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Exhibit 10.30
SERVICE AGREEMENT
AGREEMENT made as of this first day of June, 1993 by and between
XxXxxxxx, Xxxxxxxx & Xxxxxx, Inc. ("MCM"), a New York corporation, and Key
Information Systems, Inc. ("KIS"), a New York corporation.
WHEREAS, KIS is in the business of developing, manufacturing, and
maintaining computer software products, and providing management and other
consulting services; and
WHEREAS, MCM desires to retain KIS to manage MCM's data center, to
provide consulting services, to maintain certain software products licensed to
MCM by KIS and other software providers, and to provide other services with
respect to MCM's computer system;
NOW THEREFORE, in consideration of the premises and the mutual
covenants and conditions contained herein and other good and valuable
consideration, the receipt of which is hereby acknowledged, the parties agree as
follows:
1. SERVICES. Subject to the terms and conditions hereinafter set forth,
KIS will furnish MCM the services set forth on Exhibit A hereto
(collectively the "Services"), at the level set forth on Exhibit B
hereto.
Additional services which are substantial and materially different from
the Services may be ordered by MCM under this Agreement at any time by
written work order approved in advance by MCM substantially in the form
attached hereto as Exhibit C. Such additional services will be provided
upon the terms and conditions set forth in this Agreement and in the
work order therefor.
The parties acknowledge that all Services to be provided to MCM by KIS
shall also, at MCM's request, be provided to MCM's subsidiaries at no
additional charge; provided, however, that the provision of Services to
MCM's subsidiaries shall in no event expand the scope of the Services
as set forth on Exhibit A or increase the personnel resources to be
provided by KIS pursuant to Section 4.
2. TERM OF AGREEMENT. This Agreement shall commence as of the date
hereinbefore written. Subject to the provisions relating to termination
contained herein, this Agreement shall have an initial term of two (2)
years (the "Initial Term") and shall continue in full force and effect
after the Initial Term until terminated by either party pursuant to
Sections 6 or 19 hereof.
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3. CHARGES FOR SERVICES TO BE PAID BY THE CUSTOMER.
(a) For the Services furnished by KIS under this Agreement, MCM
shall pay KIS the charges enumerated in Exhibit D attached
hereto, in accordance with the terms set forth therein. After
the Initial Term, these charges shall be increased from time
to time by mutual written agreement of the parties; provided,
however, that in no event shall the charges to be paid by MCM
hereunder at any time exceed those then being paid to KIS by
any other customer for substantially similar services without
MCM's prior written consent (such consent not to be
unreasonably withheld).
(b) There shall be added to the charges for the Services hereunder
amounts equal to any sales, use, personal property, or excise
taxes, however designated, levied or based on such charges or
on this Agreement, paid or payable by KIS in respect to the
Services, exclusive however of taxes based on the net income
of KIS or any employee or contractor of KIS.
4. PERSONNEL. To perform its Services hereunder, KIS shall make available
to MCM, at no additional charge to MCM, the personnel resources set
forth on Exhibit E. Additional time and/or additional KIS personnel
will be provided by KIS at MCM's request pursuant to a work order as
described in Section 1, at KIS' standard rates set forth on Exhibit E
as amended from time to time by mutual written agreement of the
parties.
The parties acknowledge and agree that the Services to be provided by
Xxxxxx Xxxx, President of KIS, pursuant to and in accordance with the
terms of this Agreement, are special, unique, and of extraordinary
character, and that KIS may not substitute other KIS personnel for Xx.
Xxxx without the prior written consent of MCM. KIS agrees that Xx. Xxxx
shall be available to MCM for the provision of Services no less than
thirty hours per week, excluding absences of two weeks per year for
illness and four weeks per year for vacation.
MCM acknowledges that, for acceptable performance of Services by KIS
pursuant to this Agreement, it shall be necessary for MCM to employ no
less than one full-time computer operator/programmer.
5. TERMINAL AND COMMON CARRIER EQUIPMENT. The parties acknowledge and
agree that the computer equipment and hardware located at MCM's offices
and utilized by KIS in its performance of Services, including without
limitation the equipment set forth on Exhibit F-1 attached hereto, as
amended from time to time by written notice form MCM to KIS, is and
shall remain, except as otherwise specified in writing by MCM, the
exclusive property of MCM; provided, however, that the equipment set
forth on Exhibit F-2 attached hereto,
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as amended from time to time by written notice from KIS to MCM, is and
shall remain the exclusive property of KIS and KIS shall adequately
label or otherwise identify to third parties its ownership rights in
such equipment. Neither party shall remove the other's property in
whole or in part from MCM's premises without the prior written consent
of the owner thereof.
