Exhibit 10.13 AGREEMENT NO. 7751
SERVICES AGREEMENT
This Services Agreement, including its attachments, constitutes the agreement
("Agreement") between Xxxxxxx Computer Resources, Inc. ("Vendor") and Nationwide
Mutual Insurance Company, Xxx Xxxxxxxxxx Xxxxx, Xxxxxxxx, Xxxx ("Customer"),
made this 11th day of December, 1996 ("Commencement Date").
Subject to the terms and conditions contained herein, Vendor agrees to provide
Customer, on a non-exclusive basis, the Equipment and services as set forth in
this Agreement. For purposes of this Agreement, the term "Customer" shall be
deemed to include all Nationwide Insurance Enterprise companies, all locations.
Each such company ordering Equipment may choose to be separately invoiced for
its orders, however, it is Customer's intent to utilize an Enterprise-wide
summary invoice.
1. PRODUCTS/PRICING:
The Equipment currently contemplated for purchase pursuant to this
Agreement and associated pricing are as follows:
Product* Manufacturer Price**
------- ------------ -----
Servers Compaq 3%
Servers IBM 3%
Printers Hewlett-Packard 3%
* detailed product descriptions contained in attached Exhibit 1.
** price is listed as a percentage xxxx-up above actual manufacturers'
price charged to Vendor, or other party in vertical or horizontal privity
with Vendor.
Regardless of manufacturer, additional products and components, including
alternate Equipment as defined in Section 4. and follow-on products to the
items contained in attached Exhibit 1, are offered to Customer at a price
equal to the actual manufacturer's price charged to Vendor plus 3%. All
such additional products and components are deemed "Equipment" for purposes
of this Agreement.
Vendor agrees to provide a monthly report to Customer listing the actual
manufacturer's price, vendor xxxx-up, and Customer price for each Equipment
item purchased by Customer in the previous month, and shall provide
supporting detailed manufacturer's invoices if so requested by Customer.
2. DELIVERY:
a. Vendor shall deliver the Equipment to Customer at the location and by
the date set forth in the applicable order. Vendor may invoice
Customer for the actual shipping costs associated with shipping the
Equipment, except that Vendor shall not invoice
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Customer for costs in excess of Vendor's standard second-day shipping
costs unless expedited shipping is requested by Customer in writing.
b. Subject to Section 4., Vendor warrants that it is capable of
delivering Equipment within 6 business days of Vendor's receipt of an
order (date of receipt of order is first business day). Customer may
cancel any order, or portion thereof, without charge or penalty,
provided that such order, or portion thereof, is canceled prior to the
system being configured by Vendor per Customer's order. Customer may,
at its election, return any Equipment items within 30 days of receipt.
Except for returns in the first 30 days due to Equipment found to be
defective or not conforming to Customer's order, Customer shall pay
software load fees, configuration fees, and delivery and return
shipping costs. Customer will not incur any restocking charges or
other costs or penalties with respect to such elective returns.
3. PAYMENT TERMS:
The purchase price of the Equipment shall be payable to Vendor by Customer
within 30 days of invoice date. Customer will also be responsible for any
sales taxes or other taxes applicable to the use, delivery, or installation
of the Equipment. Such taxes shall be payable by Customer within 30 days
of receipt of an itemized invoice from Vendor. In no event shall Customer
be responsible for any taxes based on the net income of Vendor. Any other
amounts which may become payable by Customer pursuant to this Agreement,
shall be payable by Customer within 30 days of receipt of an itemized
invoice from Vendor.
Invoices may be issued by Vendor upon last shipment of Equipment identified
on the invoice, unless partial shipment is approved by Customer (in which
event Vendor may invoice upon last shipment of Equipment in the partial
shipment). In the event there is a dispute as to the invoice, Customer
shall pay the undisputed portion of the invoice by the payment due date as
set forth above. Payments past due will incur interest at the rate of 1%
per month.
