently with X.X. Xxxxxxx' fiscal year) unless earlier terminated in
accordance with this Section 9.
This Agreement may be terminated (a) by either party if the other party defaults
in the performance of any of its material obligations
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(or repeatedly defaults in the performance of any of its other obligations)
under this Agreement (i) upon at least thirty (30) days' notice to the breaching
party if such default is capable of being cured and the breaching party does not
cure such default within thirty (30) days from the non-breaching party's default
notice or (ii) immediately upon notice to the breaching party if such default is
not capable of being cured, and (b) by either party upon notice received 90 days
prior to the end of the then current term; provided that this Agreement shall
not be terminated under this clause (b) with respect to all outstanding
Statements of Work until such Statements of Work expire or are completed or
terminated in accordance with their terms, including any notice requirements
provided therein. Absent any breach by Kanbay regarding the applicable Services,
X.X. Xxxxxxx' obligation to make payment for Services performed by Kanbay prior
to termination shall survive any termination of this Agreement.
Unless otherwise provided in a Statement of Work, X.X. Xxxxxxx may, at its
sole option, terminate any Statement of Work or any portion thereof, without
cause upon thirty (30) days prior written notice to the other party. Upon
receipt of notice of termination by X.X. Xxxxxxx, Kanbay shall advise X.X.
Xxxxxxx of the extent to which performance has been completed through the date
of the notice of termination. Kanbay shall be paid an equitable amount for all
work performed in accordance with this Agreement and the applicable Statement of
Work through the date of the notice of termination, or such other amount as may
be specified in the applicable Statement of Work.
9.2 TERMINATION ASSISTANCE SERVICES.
9.2.1 GENERAL. Kanbay shall, upon X.X. Xxxxxxx' request during a
Termination Assistance Period for a Statement of Work, provide
Termination Assistance Services in respect of such Statement of Work.
There shall be no additional charge for the Termination Assistance
Services to the extent that the fees being paid by X.X. Xxxxxxx to Kanbay
already include Kanbay resources that can be used to provide the
Termination Assistance Services. To the extent the resources included in
the fees being paid by X.X. Xxxxxxx to Kanbay cannot be used to provide
the Termination Assistance Services, such Termination Assistance Services
shall be provided at the rates set forth for such Services in the
applicable Statement of Work, or if not so set forth, at Kanbay's
standard rates then in effect for such services immediately prior to the
Termination Assistance Period. The quality and level of Services during a
Termination Assistance Period shall not be degraded and Kanbay shall
provide the Termination Assistance Services without causing any material
disruptions to the business of X.X. Xxxxxxx. After the expiration of a
Termination Assistance Period, Kanbay shall answer questions from X.X.
Xxxxxxx regarding the Services for a reasonable period of time on an "as
needed" basis at Kanbay's then standard rates. "Termination Assistance
Period" shall mean each period of time, as designated by X.X. Xxxxxxx,
commencing on the earlier of (x) the effective date of expiration or
termination of the applicable Statement of Work, and (y) another date
designated by X.X. Xxxxxxx; and continuing for up to 6 months after such
commencement, as designated by X.X. Xxxxxxx. "Termination Assistance
Services" shall mean (i) the Services, to the extent requested by X.X.
Xxxxxxx during a Termination Assistance Period, (ii) the cooperation of
Kanbay, and Kanbay's Affiliates and contractors, with X.X. Xxxxxxx and
any third party(ies) designated by X.X. Xxxxxxx in the transfer of the
Services (or the wind-down, replacement or supplementation of Services)
to X.X. Xxxxxxx or a third party and (iii) any new services requested by
X.X. Xxxxxxx in order to facilitate the transfer of the Services (or the
wind-down, replacement or supplementation of Services) to X.X. Xxxxxxx or
a third party.