6. LIMITATION OF LIABILITY. In the event that either party is unable to
perform any of its obligations under this Agreement as a result of
natural disasters, strikes, lockouts, riots, acts of war, epidemics,
fire, power failures, actions or decrees of any court or administrative
or governmental body or communications line failure not the fault of
the affected party (hereinafter referred to as a "Force Majeure
Event"), the party who has been so affected immediately shall give
notice to the other party and shall do everything reasonably possible
to resume performance. Upon receipt of such notice, this Agreement,
including without limitation MCM's obligation to pay charges to KIS
pursuant to Section 3, shall promptly be suspended. If the period of
non-performance exceeds thirty (30) days from the receipt of notice of
the Force Majeure Event, the party whose ability to perform has not
been so affected may, by giving written notice, immediately terminate
this Agreement.
IN NO EVENT SHALL EITHER PARTY BE RESPONSIBLE TO THE OTHER OR TO ANY
THIRD PARTY UNDER THIS AGREEMENT FOR ANY LOSS OF PROFITS OR ANY
SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES, (EXCEPT FOR CLAIMS FOR
WHICH MCM IS INDEMNIFIED BY KIS PURSUANT TO SECTION 8(F)), EVEN IF
ADVISED OF THE POSSIBILITY OF SUCH DAMAGES; PROVIDED, HOWEVER, THAT
THIS LIMITATION SHALL NOT APPLY WITH RESPECT TO ANY INTENTIONAL AND
MALICIOUS BREACH OF THIS AGREEMENT BY EITHER PARTY.
7. CONFIDENTIALITY AND PROPRIETARY RIGHTS. The parties agree that the
software programs, source codes and related documentation furnished by
KIS to MCM in connection with the Services, including any
modifications, enhancements, or updates thereto are, and shall remain,
the sole property of KIS; provided, however, that (a) any programs or
enhancements or modifications thereto or related documentation created
pursuant to separate work orders as described in Section 1 which are
designed in such work orders as MCM - proprietary shall be and remain
works-for-hire which are the sole property of MCM and KIS shall have no
proprietary rights therein, including without limitation the right to
market such programs, enhancements or modifications; and (b) KIS agrees
to execute any and all assignments and/or other instruments and assign
any and all applications, and do all things with MCM may deem necessary
or appropriate in order to apply for, obtain, maintain, enforce and
defend copyrights or other forms of protection, or in order to assign
and convey or otherwise make available to MCM the sole and exclusive
right, title and
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interest in and to said programs, documentation, enhancements or
modifications (including without limitation the source code therefor).
No right to print or copy, in whole or in part, any KIS proprietary
materials is granted hereunder except as provided in the Software
License Agreement of even date herewith between MCM and KIS (the
"Software License Agreement") or as otherwise provided in writing by
KIS. MCM and KIS each agree to take the highest reasonable precautions
to protect the other's proprietary programs or other information to
which MCM or KIS, as the case may be, may gain access as a result of
the Services provided under this Agreement. MCM and KIS each agree to
hold all of the other's customer lists, data, business methods and
information, programs and software, and trade secrets to which MCM or
KIS as the case may be, may gain access as a result of the Services
provided under this Agreement in strictest confidence, not to use or
disclose such information to anyone without the explicit written
permission of the other, and to take the highest reasonable precautions
to protect the security and confidentiality of such information. All
proprietary materials or information provided by MCM to KIS or by KIS
to MCM, or copies thereof, shall be returned to the party providing
same within thirty (30) days after the expiration or termination of
this Agreement except as provided in the Software License Agreement.
Notwithstanding anything contained herein to the contrary, the parties
acknowledge that (a) KIS has no ownership rights in computer programs
developed by or on behalf of the MCM by parties other than KIS to
interface with KIS software, which computer programs shall remain the
exclusive property of MCM; (b) the covenants of each party hereunder to
maintain the confidentiality of the other's proprietary information
shall extend, as to any item of information, for seven (7) years from
the date of the receiving party's receipt of such item of information;
and (c) the covenants of each party hereunder to maintain the
confidentiality of the other's proprietary information shall not extend
to information previously available to such party from another source
or which becomes available on a non-confidential basis from another
source or information which such party is required by law to disclose.
KIS shall require each employee of KIS to execute a confidentiality
agreement in the form attached hereto as Exhibit G.
The parties acknowledge that the entities set forth on Exhibit H
attached hereto are direct competitors of KIS and that any disclosure
by MCM of KIS' confidential information to such entities in violation
of Section 7 may cause immediate, substantial and irreparable harm to
KIS.
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8. WARRANTIES. KIS hereby warrants and covenants as follows:
(a) That KIS has complied and will comply with all codes,
regulations and laws applicable to its performance of Services
under this Agreement, and has obtained or will obtain all
necessary permits, licenses and other authorizations necessary
for its performance of Services under this Agreement.
(b) That all Services KIS performs under this Agreement will be
performed in a timely, competent and workmanlike manner by
individuals of appropriate training and experience, and that
all work will meet or exceed industry standards.
