***Text Omitted and Filed Separately
Confidential Treatment Requested
Under 17 C.F.R. Sections 200.80(b)(4),
200.83 and 230.406
This Contract No. WM001 is entered into as of September 8, 1999, by and
between Xxxxxxx.xxx Corporation (hereinafter referred to as Cayenta or
Contractor) and Waste Management, Inc. (hereinafter referred to as Customer).
ARTICLE I - SCHEDULE
A. STATEMENT OF WORK. Cayenta shall provide, on a fixed price basis, the
necessarypersonnel, and services as required by the Contractor to complete
the tasks contained in the attached Statement of Work (SOW).
B. PERIOD OF PERFORMANCE. The period of performance under this Contract shall
commence on September 1, 1999 and expire on November 30,1999.
ARTICLE II - CONSIDERATION
A. Consideration. In consideration of the work to be performed under the
Statement of Work, Cayenta shall be paid [...***...] plus expenses. A
[...***...] deposit will be paid to Cayenta upon the execution of the
contract.
B. INVOICING. An original and one copy of each invoice shall be submitted
every two weeks to the customer in the amount of [...***...], plus
expenses.
C. PAYMENT. Payment shall be net 15 days from submission of the invoice.
D. REIMBURSEMENT FOR PER DIEM AND OTHER EXPENSES. Cayenta shall be reimbursed
for reasonable and allowable per them and other expenses incurred in the
performance of this effort. Per diems and other expenses will be included
on each invoice submitted and are estimated at [...***...] of total labor
costs.
ARTICLE III - CONTENTS OF CONTRACT
The provisions of the following attached articles and documents are made a part
of this Contract:
1. Attachment A. Statement of Work
2. Attachment B. General Provisi ons
*CONFIDENTIAL TREATMENT REQUESTED
ARTICLE IV - TERMINATION OF CONTRACT FOR CONVENIENCE
Customer may, for any reason, at any time or for its convenience, terminate
this Contract and performance thereunder in whole, or, in part, by written
notice of termination issued to Cayenta, which notice shall state the extent
to which such performance shall be terminated and the date upon which such
termination shall become effective. Cayenta shall be paid for all work that
was authorized by Customer prior to the date of termination. Provisions 5, 6,
7, 8, 9, 10, 11, 13 and 18 shall survive any termination of this Contract.
ARTICLE V - TERMINATION OF CONTRACT FOR DEFAULT
Should Customer breach at any time, any of the clauses contained herein,
Cayenta reserves the right to terminate the Contract for default by written
notice of termination issued by Cayenta. Such notice shall state the extent
to which such performance shall be terminated and the date upon which such
termination shall become effective. Cayenta shall be paid for all work that
was authorized by Customer prior to the date of termination. Provisions 5, 6,
7, 8, 9, 10, 11, 13 and 18 shall survive any termination of this Contract.
SIGNATURE PAGE
BOTH PARTIES hereto warrant and represent that they have full right, power
and authority to execute this Contract.
IN WITNESS WHEREOF, the parties hereto have executed this agreement as of the
day and year first above written.
WASTE MANAGEMENT, INC. THE TITAN CORPORATION
XXXXXXX.XXX
------------------------------- -------------------------------
SIGNATURE SIGNATURE
XXXX XXXXXX, VICE PRESIDENT IS XXXXX XXXXXXX, CEO
------------------------------- -------------------------------
NAME AND TITLE NAME AND TITLE
SEPTEMBER 8,1999 SEPTEMBER 8,1999
------------------------------- -------------------------------
DATE DATE
ATTACHMENT A
Statement of Work
Cayenta shall provide the necessary personnel, services, materials, equipment
and facilities necessary for the successful accomplishment of this Contract
as follows:
Assist in:
A. Creation of near-term fixes of the billing process.
B. Developing an IT System strategy, architecture and implementation plan.
C. Creation of high-payoff, near-term fixes of the monthly accounting
close process.
D. Creation of high-payoff, near-term fixes of the accounting for the
intercompany transaction process.