9.2.2 RETURN OF X.X. XXXXXXX PROPERTIES
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AND TERMINATION OF LICENSES TO KANBAY. Upon the expiration or termination
of a Statement of Work (or an applicable Termination Assistance Period),
(a) any and all licenses granted to Kanbay to perform Services under such
Statement of Work, shall automatically terminate, and (b) Kanbay shall
(1) deliver to X.X. Xxxxxxx, in the manner requested by X.X. Xxxxxxx, (A)
all of the X.X. Xxxxxxx Properties (including all Deliverables, whether
completed or in-progress) relating to such Statement of Work and (B) any
Kanbay Properties incorporated into, or made a part of or necessary for
the use of any of the X.X. Xxxxxxx Properties in connection with such
Statement of Work; in each case, in the form then in use and (2) destroy
or erase all other applicable copies of X.X. Xxxxxxx Properties relating
to such Statement of Work that are then in the possession of Kanbay, its
Affiliates or consultants. So long as Kanbay is not in material breach of
any obligation under the applicable Statement of Work, the foregoing
shall be subject to Kanbay's receipt of payment of all undisputed amounts
(and all amounts that X.X. Xxxxxxx is obligated to pay upon conclusion of
the Dispute Resolution process provided in Section 11.13, below) for the
Services that produced the applicable Deliverables.
10. EMPLOYEE SOLICITATION/HIRING
During the period beginning with the commencement date for Services under a
particular Statement of Work and ending six (6) months after the completion or
termination of the Statement of Work, each party and any individuals,
corporations, partnerships, limited liability companies, trusts, or legal
entities which control, are controlled by, or are under common control with such
party , or, in the case of X.X. Xxxxxxx, control, are controlled by or are under
common control with X.X. Xxxxxxx or its parent corporation, A.G., Xxxxxxx &
Sons, Inc. ("Affiliates") agree not to offer employment to or hire any
technical, sales, or managerial employee of the other party or its Affiliates
(collectively, the "Current Employer") who are directly involved in the Services
being performed under the Statement of Work. For purposes of the preceding
sentence, the term "employment" shall include any form of employment,
consulting, contract relationship, or other arrangement pursuant to which such
individual will, directly or indirectly, perform services for the new employer.
11. GENERAL
11.1. COMPLETE AGREEMENT. This Agreement, including any Statements of Work
hereunder and the Confidentiality Agreement, is the complete and exclusive
statement of the agreement of the parties with respect to the subject matter
hereof and supersedes and merges all prior proposals, understandings, and
agreements, whether oral or written, between the parties with respect to the
subject matter hereof. This Agreement may not be modified except by a written
instrument executed by authorized representatives of the parties. For the
purposes of this Agreement, an authorized representative of Kanbay shall be
deemed to mean the Chief Executive Officer, Chief Operating Officer or the Chief
Financial Officer. The pre-printed terms and conditions of any purchase order or
other ordering document issued by either party in connection with this Agreement
shall not be binding on the other party and shall not be deemed to modify this
Agreement.
11.2. NO WAIVER. No failure to exercise, and no delay in exercising, on the
part of either party, any right, power or privilege hereunder will operate as a
waiver thereof, nor will any party's exercise of any right, power or privilege
hereunder preclude further exercise of the same right or the exercise of any
other right hereunder.
11.3. ENFORCEABILITY. If any part of this Agreement shall be adjudged by any
court of competent jurisdiction to be invalid, illegal or unenforceable, the
validity, legality and enforceability of the remaining provisions shall not be
affected or impaired thereby and shall be enforced to the maximum extent
permitted by applicable Law.
11.4. FORCE MAJEURE. Either party shall be excused from performance and
shall not be
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liable for any delay in whole or in part, to the extent caused by the occurrence
of any Force Majeure Event beyond the reasonable control either of the excused
party or its subcontractors or suppliers, for as long as the Force Majeure Event
continues and the excused party continues to use its best efforts to recommence
performance whenever and to whatever extent possible without delay, including
through the use of alternate sources, workaround plans or other means. "Force
Majeure Events" shall be limited to the following: fire, flood, earthquake,
elements of nature or acts of God, acts of war, terrorism, riots, civil
disorders, rebellions or revolutions, or any other similar cause beyond the
reasonable control of the excused party.
