Exhibit 10.4
SERVICES AGREEMENT
Agreement #4620899S-RLS
Agreement between Work Management Solutions, Inc., a company whose address
is 000 Xxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000-0000 ("WMS"), and State Farm
Mutual Automobile Insurance Company, a mutual insurance company having its
corporate headquarters at Xxx Xxxxx Xxxx Xxxxx, Xxxxxxxxxxx, Xxxxxxxx, its
subsidiaries and affiliates ("STATE FARM").
W I T N E S S E T H
WHEREAS, certain services are required by STATE FARM related to consulting
and the training of STATE FARM personnel; and
WHEREAS, WMS has agreed to provide such services.
NOW THEREFORE, the parties agree as follows:
1. WMS expressly agrees that it shall perform the services (the "Services")
set out in each individual mutually agreed work order (the "Work Order"),
the form of which is attached hereto and incorporated herein on Exhibit A.
In consideration of WMS performing and completing its responsibilities
hereunder, STATE FARM shall compensate WMS as stated in each applicable
Work Order. Such compensation shall be due and payable at the later of (i)
thirty (30) days following completion of the Service or (ii) thirty (30)
days following STATE FARM's receipt of an accurate invoice. Such
compensation shall include any and all travel expenses incurred by WMS. In
no event shall any such travel and out-of-pocket expenses be reimbursed by
STATE FARM to WMS in excess of the compensation stated in each applicable
Work Order.
2. In order to provide the Services, WMS agrees that at STATE FARM's request
it shall meet with STATE FARM personnel at STATE FARM's offices in
Bloomington, Illinois. The meeting times shall be mutually agreeable. Both
parties acknowledge that it shall be necessary to cooperate in order to
carry out this Agreement, and each agrees to reasonably cooperate with the
other.
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3. WMS shall, and shall ensure that all of its employees and agents involved
with the performance of the Services, keep confidential any proprietary,
trade secret, business secret, copyright, patent or other such information
of STATE FARM, or of any of its vendors, suppliers, or customers, which it
learns as the result of carrying out its obligations hereunder. WMS
expressly further agrees that it shall return any such information and
copies thereof to STATE FARM upon completion of WMS's duties under this
Agreement, or upon STATE FARM's request. The terms of this Section 3 shall
survive the termination of this Agreement.
STATE FARM shall keep confidential any proprietary, trade secret, business
secret, copyright, patent or other such information of WMS, or any of its
subsidiaries or affiliates, which it learns as a result of the Services
provided hereunder. STATE FARM further agrees that it shall return any
such information and copies thereof to WMS upon the completion of the
Services or at WMS's request. The terms of the paragraph shall survive the
termination of this Agreement. Notwithstanding the foregoing, STATE FARM
shall not have any obligation with respect to any such information
contained in or made a part of the Reports (as such term is defined in
Exhibit A attached hereto). The parties hereto specifically agree that
STATE FARM will be the sole and absolute owner of the ideas and techniques
contained in the Reports with respect to STATE FARM's business and that
STATE FARM may disclose such to any party without violation of this
paragraph.
4. WMS expressly warrants to STATE FARM that:
(i) It has the ability and expertise to perform its responsibilities
hereunder and in doing so shall use the highest standards of
professional workmanship. STATE FARM shall have the right to reject
at any time any employees of WMS or its subsidiaries, affiliates or
assignees whose qualifications, in STATE FARM's sole judgment, do
not meet the standards hereunder.
(ii) All Reports provided to STATE FARM by WMS as a product of the
Services, and the ideas and techniques contained therein with
respect to STATE FARM's business, shall be the sole and absolute
property of STATE FARM, subject to a nonexclusive license to use and
disclose any preexisting proprietary materials of WMS contained
therein.
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(iii) Any Reports, or Services furnished or used under this
Agreement do not or will not infringe upon or violate a patent,
copyright, license or other property or proprietary right held, or
misappropriate a trade secret or other property right claimed by a
third party. WMS at its own expense shall defend and hold STATE FARM
fully harmless against any action asserted against STATE FARM (and
specifically including costs and reasonable attorneys' fees
associated with any such action) to the extent that it is based on a
claim that use of the Reports within the scope of this Agreement
infringes any patent, copyright, license or other property right or
proprietary right of any third party except to the extent such
Reports have been altered or modified by anyone other than WMS, or
its affiliates or assignees. STATE FARM shall promptly notify WMS in
writing of any such claim. In the event of an action for
infringement WMS may, in its sole discretion, at its expense, (i)
obtain for STATE FARM the right to use the Reports; (ii) modify the
Reports so as to render them non-infringing; (iii) provide STATE
FARM with functionally equivalent substitute Reports; or (iv) if
none of the other options set forth in this paragraph can be
reasonably achieved, refund to STATE FARM all fees paid to WMS under
this Agreement in full satisfaction of WMS's obligations, except for
those obligations set forth in Sections 4(iii) and 8 hereunder.
(iv) STATE FARM shall not have an obligation to effect any or all of
the recommendations or proposals of WMS as set forth in the Reports.
5. Subject to the provision of Section 4(ii) of this Agreement, the parties
agree that the Reports produced hereunder shall be considered a work made
for hire. WMS transfer, assigns, sells and conveys all rights to the
Reports produced hereunder to STATE FARM, including but not limited to
copyright, trade secret, trademark and patent.
6. WMS shall not disclose or otherwise identify STATE FARM orally or in any
of WMS's advertising, publications, or other media to be displayed or
disseminated to WMS's customers or other parties.
7. The parties expressly agree that the WMS shall be an independent
contractor for all purposes in the performance of this Agreement and shall
not be an employee of STATE FARM.
