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EXHIBIT 10.4
CMSI PROFESSIONAL SERVICES AGREEMENT
1. This Agreement is made as of the _____ day of ________________, 1996
by and between Credit Management Solutions, Inc. ("CMSI") and
______________________. ("Licensee"). During the term of this Agreement CMSI
will perform for Licensee:
(i) Customization and enhancement services related to Licensee's
license and use of CreditRevue(R) Software under the Software
License Agreement (the "License Agreement") between CMSI and
Licensee dated _________________, ____, as amended from time
to time.
(ii) System integration services related to the configuration of
Licensee's CreditRevue computing environment.
(iii) Such other services, including without limitation consulting
or training services, upon which the parties may mutually
agree.
Such customization and enhancement services, systems integration services,
and/or other services are hereinafter referred to as "Services." The Services
to be provided under this Agreement shall be set forth on each Task Order
hereunder, executed by an authorized representative of each party, and shall be
subject to the terms and conditions of this Agreement. All Services provided
under any Task Order shall be in addition to software support services provided
by CMSI to Licensee under the parties' Software Maintenance Agreement (the
"Maintenance Agreement") dated ________________, ____. Any computer code and
related documentation provided to Licensee by CMSI under any Task Order
hereunder shall be deemed Software and Documentation respectively (collectively
referred to hereinafter as "Licensed Products"), and Licensee's rights in and
to such Licensed Products shall be subject to the terms of the License
Agreement and the Maintenance Agreement unless expressly stated in writing in
this Agreement or the applicable Task Order. All copyrights, trade secrets,
patents, and other proprietary rights resulting from any Services provided
hereunder will be owned by CMSI, and, at CMSI's request and expense, Licensee
agrees to assign to CMSI in writing any proprietary interest in deliverables
provided hereunder which may be conferred upon Licensee by operation of law.
Capitalized terms used in this Agreement and any Task Order shall have the same
meaning as capitalized terms used in the License Agreement and Maintenance
Agreement unless specifically stated otherwise.
2. In consideration for performance of Services, Licensee shall make
payment to CMSI at the rates and in the amounts shown on the applicable Task
Order. Amounts payable by Licensee to CMSI under each Task Order shall be due
and payable on the date specified in such Task Order or, if not specified,
shall be invoiced monthly in arrears and shall be due and payable thirty (30)
days after the date of the invoice. Late payments will bear interest at the
lesser rate of one and one half percent (1 1/2%) per month on the unpaid amount
for each month (or fraction thereof) that such amount remains unpaid or the
maximum rate permitted by law. Licensee is responsible for all taxes and duties
based upon amounts payable hereunder (exclusive of taxes based upon the net
income of CMSI).
3. Either party may terminate this Agreement, with or without cause, upon
thirty (30) days written notice to the other party. The termination of this
Agreement shall not act as the termination of any Task Order whose term
(including renewal terms) extends beyond the Agreement termination date. Each
such Task Order which requires performance beyond the termination of this
Agreement shall be so performed, and shall continue to be subject to the terms
of this Agreement as if this Agreement had not been terminated. CMSI may
terminate any and all Task Orders (and this Agreement) immediately by giving
Licensee written notice of termination if Licensee breaches any of its
obligations under the License Agreement, the Maintenance Agreement or otherwise
regarding the confidentiality of, and non-disclosure to or use by unauthorized
parties of, the Software and/or other CMSI proprietary information. In the
event Licensee fails to make any payment under a Task Order when due, CMSI may
terminate such Task Order fifteen (15) days after providing Licensee with
written notice of such delinquency if the delinquency remains uncorrected after
such fifteen (15) day period. In the event of a material breach by one party
(the "Breaching Party") of a Task Order, the other party (the "Non-Breaching
Party") may terminate such Task Order thirty (30) days after written notice of
such breach to the Breaching Party if (i) the breach remains uncured after such
thirty (30) day period or, (ii) with respect to those breaches which cannot
reasonably be cured within thirty (30) days, if the Breaching Party fails to
commence curing the breach within thirty (30) days after the Non-Breaching
Party's notice and to proceed with all due diligence substantially to cure the
same. Further, either party
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may terminate this Agreement and any or all Task Orders in the event of the
termination of the License Agreement. A party terminating this Agreement or
any Task Order as provided under this Section 3 shall do so by providing the
other party with a written termination notice. The right of either party under
this Section 3 to terminate this Agreement or any Task Order will not be deemed
to be an exclusive remedy, and each party will be entitled to such other rights
and remedies as are available to it at law or in equity, subject to the
limitation of liability provisions contained herein.
4. Within ten (10) days after the Effective Date of each Task Order
Licensee will designate a "Licensee Representative" who will be authorized to
make decisions, approve plans and grant requests on behalf of Licensee in
connection with CMSI's performance thereunder (in the absence of such a
designation by Licensee, the individual then serving as the Licensee
Representative under the License Agreement shall be deemed the Licensee
Representative under the Task Order). With respect to each Task Order,
Licensee agrees to provide CMSI with reasonable access to Licensee's computer
system and Licensee's facility together with adequate working space at all
reasonable times to enable CMSI to perform its obligations. Further, Licensee
agrees to cooperate with CMSI by making available to CMSI on a timely basis
Licensee information, resources and personnel reasonably required by CMSI to
perform its obligations. Licensee understands that the successful performance
of the Services depends on Licensee fulfilling its responsibilities and making
all reasonable and timely efforts to cooperate with CMSI. Any failure by
Licensee to fulfill its responsibilities may cause an extension of the dates
for performance and/or an increase in the Service charges, and if material, may
result in CMSI's termination of the Task Order for breach. Further, if any
Task Order requires CMSI to dedicate personnel and/or resources (collectively
"Resources") exclusively to a Licensee project and such Resources cannot
perform their functions due to Licensee's failure to meet its obligations under
this Section 4, CMSI shall be entitled to xxxx Licensee and Licensee shall pay
CMSI for such Resources at CMSI's standard hourly rates (unless other rates are
specified under the applicable Task Order) during the period that such
Resources remain dedicated to Licensee's project. Unless otherwise requested
in writing by Licensee, CMSI shall use reasonable efforts to reassign such
Resources to other projects during the period of delay, and in the event of any
such reassignment CMSI shall not be required to return such Resources to
Licensee's project if and when the project resumes. Further, CMSI shall be
entitled to revise the implementation schedule(s), if any, relating to the Task
Order as reasonably appropriate to account for any delay in performance caused
by Licensee and any further delays resulting from CMSI's reassignment of its
Resources.