11.5. NOTICES. Any notice required or permitted hereunder to the parties
hereto will be deemed to have been duly given only if in writing to the address
of the receiving party as set forth on the initial page hereof or such other
address as may be specified by such party in a notice delivered to the other
party in accordance with this Section and delivered by: (i) certified U.S. mail,
return receipt requested, postage prepaid; (ii) nationally recognized overnight
courier, delivery charges prepaid; or (iii) by hand delivery with signed
receipt. Any notice shall be deemed delivered: (a) on the fifth (5th) business
day following deposit of such notice with the U.S. Postal Service if notice is
given in accordance with (i), above; (b) on the second (2nd) business day
following deposit of such notice with the courier if notice is given in
accordance with (ii), above; or (c) on the date of actual delivery if notice is
given in accordance with (iii), above.
11.6. GOVERNING LAW, JURISDICTION AND VENUE. This Agreement shall be deemed
to have been made in, and shall be construed pursuant to the Laws of, the State
of Illinois, excluding its choice of Law principles.
11.7. PRESS RELEASE. Neither party shall use the other party's name in any
press release, advertising, promotional material or other public statement, or
communicate with a third party orally or in writing regarding the business
relationship of the parties, without the prior written consent of the other
party.
11.8. HEADINGS; SUBSECTIONS; INTERPRETATION. Section headings are provided
for convenience of reference and do not constitute part of this Agreement. Any
references to a particular section of this Agreement shall be deemed to include
reference to any and all subsections thereof. References to the words
"including, "includes" or "include" or the abbreviation "e.g." in this Agreement
(including any Statement of Work) shall mean "including, without limitation."
11.9. REFERENCES TO X.X. XXXXXXX. For purposes of clarity, to the extent an
Affiliate of X.X. Xxxxxxx is receiving Services hereunder, references in this
Agreement (including a Statement of Work) to X.X. Xxxxxxx as the recipient of
Services shall include such entity, and references to Services being performed
for or received by X.X. Xxxxxxx shall include the performance of such Services
for and receipt of such Services by such entity.
11.10. ASSIGNMENT. Neither party may assign or delegate any or all of its
rights (other than the right to receive payments) or its duties or obligations
hereunder without the consent of the other party, which consent shall not be
unreasonably withheld; provided, however, that either party may assign this
Agreement, without the need to obtain consent of the other party, to an
Affiliate of such party or to a successor in interest to substantially all of
the business of that party to which this Agreement relates. For purposes of
clarity, and without limitation, a non-assigning party's refusal to consent to
an assignment proposed by the other party shall be deemed reasonable if based on
grounds that the proposed assignee is not financially stable or is a competitor
of the non-assigning party. An assignee of either party authorized hereunder
shall be bound by the terms of this Agreement and shall have all of the rights
and obligations of the assigning party set forth in this Agreement. If any
assignee shall fail to agree to be bound by all of the terms and obligations of
this Agreement, then such assignment shall be deemed null and void and of no
force or effect.
11.11. SUBCONTRACTING. Provided that the applicable Statement of Work
specifies that all or any portion of the Services will be performed in a
location outside of the United States,
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Kanbay shall have the right to subcontract such Services to an Affiliate of
Kanbay located outside the United States. Kanbay agrees to provide all
information reasonably requested by X.X. Xxxxxxx regarding any Kanbay Affiliate
performing such Services both prior and subsequent to entering into a Statement
of Work.. Prior to subcontracting any of the Services to an Affiliate for
Services performed wholly within the United States or to any non-Affiliate,
Kanbay shall notify X.X. Xxxxxxx of the proposed subcontractor and shall obtain
X.X. Xxxxxxx' written approval of such subcontractor, to be provided in X.X.
Xxxxxxx' sole discretion. No subcontracting, whether to a Kanbay Affiliate or
any other party, shall release Kanbay from its responsibility for its
obligations under this Agreement. Kanbay shall be responsible for the work and
activities of each of its Affiliates and contractors, including compliance with
the terms of this Agreement. Kanbay shall be responsible for all payments to its
Affiliates and contractors. Kanbay shall promptly pay for all services,
materials, equipment and labor used by Kanbay in providing the Services. Kanbay
shall enter into confidentiality agreements with any subcontractors with
provisions at least as restrictive as the provisions of the Confidentiality
Agreement entered into between Kanbay and X.X. Xxxxxxx.