Deliver:
A. Deployment and operational support for near-term fixes of the billing
process.
B. Executable IT System strategy, architecture and implementation plan.
C. Deployment of near-term fixes of the monthly accounting close process.
D. Deployment of near-term fixes of the accounting for the intercompany
transaction process.
ATTACHMENT B
General Provisions
1. PAYMENT FOR SERVICES
(a) Customer agrees to pay Cayenta in accordance with the
terms set forth in Article II. Cayenta shall submit an
itemized invoice for the services rendered and authorized
expenses incurred. Invoices shall be payable within thirty
(15) days of submission.
(b) Customer may, upon notice to Cayenta, withhold payment for
work that is not accepted pursuant to the Statement of
Work and/or reasonably question any item(s) reflected on
Cayenta's invoice. Pending the settlement or resolution of
the issues(s) that cause the non-payment by Customer under
this provision, the said non-payment shall not constitute
a default of this Contract. It is understood that Customer
shall pay all amounts due that are not in dispute.
2. INDEPENDENT CONTRACTOR
(a) Cayenta shall perform all Services hereunder as an Independent
Contractor, and nothing contained herein shall be deemed to
create any association, partnership, joint venture, or
relationship of principal and agent or master and servant, or
employer and employee between the parties hereto or any
affiliates or subsidiaries thereof, or to provide either party
with the right, power or authority, whether expressed or implied,
to create any such duty or obligation on behalf of the other
party.
3. CHOICE OF LAW
(a) Cayenta agrees that in carrying out its duties and
responsibilities under this Contract Agreement, it will neither
undertake, nor cause nor permit to be undertaken, any activity
which is illegal under any laws, decrees, rules or regulations in
effect in either the United States or United Kingdom (herein
referred to as "Territories").
(b) Cayenta agrees that it will not, directly or indirectly, give,
offer or promise, or authorize or tolerate to be given, offered
or promised, anything of value to another person, knowing or
having reason to know that such thing of value is to be given,
offered or promised to an official or employee of the governments
of the Territories or of any subdivisions
thereof with the intent to (1) influence any official act or
decision of such official or employee, or (2) induce such
official or employee to use his influence to affect or influence
any act or decision of the governments of the Territories or any
subdivision thereof.
(c) Customer hereby represents and warrants that it is, and will
remain in compliance with the requirements of all applicable
export laws and regulations, including but not limited to the
U.S. Export Administration Regulations and International Traffic
in Arms Regulations. Such requirements include, but are not
limited to obtaining all required authorizations or licenses for
the export or reexport of any controlled item, product, article,
commodity, software or technology.
(d) Without limiting the generality of the foregoing, Customer hereby
represents and warrants that (i) it has not been, and is not
currently, debarred, suspended or otherwise prohibited or
restricted from exporting, reexporting, receiving, purchasing,
processing or otherwise obtaining any item, product, article,
commodity, software or technology regulated by any agency of the
United States; and (if) Customer will not export or reexport any
software or technology or the direct product thereof received
from the Contractor under this Contract except in strict
accordance with any applicable export regulations. Customer
agrees to indemnify and hold harmless Cayenta from any costs,
penalties or other losses caused by, or related to, any violation
or breach of the warranties contained in this provision.
(e) This Contract, and the performance of breach thereof, shall be
governed by and interpreted as to substantive matters in
accordance with the applicable laws of the State of California,
U.S.A.
4. PROPRIETARY RIGHTS
(a) All information, reports, studies, object or source code, flow
charts, diagrams and other tangible or intangible material,
collectively ("Materials") of any nature whatsoever produced by
or as a result of any of the Services and Deliverables, and all
copies of the foregoing, shall be the sole and exclusive property
of Cayenta and such Materials shall be deemed "'works made for
hire", of which Cayenta shall be deemed the author. Customer
shall retain the right to utilize the Materials for internal use
without restriction.
(b) Cayenta warrants that all Materials developed under this Contract
shall be Cayenta's own work.