4. EQUIPMENT AVAILABILITY:
For purchases ordered by Customer in connection with a Customer project,
Customer will provide Vendor with written non-binding forecasts detailing
anticipated Equipment needs a minimum of 60 days prior to the anticipated
delivery date. Customer will provide Vendor with written non-binding
forecasts detailing actual Equipment needs for such projects a minimum of
30 days prior to the anticipated delivery date. Non-binding forecasts do
not create commitments by Customer to purchase forecasted Equipment.
Vendor warrants that all Equipment subject to a 30-day forecast will be
available for delivery to Customer in accordance with Section 2. above. In
the event that such Equipment items are not available, Vendor agrees, at
Customer's request, to provide alternate Equipment deemed acceptable by
Customer. Pricing for alternate Equipment shall be in accordance with
Section 1, and shall otherwise be subject to the terms and conditions of
this Agreement.
5. EQUIPMENT ASSEMBLY, CONFIGURATION AND TESTING
Vendor agrees to provide configuration services as defined below for an
additional $24.00 per configuration ($10.00 for printers) regardless of the
number of components ordered per configuration.
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a. ADDITIONAL COMPONENT INSTALLATION. All features and components
requested by Customer, but not installed by manufacturer, will be
installed by Vendor.
b. TESTING/BURN-IN. Vendor will test each completed configuration by
whatever method Vendor feels will best guarantee meeting Equipment
reliability standards as defined in Section 6. Vendor will replace
any components found to be defective during this testing process, and
repeat testing.
c. ATTACH CUSTOMER LOGO. At Customer's request, Vendor will attach a
metal sticker to each Equipment item indicating the name of the
applicable Nationwide Insurance Enterprise company. These stickers
will be provided to Vendor by Customer.
d. ASSET TRACKING/BAR CODING/LABELS. Vendor shall attach labels and bar
codes (generated by Vendor at Customer's request) as may be specified
by Customer. The bar coded information must be scanned into
Customer's asset tracking system (AIMS). Customer shall provide
Vendor with the hardware and connectivity to AIMS to support this
process.
e. INSTALLATION INSTRUCTIONS. If requested by Customer, Vendor will
package with the Equipment all manufacturer and Customer supplied
installation instructions.
f. REPACKAGING. Vendor will repackage each Equipment item into the
original container, include all Customer-supplied materials (e.g.,
mouse pads, surge protectors, etc.) and attach any labels or bar codes
(generated by Vendor at Customer's request) as may be specified by
Customer. Vendor will verify that the serial numbers of the Equipment
match the corresponding serial numbers reflected on the box and the
packing slip, and will provide Customer with a listing of such serial
numbers. Any consolidation of components, e.g., packing the keyboard
in the CPU unit box, and any repackaging in other than the original
container requires Customer's prior approval.
g. STATISTICAL REPORTING. Vendor will provide Customer with monthly
reports detailing number of Equipment stages (i.e., Equipment items
assembled, configured and/or tested), number of errors found, and in
what phase of diagnostics they were found. Additionally, Vendor will
provide Customer with read access to Customer data on Vendor's
database so that Customer may produce its own customized reports.
h. WEEKLY STATUS MEETINGS. If requested by Customer, Vendor will
participate in status meetings with Customer personnel, no more often
than weekly, to discuss billing, invoicing, order reports, and problem
identification and reconciliations, and any other matters pertaining
to the implementation of this Agreement.
i. RETURNED PHONE CALLS. Vendor agrees to return Customer's phone calls
within one business hour of Customer's initial phone call, based on an
8:00 A.M. to 5:00 P.M. ET business day.
Additionally, Vendor may charge Customer a fee of $35.00 for installing
Windows NT software, if such installation is requested by Customer.
Customer is solely responsible for obtaining licenses for all software
installed and (provided Vendor has properly followed
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Customer's software image installation instructions) will indemnify and
save Vendor harmless therefrom.
Configuration services shall take place at:
Xxxxxxx Computer Resources
0000 Xxxxxx Xxxxx Xxxx
Xxxxxx, Xxxxxxxx 00000
Vendor agrees to give Customer 90 days' advance written notice of its
intention to change this location.