11.12. AUDITS.
11.12.1 GENERAL. Upon at least five (5) days prior written notice from
X.X. Xxxxxxx, Kanbay and its Affiliates and contractors shall provide X.X.
Xxxxxxx and X.X. Xxxxxxx' agents, regulators, accountants and auditors
(collectively, "X.X. Xxxxxxx Auditors") with access to, and any assistance
and information that they may reasonably require with respect to the
Services. If, as a result of an audit or portion thereof concerning fees,
X.X. Xxxxxxx determines that Kanbay has overcharged X.X. Xxxxxxx, X.X.
Xxxxxxx shall notify Kanbay of the amount of such overcharge and Kanbay
shall investigate the matter. If Kanbay's investigation confirms the
overcharge, it shall promptly pay to X.X. Xxxxxxx the amount of the
overcharge. If Kanbay's investigation does not confirm the overcharge, the
parties will use the dispute resolution process set forth in this Agreement
to resolve the matter.
11.12.2 QUALITY CERTIFICATIONS. Kanbay agrees to provide all information
and supporting documentation reasonably requested by X.X. Xxxxxxx regarding
Kanbay's CMM assessments and ISO certifications. Kanbay further agrees to
(i) provide audit reports related to the certifications and to update those
reports as periodically requested by X.X. Xxxxxxx, but not more than once
per year, (ii) make personnel available to discuss the certifications and
audit reports with X.X. Xxxxxxx, and (iii) provide X.X. Xxxxxxx with
documentation reflecting any corrective measures taken to address problems
identified in any audit.
11.12.3 COOPERATION AND RECORD RETENTION. Kanbay shall, and shall cause
its Affiliates and contractors to, provide to X.X. Xxxxxxx Auditors all
assistance required to enable X.X. Xxxxxxx to perform audits under this
Section 11.12 and to comply with applicable Law. For the duration of the
applicable Statement of Work and any subsequent Addenda thereto and for a
period of 2 years thereafter, Kanbay shall retain records and supporting
documentation sufficient to document the Services and the fees paid or
payable by X.X. Xxxxxxx under this Agreement.
11.13. DISPUTES.
11.13.1. INTERNAL DISPUTE RESOLUTION. All disputes arising under or
related to this Agreement shall be considered in person or by telephone by
the Contract Managers within 10 days after receipt of a notice from either
party's Contract Manager specifying the nature of the dispute (a "Dispute
Notice"); provided, however, that nothing herein shall prevent or limit a
party's right to immediately seek preliminary injunctive relief in a court
of Law. Unless the Contract Managers otherwise agree, either party may
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pursue its rights and remedies after the earlier of (a) the occurrence of
such meeting or telephone conversation and (b) 10 days after receipt of the
Dispute Notice. Unless a respective party notifies the other party of a
change in Contract Managers in accordance with Section 11.5 of this
Agreement, the Contract Manager for Kanbay shall be Xxxxx Xxxxx, and the
Contract Manager for X.X. Xxxxxxx shall be Xxx Xxxx.
11.13.2. CONTINUITY OF SERVICES. Kanbay acknowledges that the timely and
complete performance of its obligations pursuant to this Agreement is
important to the business, operations and prospects of X.X. Xxxxxxx.
Accordingly, in the event of a dispute between X.X. Xxxxxxx and Kanbay,
Kanbay shall continue to so perform its obligations under this Agreement and
X.X. Xxxxxxx shall continue to make undisputed payments during the
resolution of such dispute unless and until this Agreement has expired or is
terminated in accordance with its provisions and, in either case, all
applicable Termination Assistance Periods have expired.
