First Independent Computers Inc.
Data Processing Service Agreement
THIS AGREEMENT is made and entered into between FIRST INDEPENDENT
COMPUTERS, INC., a Texas corporation ("FICI"), 0000 X 0xx, Xxxxxxx, Xxxxx 00000,
and FiScrip, Inc. (Customer) 0000 Xxxxxxx Xxxx., Xxxxx 000, Xxxxxxx, XX.
Customer desires to engage FICI to perform data processing and other
services to Customer consisting of the applications set forth in Schedule "A"
(attached hereto and made a part hereof for all purposes).
FICI and Customer therefore agree as follows:
I. Services.
1. 1. PROCESSING SYSTEM. FICI agrees to perform for Customer, and
Customer engages FICI to perform, data processing and other services in order to
provide to Customer the applications and services specified in Schedule "A". By
an amendment to Schedule "A", Customer and FICI may agree that FICI will perform
additional services. Customer will process with FICI (throughout the original
and any renewal term of this Agreement) all accounts associated with the
services provided to Customer under this Agreement.
1.2. Forms. Customer will provide special forms used for services under
this agreement.
1.3. REPORTS. FICI will provide Customer with daily reports (or other
periodic reports) reflecting services provided to Customer.
1.4. DELIVERY AND PROCESSING. Customer will, at its own risk and
expense, be responsible for transmitting to and from Customer, and the data
center designated by FICI (the "Data Center") all data and information necessary
for FICI to perform the services required by this Agreement and all reports
provided by FICI. FICI shall have daily reports available for pickup by Customer
at (or available for transmission to Customer from) the Data Center by 8:00 a.m.
of that business day. If items to be processed by FICI are not furnished in a
timely manner, FICI may reasonably reschedule services relying thereon.
1.5. EQUIPMENT . Customer will provide, install and maintain in good
operating condition all necessary communication terminals, control units,
communication lines to the Data Center, telephones, and any other equipment and
features required to implement the terms of this Agreement. All equipment and
features shall be acceptable to FICI in its sole discretion. Customer will
furnish and install any and all spare parts required for such equipment and
features.
1.6 FINANCIAL STATEMENTS: AUDITS. Upon Customer's request, FICI will
provide to Customer copies of the most recent audited financial statements of
First Independent Computers, Inc., the most recent unaudited financial
statements of FICI and the most recent independent audit of FICI's data
processing functions.
1.7. NOTIFICATION OF SYSTEM CHANGES. All changes to the Support System
materially affecting Customer's procedures or reporting will be preceded by
release bulletins to Customer within a reasonable time prior to installation.
1.8. OPERATING INSTRUCTIONS. FICI may from time-to-time provide
Customer with instructions governing the operation of the Processing System (the
"Operating Instructions"). Customer will comply with all such Operating
Instructions as may be in effect from time to time.
1.9. BACKUP FACILITIES. FICI will provide backup facilities and
procedures for provision of the Support System in the event primary facilities
are not functional.
2. Charges for Services.
2.1. PRICING. Customer will pay FICI for the data processing and other
services set forth in Schedule "A" in accordance with the pricing schedule
attached hereto as Schedule "B". In the event Customer engages FICI to provide
additional applications by an amendment to Schedule "A", Customer will pay FICI
for the additional services in accordance with an amendment to Schedule "B" to
be attached thereto.
2.2. PAYMENT . FICI will xxxx Customer on a monthly basis for previous
month services by the tenth (10th) calendar day of each month in which services
are being rendered. Customer shall pay FICI the stated charges, fees, and any
applicable taxes by the 20th of each month. Any amounts that remain unpaid and
undrafted for thirty (30) days after the date of invoice because of inability to
draft shall bear interest at the rate of one and one-half (1 1/2) percent per
month from the date of the invoice but not to exceed the highest applicable
lawful rate.