5. INDEMNIFICATION
(a) Cayenta hereby represents and warrants that any information,
material, products, designs, specifications or instructions, or
the use thereof, provided by Cayenta does not infringe a patent,
utility model, industrial design, copyright, trade secret or
trademark in any country where Cayenta performs Services or
provides Deliverables.
(b) Cayenta will defend or settle any claim against Customer that the
Services and Deliverables delivered under this Contract or
Cayenta's use thereof infringe a patent, utility model,
industrial design, copyright, trade secret, trademark or other
third party intellectual property right in the country where
Cayenta performs Services or provides Deliverables, provided that
Customer:
(1) promptly notifies Cayenta in writing of the claim, and
(2) cooperates with Cayenta in, and grants Cayenta sole authority
to control the defense and any related settlement.
(c) Cayenta will pay the cost of such defense and settlement and any
costs, attorney's fees and damages awarded by a court of
competent jurisdiction against Cayenta. If such a claim is made
or appears likely to be made, Cayenta may procure the right for
Customer to continue using the Deliverable and receiving the
Services, may modify the Deliverable and/or the Services, or may
replace same. If use of the Services and/or Deliverables is
enjoined, Cayenta will modify Services and/or Deliverables and
provide substitute Services and/or Deliverables acceptable to
Customer that do not infringe, or refund Customer for payments
made for such Services and/or Deliverables which are subject to
any injunction.
(e) Customer shall defend, indemnify, and hold Cayenta harmless from
and against any claim, liability, loss cost or expense (including
reasonable attorney's fees) arising out of or resulting from (i)
any personal injury or death to persons, or damage to property,
in connection with the Services and Deliverables provided
hereunder, and (ii) the negligence or willful misconduct of
Customer, or its agents, employees' or contractors' connection
with the Services and Deliverables provided hereunder.
6. LIMITATION OF LIABILITIES
Cayenta shall have no liability for any claim relating to this Contract
in excess of the fees and expenses payable hereunder. In no event shall
Cayenta be liable to the Customer for indirect, special, incidental or
consequential damages.
The choice to implement any alterations to business processes will be the
sole responsibility of the Customer. Cayenta will not assume the role of
management, nor will Cayenta or any of its personnel or agents direct
employees of Customer to take specific actions.
This scope of this project does not include Year 2000 analysis or
remediation. In no event will Cayenta be liable for damages related to
Year 2000 effects on the Customers systems.
7. CONFIDENTIAL INFORMATION
During the course of this Contract, Customer and Cayenta will expose one
another to confidential and proprietary information and trade secrets of
the other and of parties from whom they have been licensed and/or
otherwise authorized to provide products and services, including, without
limitation, software and hardware designs and specifications, equipment,
software, and information relating to marketing plans and future
products, service capabilities, performance, and capacities and further
including, without limitation, the proprietary information and trade
secrets relating to the Statement of Work (collectively, "'Confidential
Information"). "Confidential Information" also includes (i) all
information in any form, belonging to Discloser or its affiliated
companies that is maintained in confidence by Discloser and received by
Recipient from Discloser or any of the Discloser's affiliates and (ii)
for Cayenta's obligations, as described in Provision 8(c) below, the
Deliverables.
(a) For the purpose of this Provision, "Recipient" refers to the party
receiving Confidential Information and "Discloser" refers to the
party disclosing Confidential Information. Recipient acknowledges
the proprietary and sensitive nature of Confidential Information,
and the importance of maintaining the secrecy and confidentiality of
such Confidential Information and agrees that (i) it shall use
Confidential Information only as authorized by this Contract, (ii)
it shall hold Confidential Information in confidence, (iii) it shall
not disclose any Confidential Information to anyone except in
accordance with this Contract, and (iv) it shall use its best
efforts to prevent any unauthorized disclosure of Confidential
Information.