5. Licensee acknowledges that any changes it may request to Services
agreed to in writing under a Task Order may result in additional charges to
Licensee. CMSI shall not be required to undertake any such changes until
Licensee approves in writing a Change Order, prepared by CMSI, establishing the
price for the changes and the additional or modified Services required under
the Task Order, and any additional charges which may be applicable due to such
changes. If Licensee fails to execute the Change Order, then CMSI shall be
under no obligation to perform such changes, and Services shall proceed as
originally planned under the unmodified Task Order.
6. CMSI warrants that it will perform all Services provided under each
Task Order in a technically proficient and workmanlike manner consistent with
good practice in the computer services industry. THE WARRANTIES SET FORTH IN
THIS SECTION 6 ARE IN LIEU OF, AND CMSI HEREBY DISCLAIMS, ALL OTHER WARRANTIES,
EXPRESSED OR IMPLIED, REGARDING THE SERVICES AND ANY OTHER DELIVERABLES
PROVIDED UNDER A TASK ORDER INCLUDING, BUT NOT LIMITED TO, ALL IMPLIED
WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
7. Unless otherwise specified in the applicable Task Order, Licensee
shall reimburse CMSI on a monthly basis for all reasonable out-of-pocket
expenses including, but not limited to, travel and travel-related expenses,
incurred and reasonably documented by CMSI in connection with its performance
of Services.
8. Licensee acknowledges that CMSI does not accept any liability or
responsibility relating to Licensee's ability to permit CMSI the right to use
any third party software or system installed at any Licensee facility.
Licensee agrees to indemnify CMSI and its agents for all losses, damages and
costs incurred as a result of any claims brought against CMSI or its agents
based upon CMSI's use of any such system or software. In addition, if any such
action is brought against CMSI and/or Licensee, CMSI may, at its option,
terminate the applicable Task Order.
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9. Licensee agrees that, during the term of any Task Order and for
twenty-four (24) months thereafter, neither it nor any of its subsidiaries or
affiliates shall, except with the prior written consent of CMSI, offer
employment to or employ any person employed then or within the preceding
twenty-four (24) months by CMSI or any subsidiary or affiliate of CMSI.
10. CMSI'S LIABILITY TO LICENSEE WITH RESPECT TO THE TRANSACTIONS
CONTEMPLATED BY THIS AGREEMENT, REGARDLESS OF THE FORM OF ACTION, WILL BE
LIMITED TO THE FEES PAID BY LICENSEE TO CMSI UNDER THE APPLICABLE TASK ORDER
FOR THE MONTH IMMEDIATELY PREVIOUS TO THE EVENT GIVING RISE TO THE CLAIM. IN
NO EVENT WILL CMSI BE LIABLE TO LICENSEE FOR LOST PROFITS, LOST SAVINGS, LOSS
OF USE, LOSS OF DATA, OR FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES OR FOR SIMILAR
DAMAGES, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, OR FOR ANY THIRD
PARTY CLAIM AGAINST LICENSEE IN CONNECTION WITH OR CONCERNING THE LICENSED
PRODUCTS OR ARISING OUT OF OR IN CONNECTION WITH THE SUBJECT MATTER OF THIS
AGREEMENT. WITH RESPECT TO SERVICES AND DELIVERABLES PROVIDED HEREUNDER, THIS
SECTION 10 SUPERSEDES ANY CONFLICTING TERMS IN THE LIMITATIONS OF LIABILITY
ESTABLISHED UNDER THE LICENSE AGREEMENT AND/OR THE MAINTENANCE AGREEMENT.
11. This Agreement is subject to all terms and conditions of the License
Agreement and the Maintenance Agreement except as such terms and conditions may
be expressly modified by this Agreement. Licensee shall be entitled to order
Services hereunder for the benefit of its affiliates and/or subsidiaries which
are entitled to access the Licensed Products under the License Agreement, and
in such event Licensee shall ensure such affiliates' and subsidiaries'
compliance with the terms and conditions of this Agreement.
12. This Agreement, each executed Task Order hereunder, and the License
Agreement and Maintenance Agreement as incorporated herein by reference,
constitute the entire agreement between CMSI and Licensee with respect to the
subject matter of this Agreement and the applicable Task Order. No
representation or statement not contained in this Agreement or an applicable
Task Order shall be binding upon either party. This Agreement may not be
assigned by Licensee without the prior written consent of CMSI, which consent
shall not be unreasonably withheld or delayed. This Agreement may be amended
only by a written instrument executed by both parties.
Accepted and Agreed by: Accepted and Agreed by:
CREDIT MANAGEMENT SOLUTIONS, INC. ---------------------------
("CMSI") ("Licensee")
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Signature Signature
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Print Name/Title Print Name/Title
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Date Date
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