6. SERVICE LEVEL AGREEMENTS AND LIQUIDATED DAMAGES:
DEAD ON ARRIVAL
DOA Definition: Any Equipment item which experiences a failure upon
installation at the end-user's site, or any partial shipment of Equipment
ordered that prevents successful installation at the end-user's site.
Failure Definition: Any Equipment item which fails to perform the
functions expected based on the Equipment, peripherals and software
installed and configured on the machine by Vendor.
Require Service Level: Less than 2% of Equipment items delivered.
Liquidated Damages:
In any single quarter (as measured from the Commencement Date), if the DOA
failure rate for Equipment items exceeds 2% of Systems delivered, then a
payment would be made to Customer within 15 days of the end of the
applicable quarter, as liquidated damages for Customer's loss of its
bargain and not as a penalty, of:
DOA 2-2.99% $7,500
DOA 3-3.99% $25,000
DOA 4%+ $45,000
At the end of the initial 12-month period, and the end of each subsequent
12-month period that this Schedule remains in effect, if the average DOA
failure rate for the entire year is below the 2% level, then any payments
made to Customer in the previous year pursuant to this Section would be
refunded to Vendor. Additionally, Vendor shall, upon notification by
Customer, over-night express replacement Equipment in any DOA situation so
as to enable successful installation at the end-user's site. For the first
10 (ten) such over-nite shipments to the end-user's site in DOA situations,
Vendor shall bear all costs associated with shipping. Customer will be
responsible for such costs for the eleventh and subsequent DOA events.
Vendor shall bear all express over-nite shipping costs of replacement
Equipment for Equipment that arrives DOA at Customer's Columbus, Ohio
staging location.
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DELIVERY PERIOD
Delivery Definition: Delivery of Equipment, configured as requested in the
purchase order, to the location specified in the order.
Required Service Level: Delivery by date specified in Customer's order,
provided a minimum of 6 business days is allowed for delivery from the date
of Vendor's receipt of purchase order (date of receipt of order is first
business day).
Liquidated Damages:
For each Equipment item delivered later than the requested delivery date,
1% of the invoice value of the Equipment shall be paid to Customer for each
business day or fraction thereof that the Equipment is late (up to a
maximum of 5%), as liquidated damages for Customer's loss of its bargain
and not as a penalty. Additionally, Vendor recognizes that Customer will
have a maintenance provider at the delivery location to install the
Equipment. If Equipment is delivered late by Vendor and Customer thereby
incurs a service charge from the maintenance provider for idle time, Vendor
shall reimburse Customer for such service charge.
7. WARRANTY/LIMITATION OF LIABILITY:
Vendor shall immediately register the serial number corresponding to a
purchased Equipment item with the Equipment Manufacturer, but in no event
more than 7 business days of Equipment shipment to Customer. Additionally,
Vendor warrants that it shall comply with the attached Enterprise Corporate
Network Protection Policy.
NEITHER PARTY SHALL BE LIABLE FOR ANY SPECIAL OR CONSEQUENTIAL DAMAGES,
EXCEPT AS MAY BE PAYABLE PURSUANT TO SECTION 11. THE WARRANTIES STATED
ABOVE SHALL BE IN LIEU OF ANY OTHER EXPRESS OR IMPLIED WARRANTIES,
INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A
PARTICULAR PURPOSE.
8. VENDOR SUPPORT STAFF:
Vendor shall provide, at no additional cost to Customer, a full-time
project manager at Vendor's location to support the AOL implementation.
Any Vendor personnel assigned to or provided Customer by Vendor that is
deemed by Customer to be unsatisfactory for any reason will be immediately
removed by Vendor. The parties also recognize that Vendor personnel may be
unable to continue to perform services due to illness, resignation, or
other cause beyond Vendor's reasonable control. Vendor shall provide
Customer with suitable replacement personnel within 72 hours of such
removal or discontinuance. Customer, in its sole discretion, shall have
the right to accept or reject any replacement personnel offered by Vendor.