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8. WMS expressly agrees anything herein to the contrary notwithstanding, that
it shall indemnify and hold STATE FARM fully harmless against any damages
of any kind whatsoever, including costs and reasonable attorneys' fees,
STATE FARM shall incur as a result of injuries to persons or damage to
tangible property caused by the negligent acts of, or negligent failure to
act by WMS, its employees or agents while on STATE FARM's premises.
STATE FARM expressly agrees anything to the contrary notwithstanding, that
it shall indemnify and hold WMS fully harmless against any damages of any
kind whatsoever, including costs and reasonable attorneys' fees, WMS shall
incur as a result of the negligent acts of, or negligent failure to act by
STATE FARM, its employees or agents while on WMS's premises.
9. EXCEPT AS SET FORTH IN SECTIONS 4(iii) AND 8 OF THIS AGREEMENT, NEITHER
PARTY WILL BE LIABLE TO THE OTHER FOR SPECIAL, INDIRECT, CONSEQUENTIAL OR
INCIDENTAL LOSSES OR DAMAGES OF ANY KIND OR NATURE WHATSOEVER, INCLUDING
BUT NOT LIMITED TO LOST PROFITS, LOST RECORDS OR DATA, LOST SAVINGS, LOSS
OF USE OF FACILITY OR EQUIPMENT, LOSS BY REASON OF FACILITY SHUT-DOWN OR
NON-OPERATION OR INCREASED EXPENSE OF OPERATIONS, OR OTHER COSTS, CHARGES,
PENALTIES, OR LIQUIDATED DAMAGES, REGARDLESS OF WHETHER ARISING FROM
BREACH OF CONTRACT, WARRANTY, TORT, STRICT LIABILITY OR OTHERWISE, EVEN IF
ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE OR IF SUCH LOSS OR
DAMAGE COULD HAVE BEEN REASONABLY FORESEEN.
EXCEPT FOR SECTIONS 4(iii) AND 8 OF THIS AGREEMENT, STATE FARM AGREES THAT
WMS'S LIABILITY HEREUNDER REGARDLESS OF FORM OF ACTION, SHALL NOT EXCEED
THE TOTAL AMOUNT PAID FOR SERVICES UNDER THIS AGREEMENT. EXCEPT FOR
SECTIONS 4(iii) AND 8 OF THIS AGREEMENT, IN NO EVENT WHATSOEVER SHALL
STATE FARM'S LIABILITY TO WMS FOR ANY OTHER REASON WHATSOEVER EXCEED IN
THE AGGREGATE THE MUTUALLY AGREED TO COMPENSATION FOR SERVICES PROVIDED
UNDER THE AGREEMENT.
10. No action, whether in contract or tort, including negligence, arising out
of the performance of services under this Agreement may be brought by
either party more than eighteen (18) months after the cause of action
accrues.
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11. It is expressly understood that if either party, on any occasion fails to
perform any term of this Agreement, and the other party does not enforce
that term, the failure to enforce on that occasion shall not constitute a
waiver of that term by the other party.
12. If either party neglects or fails to perform any of its obligations under
this Agreement and such failure continues for a period of ten (10) days
after notice thereof, the other party shall have the right to terminate
this Agreement. Both parties acknowledge that the determination of actual
damages in the case of nonperformance by either party will be difficult or
impossible. Both parties therefore agree that damages under this Agreement
will be as follows: In the event of WMS's default, WMS shall forfeit its
fees hereunder and no fee shall be payable to it; and in the event of
STATE FARM's default, WMS shall receive only the portion of the total fee
representing work previously completed, but in no event shall this amount
exceed the total fee. This measure of damages shall be interpreted as
liquidated damages, and not as a penalty.
13. Anything in the Agreement to the contrary notwithstanding, WMS may not
delegate or assign any or all of its duties under the Agreement to any
other entity, including an entity which affiliates or merges with or
acquires WMS, except when such delegation or assignment is approved in
advance by STATE FARM in writing, which approval STATE FARM may in its
sole discretion grant or deny. WMS is authorized by STATE FARM to
subcontract its obligations hereunder with Plan View, Inc., an affiliated
company, provided Plain View, Inc., its employees and agents will meet all
of the requirements under this Agreement and WMS will remain primarily
liable under this Agreement.
14. This Agreement together with the Exhibits attached hereto shall be an
agreement binding upon each of the parties hereto, their successors, and
to the extent permitted their assigns. This Agreement shall be governed by
the laws of the State of Illinois without regard to conflict of laws
provisions. This Agreement cannot be amended or otherwise modified except
as agreed to in writing by each of the parties hereto. This Agreement and
the Exhibits attached hereto represent the sole agreement between the
parties and supersedes and merges any prior agreement oral or written
between the parties with respect to the subject matter hereof.
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IN WITNESS WHEREOF, WMS and STATE FARM have caused this Agreement to be executed
by their respective, duly authorized officers. This Agreement shall become
effective on the date the second of the two parties to sign executes this
Agreement below.
WORK MANAGEMENT STATE FARM MUTUAL AUTOMOBILE
SOLUTIONS, INC. INSURANCE COMPANY
000 Xxxxx Xxxxxx Xxx Xxxxx Xxxx Xxxxx
Xxxxxx, XX 00000 Xxxxxxxxxxx, XX 00000
/s/ X.X. Xxxxxx /s/ Xxxxxx XxXxxxxxx
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Signature Signature
X.X. XXXXXX Xxxxxx XxXxxxxxx
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Printed or Typed Name Printed or Typed Name
V.P. Consulting Services Assistant VP, Administrative Services
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Title Title
Sep. 25, 1996 9-26-96
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Date Date
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