3. Conversion. N/A
4. Term.
4.1. ORIGINAL TERM AND RENEWAL. The original term of this Agreement
shall begin with the effective date hereof and shall continue for a period of
five (5) years after the Effective Date and it shall automatically renew for a
three (3) year period at the end of the original term of this Agreement and at
the end of each renewal term until terminated by either party giving written
notice of termination to the other party at least one-hundred eighty (180) days
before the end of the original or any renewal
5. Proprietary Rights and Confidentiality.
5.1. PROPRIETARY RIGHTS. Customer acknowledges that the Processing
System consists of computer programs, procedures, forms, information and other
materials which constitute trade secrets and property of great value owned by
FICI or its affiliates, having been acquired through the expenditure of a great
amount of time, effort and money. Customer further acknowledges that any
disclosure to others of any of such trade secrets will result in substantial
monetary loss and irreparable damage to FICI. Customer will treat all such
programs, procedures, forms, information and materials confidentially and
safeguard them by using the same procedures used by Customer for data Customer
regards as confidential. Customer will not disclose to any person, directly or
indirectly, except as required in the proper performance of this Agreement, any
information regarding the Processing System or the terms of this Agreement. All
specifications, tapes, programs, enhancements and other materials developed in
connection with this Agreement shall be and remain at all times during and after
the term of this Agreement the exclusive property of FICI. The provisions of
this Section 5 shall survive any termination of this Agreement.
5.2. CONFIDENTIALITY OF DATA. All data relating to Customer's business
provided to FICI by Customer pursuant to this Agreement will be treated
confidentially and safeguarded by FICI using the same care and discretion that
it uses with data which FICI regards as confidential, except where and to the
extent that disclosure is authorized by Customer, compelled by governmental
regulation or legal process, or is in the form of statistical data not specific
to particular customers of Customer.
6. Correction of Data; Limitation of Liability.
6.1. CORRECTION OF DATA. In the event FICI employees cause errors in
Customer's data to occur and Customer requests correction of such data within
ninety-five (95) days from the date of the error, FICI will correct such data as
necessary at FICI's expense. The expense to FICI of correcting such data shall
be the only responsibility of FICI and shall constitute Customer's sole and
exclusive remedy with respect to such errors.
6.2 LIMITATION OF LIABILITY. In no event will FICI be liable for
special, indirect, incidental or consequential damages of Customer or any third
party. Except for losses covered by FICI's errors and omissions coverage
described in Section 6.3., FICI's total liability for direct damages alleged by
Customer or any other party in any action, regardless of its nature, arising out
of or in connection with this Agreement shall not exceed the amount of the first
month's charges paid by Customer to FICI under this Agreement. Customer will
release, indemnify and hold FICI harmless from and against any claim for damages
in excess of such amount.
6.3. ERRORS AND OMISSIONS COVERAGE. During the term of this Agreement,
FICI will maintain errors and omissions coverage with respect to its employees
of up to one million dollars ($1,000,000) per occurrence.
6.4. FORCE MAJEURE. FICI shall not be liable for damages arising from
or delays in processing or other non-performance caused by such events as
accidents, fires, telecommunications failures, equipment failures, failures or
fluctuations in electrical power, heat, light or air conditioning, labor
disputes, strikes, riots, war, governmental regulations, third party
non-performance, acts of God or other causes over which FICI has no control.
7. Termination.
7.1. TERMINATION FOR CAUSE. Customer or FICI may terminate this
Agreement upon the material breach of this Agreement by the other party under
this Agreement and failure of such party to cure such breach within ninety (90)
days after receipt of written notice specifying in detail the breach claimed. If
such breach is not cured within such ninety (90) day period, and the terminating
party intends to terminate, the terminating party must immediately give thirty
(30) days written notice of termination.
7.2. TERMINATION FOR NON-PAYMENT. If Customer fails to pay in full any
invoice within thirty (30) days from the date of invoice, FICI may notify
Customer that such invoice is past due and provide a 30-day period for payment
of the past due amount plus any interest accrued thereon. If Customer fails to
pay the full amount of such invoice plus interest within such 30-day period,
FICI may terminate this Agreement and all services hereunder at any time upon
written notice to Customer.
7.3. TERMINATION UPON INSOLVENCY. In the event Customer is declared
insolvent and is liquidated by any state or federal regulatory agency, FICI
shall be entitled to liquidated damages pursuant to Section 7.6. Notwithstanding
the foregoing, in the event Customer is declared insolvent but is not
liquidated, or is placed in receivership or conservatorship, or other similar
actions are taken, the use of the Processing System thereafter by any new owner,
receiver, conservator, manager or other agent or representative shall be deemed
acceptance and assumption of this Agreement on the full terms and conditions
contained herein, including but not limited to Section 7.6.
7.4. FILES AND OTHER MATERIALS. Upon proper termination of this
Agreement in accordance with all applicable provisions (at the conclusion of the
required written notice period), all data files created by FICI and related to
Customer will be furnished to Customer by FICI in FICI's standard form at the
cost set forth in Schedule "B". Should Customer terminate this Agreement prior
to the end of the original term or any renewal term, Customer will pay for all
costs of communications equipment that has been installed in Customer as of the
time of such termination, such payment to include all of FICI's costs in
accordance with the applicable equipment service agreement. FICI agrees to use
reasonable efforts to relocate the communications equipment. Upon any
termination of this Agreement, Customer will return to FICI all operations
materials and materials relating to or consulting part of the Support System,
and Customer will purchase from FICI all Customer custom forms held or on order
by FICI.