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9. TERM:
The initial term of this Agreement shall be 12 months beginning on the
Commencement Date. Following this initial term, this Agreement shall
automatically renew for additional periods of 12 months each unless written
notice of termination is provided by either party at least 45 days prior to
conclusion of the initial term or any 12-month renewal term. During the
initial term, Customer may terminate this Agreement at any time upon 90
days prior written notice.
10. TITLE AND RISK OF LOSS:
Title to the Equipment, free and clear of all liens, levies, and
encumbrances and risk of loss shall pass to Customer upon delivery of the
Equipment to Customer.
11. CONFIDENTIALITY: Each party shall take all reasonable steps to assure that
any material or information considered by either party to be confidential
which has or will come into the possession or knowledge of each in
connection with this Agreement, shall not be disclosed to others, in whole
or in part, without the prior written permission of the other party.
Vendor and Customer consider information to be confidential if it is a
trade secret or proprietary information which relates to either of the
party's past, present, and future research, development and business
activities, and which is information either identified as being such
information, or which is information that a reasonable person would
understand to be such information. Examples of such information include,
but are not limited to, customer lists, pricing policies, market analyses,
market projections, consulting and sales methods and techniques, expansion
plans, programs, program decks, routines, subroutines, operating systems,
object and source codes, updates thereto, and related items, including, but
not limited to, specifications, layout, charts, and other like materials and
documents, together with all information, data, and know-how, technical or
otherwise, included therein, manuals, printouts, notes, and annotations on
disks, diskettes, tapes or cassettes, both master and duplicates. Neither
party will have any obligations to maintain the confidentiality of any data
or information which (i) was in receiving party's lawful possession prior
to the submission thereof by the other party, (ii) is later lawfully made
available to the receiving party by a third party having no obligation of
secrecy to the other party, (iii) is independently developed by the
receiving party or (iv) is or later becomes available to the public through
no act or failure to act by the receiving party. The recipient party shall
immediately return such confidential and/or proprietary information to the
party providing the information upon the providing party's request. This
Section 11. shall survive any termination of the Agreement.
12. MISCELLANEOUS:
Titles to the sections of this Agreement are solely for the convenience of
the parties and do not explain, modify, interpret, or expand the provisions
herein.
If it becomes desirable or necessary, at any time subsequent to the date of
this Agreement, and prior to completion of performance hereunder, to make
any change in the terms of this Agreement or to any attachment made a part
hereof, any such change may be agreed upon only in writing signed by
authorized representatives of Customer and Vendor.
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This Agreement shall be governed by the laws of the State of Ohio. If any
provision in this Agreement should be held invalid or unenforceable, the
validity and enforcebility of the remaining provisions of this Agreement shall
not be affected thereby.
No term or provision hereof shall be deemed waived and no breach excused,
unless such waiver or consent shall be in writing and signed by the party
claimed to have waived or consented. Any consent by any party to, or waiver
of, a breach by the other, whether express or implied, shall not constitute
a consent to, waiver of, or excuse for any other different or subsequent
breach.
Each party agrees that it shall not assign or otherwise transfer its rights or
interest in this Agreement without the prior written consent of the other
parties, which consent shall not be unreasonably withheld, except that a party
may assign this Agreement to the surviving entity in a merger or consolidation
in which it participates or to a purchaser of all or substantially all of its
assets. Vendor may not subcontract or delegate its obligations under this
Agreement without the prior written consent of Customer, which consent will not
be unreasonably withheld.
Each party agrees that it will not, without the prior written consent of the
other in each instance, (i) use in advertising, publicity, or otherwise the name
of the other, or any affiliate or subsidiary of the other, or any partner or
employee of the other, nor any trade name, trademark, trade device, service
xxxx, symbol or any abbreviation, contraction or simulation thereof owned by the
other or its affiliates or subsidiaries, or (ii) represent, directly or
indirectly, that any product or any service provided by such party has been
approved or endorsed by the other parties.