(b) Confidential Information does not include information (i) generally
known on a non-confidential basis (through no fault of Recipient) to
companies in Discloser's business; (ii) lawfully obtained by
Recipient without restriction on disclosure; (iii) known to
Recipient prior to receipt from Discloser without restriction on
disclosure; (iv) independently developed by Recipient without use of
information provided by Discloser; (v) disclosed by Discloser to a
third party without a duty of confidentiality on the third party or
(vi) disclosed by Recipient with Discloser's prior written approval.
(c) Recipient agrees not to disclose Confidential Information to any
third party and to use the Confidential Information only in
connection with the Services and Deliverables. Recipient will limit
access to the Confidential Information to its officers, directors,
employees and Customers who are performing or supervising the work
hereunder. Recipient will promptly notify Discloser of any
unauthorized disclosure or use of the Confidential Information of
which Recipient becomes aware and will take all steps reasonably
requested by Discloser to remedy any such disclosure or use.
Recipient shall not use, copy, duplicate or otherwise reproduce or
retain all or any portion of the Confidential information in any
form or manner whatsoever except as authorized in writing by
Discloser. Recipient Will reproduce all confidential and other
proprietary rights notices appearing on originals on all such
authorized copies. The obligation to protect Confidential
Information shall terminate eight years from the date last signed
above.
(d) Recipient will restrict disclosure of Confidential Information
solely to those of its employees and agents with a need to know such
Confidential Information for the purpose of performing the work
under this Contract. Recipient will ensure that any such person
permitted access to any portion of the Confidential Information is
advised of its confidential nature and the related obligation. Such
purpose shall be the only one for which Recipient may use the
Confidential Information. Recipient shall use and shall require that
its agents and employees use the same degree of care with respect to
Confidential Information as Recipient uses with respect to its own
proprietary information.
(e) Recipient shall not reverse compile, reverse assemble, or reverse
engineer meaning of any software code or equipment which are within
the meaning Confidential Information.
(f) Upon termination of the Contract or upon Discloser's request,
Recipient agrees to surrender and deliver to Discloser all
Confidential Information, which Discloser has provided to Recipient.
(g) If an attorney is used to enforce this Provision 8, the prevailing
party in any action or proceeding to so enforce this Provision 8
shall be entitled to its reasonable attorney's fees and cost
incurred in such action or proceeding.
8. PROJECT MANAGERS
Cayenta shall assign a Cayenta employee (the "Project Manager") for each
assignment to manage the assignment and oversee the Contract. The
"Project Manager" is responsible for monitoring the Cayenta's work and
for review and approval of invoice documentation.
During the term of this Contract, the following Cayenta technical and
administrative representatives are hereby designated:
Xxxx Xxxxxxxx
Project Manager
Xxxx Xxxxx
VP Finance and Operations
(a) Cayenta's Project Manager is responsible for the day-to-day
clarifications and guidance of Cayenta's personnel as may be
required under the Contract.
(b) Matters relating to prices/costs, terms and conditions, quantities
to be supplied, delivery schedule and financial adjustments shall be
handled through the technical or administrative contacts above.
(c) Agreements between the parties, which by their nature effect a
change to ge to the Contract, shall only be binding upon the parties
when such agreements or actions are specifically authorized in
writing by the VP Finance and Operations.
(f) All correspondence and communications between the Cayenta and
Customer shall be directed to either of the technical or
administrative contacts above.
9. PUBLICITY
Customer Cayenta each agree not to make any public disclosure, except as
may be legally required, relating to this Contract, Customer or its
affiliated companies, or Cayenta or its affiliated companies, without
obtaining the prior written consent of Cayenta and the Customer.
10. NON-SOLICITATION
During and for a period of one-year following termination of this
Contract, neither party will, without prior written consent of the other
party, hire or attempt to hire any employee of the other party or its
affiliated companies.
11. WORK POLICY
(a) Cayenta further agrees to employ his best efforts to meet
Customer's assignment deadlines and documentation standards, as
applicable. Unless otherwise agreed upon, Cayenta. shall meet with
Customer personnel to discuss and review the progress status of the
current assignment on a regular basis. Cayenta will comply with all
provisions set forth in the Statement of Work.