7.5. PAYMENT DUE UPON TERMINATION. Upon any termination of this
Agreement, all amounts owing from Customer to FICI, together with any and all
interest accrued and unpaid thereon, shall be due and payable at the time of
termination.
7.6. LIQUIDATED DAMAGES. Upon any termination of this Agreement after
the Effective Date but prior to the end of the original term or any renewal
term, other than upon termination due to material breach by FICI hereunder,
Customer shall pay to FICI as liquidated damages an amount equal to the product
of eighty percent (80%) of Customer's average total monthly xxxxxxxx under this
Agreement for the most recent six (6) months (or lesser number of months if less
than six (6) months have lapsed since the effective date) multiplied by the
number of months remaining in the term of the Agreement. The parties hereto
acknowledge and agree that (a) FICI has incurred and will incur substantial
expenses in connection with the commencement and continuation of providing
services hereunder, (b) FICI has substantial fixed expenses in providing these
services which cannot be reduced by termination of such services, (c) in the
event of any such termination, the damages that would be incurred by FICI
because of such termination would be uncertain and difficult and impracticable
to calculate and (d) the amount determined pursuant to this Section 7.6.
represents a reasonable method of estimating the actual damages that would be
incurred by FICI in the event of such a termination.
8. General.
8.1. GOVERNING LAW. This Agreement shall be construed in accordance
with the laws of the State of Texas. This Agreement has been accepted in and
shall be performable in Abilene, Xxxxxx County, Texas. All times referred to
herein shall be Abilene, Texas time.
8.2. ENTIRE AGREEMENT; RIGHT TO PERFORM. This Agreement represents the
entire understanding between Customer and FICI with respect to the matters
contained herein and, except as otherwise provided herein, may be amended only
by an instrument in writing signed by the parties hereto. Customer warrants that
it will be free, as of the date of commencement of the services to be provided
hereunder, of any contractual obligation or legal impediment that would prevent
Customer from performing its obligations under this Agreement, and that FICI's
offer to provide such services in no way caused or induced Customer to breach
any contractual obligations.
8.3. SEVERABILITY. In the event that any of the provisions of this
Agreement are held to be unenforceable or invalid by any court of competent
jurisdiction, the validity and enforceability of the remaining provisions will
not be affected, and in lieu of such invalid or unenforceable provision there
shall be added automatically, as part of this Agreement, a provision as similar
in terms as may be valid and enforceable.
8.4. RELATIONSHIP OF PARTIES. FICI, in providing services to Customer
hereunder, is acting only as an independent contractor. Except as otherwise
provided herein: (a) FICI does not undertake by this Agreement or otherwise to
perform any obligation of Customer, whether regulatory or contractual, or to
assume any responsibility for Customer's business or operations, and (b) FICI
has the sole right and obligation to supervise, manage, contract, direct,
procure, perform or cause to be performed, all work to be performed by FICI
under this Agreement.
8.5. NO-HIRE PROVISION. During the term of this Agreement and for a
period of twelve (12) months thereafter, neither party will, without the prior
written consent of the other, which consent will not be unreasonably withheld,
offer employment to or employ any person employed there or within the preceding
twelve (12) months by the other party, if the person was involved in providing
or receiving services.
8.6. NOTICES. Any notice required or permitted hereunder shall be in
writing and shall be given by personal service or certified mail, return receipt
requested, postage prepaid, to the addresses of the parties as they appear
above, or as changed through written notice to the other party.
8.7. BINDING EFFECT AND ASSIGNMENT . This Agreement is binding on the
parties hereto and their respective successors and assigns. Customer may not
assign this Agreement (whether such assignment is effected in connection with a
sale of Customer's assets, stock or through merger or otherwise) without the
prior written consent of FICI.
FISCRIP, INC. FIRST INDEPENDENT COMPUTERS, INC.
BY: /S/ XXXXXX X. XXXX BY: /S/ XXXXXXX X. XXXXX
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NAME: Xxxxxx X. Xxxx NAME: Xxxxxxx X. Xxxxx
TITLE: President & CEO TITLE: President
DATE: March 1, 1998 DATE: March 1, 1998