Customer, or its authorized representative, shall have the right to examine,
during ordinary business hours, all documents, records, reports, books, files
and other materials maintained by Vendor and relative to this Agreement and
Vendor's compliance hereunder.
Upon delivery of the Equipment, Vendor shall supply Customer with any user
manuals that are shipped by the manufacturer to Vendor with the Equipment at no
additional cost to Customer.
Either party shall be excused from failures or delays in delivery or performance
hereunder if such failure or delay is attributable to causes beyond the
reasonable control of the party which makes such performance or delivery
commercially impractical. In the event of any such delay, the time of delivery
or performance and time of payment shall be extended for a period of time equal
to the time lost by reason of such delay (unless otherwise specified in writing
between the parties hereto.) In no event, however, will either party be excused
from a delay of more than 2 months in the schedules set forth herein. In the
event of a delay in delivery beyond such 2-month period, Customer may terminate
the applicable order, or portion therof, with no penalty and with full refund of
any amount previously paid for the portion terminated, and no further
obligations shall remain on the part of either party hereunder. The
non-performance of any obligation hereunder shall not be deemed a default unless
the same shall not have been cured within 30 days after the non-performing party
has received written notice of such non-performance.
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All covenants, representations, warranties, and agreements of the parties
contained herein shall be binding upon and inure to the benefit of their
respective heirs, executors, administrators, personal representatives,
successors, and permitted assignees.
Customer's Request for Proposal ("RFP") dated September 27, 1996, and the
Proposal submitted to Customer by Vendor dated October 10, 1996, are hereby
incorporated by reference into this Agreement and are considered a part of
this Agreement though not physically attached. If there are any conflicts
between the RFP or Proposal and any other term of this Agreement, such
other term of this Agreement shall prevail. In the event of conflict
between the RFP and the Proposal, the RFP shall prevail.
THE PARTIES ACKNOWLEDGE THAT THEY HAVE READ THIS AGREEMENT, UNDERSTAND IT AND
AGREE TO BE BOUND BY ITS TERMS AND FURTHER AGREE THAT THIS AGREEMENT AND
INCORPORATED ATTACHMENTS IS THE COMPLETE AND EXCLUSIVE STATEMENT OF THE
AGREEMENT BETWEEN THE PARTIES. EACH PARTY HAS FULL POWER AND AUTHORITY TO ENTER
INTO AND PERFORM THIS AGREEMENT, AND THE PERSON SIGNING THIS AGREEMENT ON BEHALF
OF EACH HAS BEEN PROPERLY AUTHORIZED AND EMPOWERED TO ENTER INTO THIS AGREEMENT.
XXXXXXX COMPUTER RESOURCES, NATIONWIDE MUTUAL INSURANCE
INC. COMPANY
By /s/ Xxxxxxx X. Xxxxx By /s/ Xxxx X. Xxxx
--------------------------- -------------------------------
Name: Xxxxxxx X. Xxxxx Name: Xxxx X. Xxxx
------------------------ ----------------------------
VP, Enterprise Information
Title: Vice President of Operations Title: Processing Services
---------------------------- ---------------------------
Date: 12/16/96 Date: 12/31/96