12. ADDITIONAL PROVISIONS
(a) Paragraph Headings. Paragraph headings are for convenience only and
shall not be a part of the Terms and Conditions of the Contract.
(b) Waiver. Failure by either party at any time to enforce any
obligation by the other party, to claim a breach of any term of
this Contract or to exercise any power agreed to hereunder will not
be construed as a waiver of any right, power or obligation under
this Contract win not affect any subsequent breach, will not
prejudice either party as regards any subsequent action.
(c) Severability. If any term or provision of this Contract should be
declared red invalid by a term and/or provision, this Contract
shall remain unimpaired and in full force and effect
(d) Subcontractors. Customer reserves the right of approval of
unimpaired Subcontractors who will service Customer. Approval of
such Subcontractors will not be unreasonably withheld by Customer.
Approval of any Subcontractors by Customer shall not constitute the
superseding or waiver of any right of the Customer to reject work
that is
not in conformance with its standards or this Contract. Cayenta
shall be fully responsible for all acts and omissions of its
Subcontractors. Nothing in this Contract shall be construed to
create any contractual relationship between Customer and any
Subcontractors, nor any obligation on the part of Customer to pay
or to see to the payment of any money due any Subcontractors,
except as may otherwise by required by law.
(e) Assignment. Neither party may assign any rights nor obligations
under this Contract without the prior consent of the other;
provided, however, that Cayenta may assign any rights or
obligations under this Contract to a subsidiary or affiliate.
(f) Modification. No modification, waiver or amendment of any term- or
conditions of this Contract shall be effective unless and until it
shall be reduced to writing and signed by both of the parties
hereto or their legal representatives. All legally required
Amendments will automatically become part of this Contract thirty
(30) days after notification to both parties.
(g) Survival. The provisions of this Contract that by their nature and
content are intended to survive the performance hereof, shall so
survive the completion and termination of this Contract.
(h) Complete Agreement. This Contract together with the Statement of
Work constitutes the entire agreement of the parties with respect
to its subject matter and may not be modified in any way except by
written agreement signed by both parties. There are no other
agreements either express or implied with regard to this subject
matter.
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Change Order for Cayneta Support of WMI
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BACKGROUND:
Cayenta was originally contracted by WMI to develop an IT strategy and
architecture plan to established a future state solution blueprint that
greatly improves IT support of business operations and management. The
initial proposal included two support projects to identify quick-fixes for
the Billing and Financial Close processes. All three projects were originally
bid on a fixed price basis for a total of [...***...].
CURRENT STATUS:
Shortly after the project start in early September, Cayenta encountered
numerous related projects that were being conducted by Price Waterhouse
Coopers and Xxxxxx Xxxxxxxx. This generated significant unplanned
coordination effort for all Cayenta teams.
Cayenta was also requested to refocus their priorities on improving support
and operation of the current IT environment, primarily MAS. We received
verbal approval from Xxxxx Xxxxxxxxx and Xxxx Xxxxxx to proceed on this track
and we engaged additional consultants to support the changing focus of our
project. Two weeks later, Xxxxx Systems was brought in to take over all IT
related activities. This too resulted in more refocusing of our efforts and
engaging in additional coordination activity with both old and new players.
BILLING ARRANGEMENT AND ESTIMATE:
Our estimate for work beyond our initial proposal is an additional [...***...].
Our plan is to deliver our final recommendations by Nov. 8 and wrap-up all
consultant work by Nov. 12. We will separately propose our support for any
authorized quick-fix projects that are approved by WMI.
APPROVAL:
Cayenta: WMI:
/s/ XXXX XXXXXXXX Illegible 10/28/99
-------------------------------------- ---------------------------------
Xxxx Xxxxxxxx, Cayenta Program Manager Xxxxx Xxxxxxxxx, WMI Chairman
Date: Date:
--------------- ---------------
*CONFIDENTIAL TREATMENT REQUESTED
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