11.14. INSURANCE.
During the term of this Agreement and any Termination Assistance Period(s),
Kanbay shall obtain and maintain at its own cost insurance of the following
types and amounts: (a) statutory workers' compensation in accordance with Law;
(b) employer's liability insurance in an amount not less than $$2,000,000.00 per
occurrence, covering bodily injury by accident or disease, including death; (c)
Commercial General Liability (including contractual liability insurance) in an
amount not less than $2,000,000.00 per occurrence; (d) Comprehensive Automobile
Liability covering all vehicles that Kanbay owns, hires or leases in an amount
not less than $2,000,000.00 (combined single limit for bodily injury and
property damage); and (e) All Risk Property insurance coverage in an amount not
less than the higher of the (1) fair market value, (2) X.X. Xxxxxxx' book value
and (3) replacement cost of X.X. Xxxxxxx hardware used by Kanbay personnel;and
(f), Prior to providing any professional services under this Agreement,
including, but not limited to software development, Kanbay shall obtain and
maintain Professional Services Liability ("Errors and Omissions") coverages in
amount of not less than $5,000,000 per loss, per year. Such policy shall provide
coverage for losses occurring on or before the date that any professional
services are provided under this Agreement, and renewal policies shall include a
continuity date that retrospectively covers any losses occurring on or before
the date that any professional services are provided under this Agreement; and
(g) carry a Fidelity Bond that includes, but is not limited to, Employee
Dishonesty, Theft, Forgery, and Computer Related Crime. The General Liability
policy shall be endorsed to be specifically primary and non-contributory with
any other policies carried by X.X. Xxxxxxx. The Workers' Compensation and
General Liability policies shall include a waiver of subrogation in favor of
X.X. Xxxxxxx. These policies shall be written with insurance companies that have
a A- rating or better according to the most recent A.M. Best guide, and shall
apply to covered losses caused by Kanbay, Kanbay Affiliates and any contractors
delivering Services under this Agreement.
11.14.1. Kanbay shall, upon X.X. Xxxxxxx' request, furnish to X.X.
Xxxxxxx certificates of insurance or other appropriate documentation
(including evidence of renewal of insurance) evidencing all coverages
referenced in Section 11.14.1 and, if and to the extent applicable, naming
X.X. Xxxxxxx as an additional insured under the Commercial General Liability
and as a loss payee under the All Risk Property. Such certificates or other
documentation shall include a provision whereby 30 days' notice must be
received by X.X. Xxxxxxx prior to coverage cancellation or material
alteration of the coverage by either Kanbay or Kanby's Affiliates or
contractors providing Services, or the applicable insurer. Such cancellation
or material alteration shall not relieve Kanbay of its continuing obligation
to maintain insurance coverage in accordance with this Section 11.14.2.
11.15. NO THIRD-PARTY BENEFIT. The provisions of this Agreement are for the
sole
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benefit of the parties hereto. This Agreement confers no rights, benefits, or
claims upon any person or entity not a party hereto.
11.16. EXPORT. Kanbay shall not knowingly export or re-export any personal
computer system, part, technical data or sub-elements under this Agreement,
directly or indirectly, to any destinations prohibited by the United States
Government. The term "technical data" in this context, means such data as is
defined as technical data by applicable United States export regulations.
11.17. COVENANT OF FURTHER ASSURANCES. X.X. Xxxxxxx and Kanbay covenant and
agree that, subsequent to the execution and delivery of this Agreement and,
without any additional consideration, each of X.X. Xxxxxxx and Kanbay shall
execute and deliver any further legal instruments and perform any acts that are
or may become necessary to effectuate the purposes of this Agreement.
11.18. SURVIVAL. Each of the provisions of this Agreement shall remain in
full force and effect through the End Date of this Agreement, and the terms of
Sections 1.2, 1.6, 4-6, 8, 9.2.2, 10, 11.1-11.3, 11.5-11.10, 11.12, 11.13,
11.15-11.19, and any other provisions which by their nature should survive,
shall survive such End Date. The "End Date" shall be the later of (a) the
effective date of the expiration or termination of this Agreement, and (b) the
last day of the last Termination Assistance Period to expire.
11.19. COUNTERPARTS. This Agreement may be executed in any number of
counterparts (including facsimile counterparts), each of which will be deemed an
original, but all of which taken together shall constitute one single agreement
between the parties.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
Effective Date.
KANBAY INCORPORATED:
By: /s/ Xxxxxxx Xxxxxxxx
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Name: XXXXXXX XXXXXXXX
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Title: VP & CFO
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X.X. XXXXXXX TECHNOLOGY GROUP,
INC.:
By: /s/ Xxxx Xxxxxx
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Name: XXXX XXXXXX
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Title: President & CIO
------------------------------
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