---------------------------- ---------------------------
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EXHIBIT I
COMPAQ CONFIGURATIONS FOR AOL
Configuration A (Option - 1)
Description Part #
Prosignia 5/150 2100 224050-002
00 XX. Xxxxxx Xxx 000000-000
0/00 - XX. TurboDat 142181-001
1024 Color Monitor 141564-601
Configuration A (Option - 2)
Proliant 1500 M5/133 219700-001
32 MB, Memory Kit 169170-001
4/16 - GB. TurboDat 142181-001
1024 Color Monitor 141584-601
2.1 GB. Pluggable Dr. 146742-004
Proliant 1500 M5/166 219720-001
Configuration B (Tower)
Proliant 1500 M5/133 219700-001
64 MB Memory Kit 169171-001
32 MB.Memory Kit 169170-001
15/30-GB.DLT Dr. 242456-001
1024 Color Monitor 141564-601
4.3 GB.Pluggable Dr. 146742-006
4.3 GB.Pluggable Dr. 146742-006
Proliant 1500 M5/166 219720-001
Cost of same configuration w/5/166
Configuration B (Rack)
Proliant 1500R M5/133 220010-001
64 MB Memory Kit 169171-001
32 MB. Memory Kit 169170-001
15/30-GB.DLT Dr. 242456-001
1024 Color Monitor 141564-601
4.3 GB.Pluggable Dr. 146742-006
4.3 GB.Pluggable Dr. 146742-006
Proliant 1500R M5/166 220010-001
Database Options for Configurations B
Smart-2/P Array Ctlr. 194753-001
4.3 GB.Pluggable Dr. 146742-006
EXHIBIT I
COMPAQ CONFIGURATION FOR AOL
Configuration C (Rack)
Description Part #
Proliant 4500R M2/133 213430-002
64 MB Memory Kit 149913-001
12B MB. Memory Kit 149914-001
15/30-GB. DLT Dr. 242456-001
1024 Color Monitor 141564-601
4.3 GB. Pluggable Dr. 146742-006
4.3 GB. Pluggable Dr. 146742-006
4.3 GB. Pluggable Dr. 146742-006
4.3 GB. Pluggable Dr. 146742-006
Smart-2/E Array Cltr. 194751-001
Configuration C (Rack)
Proliant 5000R M2-6/166 218450-002
64 MB Memory Kit 218282-001
12B MB. Memory Kit 219283-001
15/30-GB. DLT Dr. 242456-001
1024 Color Monitor 141564-601
4.3 GB. Pluggable Dr. 146742-006
4.3 GB. Pluggable Dr. 146742-006
4.3 GB. Pluggable Dr. 146742-006
4.3 GB. Pluggable Dr. 146742-006
Smart-2/P Array Cltr. 194753-001
Options
Compaq 42U Rack 165753-001
Rack Blanking Panel 169940-001
Keyb/Monitor Shelf 165644-001
Compaq 22U Rack 163747-001
Rack Side Wall Kit 165652-001
SCSI Storage Expander 142185-001
SCSI Storage Expander 165620-001
EXHIBIT I
IBM CONFIGURATIONS
Description Model #
Configuration A
Model 310 Server 86380D0
2.16 XX Xxxxx 00X0000
00 XX XXX Kit 11H0657
DAT Tape Drive 74G8631
Ethernet 04H6550
Display 6542103
Configuration B
Model 320 Server 86402D0
256K L2 Cache Upg 94G3141
2.16 XX Xxxxx 00X0000
Display 8642103
PCI 100/10 Ethernet 25H4374
32MB ECC Kit 11H0624
Tape Converter 70G9859
16MB ECC Kit 11H0621
DLT Tape DLT2000XT
Configuration BDB
Server 320 86402D0
256K L2 Cache 94G3141
16MB ECC Kit 11H0621
2.16 XX Xxxxx 00X0000
Tape Converter 70G9859
Display 6542103
PCI RAID Adapter 94G2764
PCI 100/10 Ethernet 25H4374
32MB ECC Kit 11H0624
DLT Tape DLT2000XT
Configuration C
PC Server 720 w/ (2) 2.25 GB 86422ZS
32 MB ECC Kit 94G2941
2.25 GB Xxxx Xxxxx 00X0000
PCI 100/10 Ethernet 25H4374
Display 6542103
DLT Tape DLT4000
EXHIBIT I
PRINTER CONFIGURATIONS
Product
-------
Hewlett-Packard LaserJet 5 Printer
Hewlett-Packard LaserJet 5M Printer
Hewlett-Packard LaserJet 5L-FS Printer
Hewlett-Packard LaserJet 5P Printer
Hewlett-Packard Desktop 340 Printer
Hewlett-Packard DeskJet 1600C Printer
Hewlett-Packard Color LaserJet 5M Printer
Hewlett-Packard CopyJet Printer/Copier