(c) That KIS is and shall remain, throughout the term of this
Agreement, a corporation duly organized, validly existing and
in good standing under the laws of the State of New York.
(d) That KIS has full power and authority (including full
corporate power and authority) to execute and deliver this
Agreement and to perform its obligations hereunder. This
Agreement constitutes the valid and legally binding obligation
of KIS, enforceable in accordance with its terms and
conditions.
(e) That the Services will meet the requirements set forth in
Exhibit B.
(f) That KIS shall at all times maintain workmen's compensation,
property and liability insurance as described on Exhibit I.
(g) That KIS (i) currently has a net worth (under generally
accepted accounting principles) of not less than twenty-five
thousand dollars ($25,000.00); (ii) will at no time have a net
worth (under generally accepted accounting principles) of less
than twenty-five thousand dollars ($25,000.00); (iii) shall
achieve a net worth (under generally accepted accounting
principles) of not less than thirty thousand dollars
($30,000.00) within one year of the effective date of this
Agreement; (iv) shall maintain at all times thereafter a net
worth (under generally accepted accounting principles) of not
less than thirty-thousand dollars ($30,000.00); and (v) shall
notify MCM in writing immediately of any non-compliance by KIS
with the covenants set forth in this subsection 8(g).
(h) That KIS' performance of Services, including without
limitation the creation of works-for-hire pursuant to Section
7, will not infringe or misappropriate a patent, trademark,
copyright, trade secret or other
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intellectual property right of a third party; and that KIS
shall (i) indemnify, defend and hold harmless MCM, its
officers, directors, employees, affiliates, agents, successors
and assigns (including without limitation the payment of all
reasonable attorneys' fees and expenses) from and against any
claim asserted or suit or proceeding alleging same; and (ii)
in the event any performance of Services is held to constitute
an infringement or misappropriation, use its best efforts to
either procure for MCM the right to continue using the
infringing item under the terms set forth in this Agreement or
replace or modify said item so that it becomes non-infringing
and not a misappropriation, provided that such replacement or
modified item has the same functional capabilities and
performance characteristics as the replaced or modified item.
The remedies set forth in this subsection and in Section 6
state the entire liability and obligation of KIS with respect
to a breach of the warranty set forth in this subsection 8(h).
9. EXPENSES. MCM shall reimburse KIS for appropriate and reasonable
out-of-pocket expenses incurred by KIS in the performance of Services;
provided, however that KIS shall not incur expenses in excess of five
hundred dollars ($500) during any one month period without the prior
written approval of MCM.
10. CONSTRUCTION. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York without regard to the
choice of law rules thereof.
11. ASSIGNMENT. Neither party may assign its rights and obligations under
this Agreement without the prior written consent of the other, except
that either party may assign its rights and obligations (except as
otherwise provided in Section 4) under this Agreement to any successor
to the business of such party by purchase, merger, reorganization,
assignment, or otherwise.
12. WAIVER OF BREACH. The failure of either party to require the
performance of any term of this Agreement or the waiver of either party
of any breach hereunder shall not prevent a subsequent enforcement of
such term nor be deemed a waiver of any subsequent breach.
13. RELATIONSHIP OF THE PARTIES. The parties understand and agree that all
of the Services performed hereunder by KIS shall be as an independent
contractor and not as an employee or agent of MCM. KIS shall have no
authority whatsoever to bind MCM on any agreement or obligation and
agrees that neither KIS nor any employee of KIS shall hold itself or
himself out as an employee or agent of MCM.
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14. SCOPE OF AGREEMENT. This Agreement, together with the Software License
Agreement, the Option Agreement between KIS and MCM of even date
herewith (the "Option Agreement") and the Escrow Agreement, constitutes
the entire agreement between the parties with respect to the subject
matter hereof, and no representation, condition, understanding or
agreement of any kind shall be binding on the parties unless
incorporated herein or therein. This Agreement may not be modified
except by a written agreement signed by authorized representatives of
both parties.
15. SEVERABILITY. In the event that any provision of this Agreement or
application hereof to any party or in any circumstances shall be
determined to be invalid, unlawful, or unenforceable to any extent, the
remainder of this Agreement, and the application of any provision to
parties or circumstances other than those as to which it is determined
to be unlawful, invalid or unenforceable, shall not be affected
thereby, and each remaining provision of this Agreement shall continue
to be valid and may be enforced to the fullest extent permitted by law.
16. SUBCONTRACTING. KIS will not subcontract or permit anyone other than
KIS personnel to perform any of the work, services, or other
performance required of KIS under this Agreement without the prior
written consent of MCM, such consent not to be unreasonably withheld.
Without limiting the foregoing, KIS agrees that, prior to engaging any
subcontractor or third party service provider hereunder, it shall
require such subcontractor or provider to execute and deliver to MCM a
confidentiality agreement in the form attached hereto as Exhibit G.
17. NON-COMPETE. MCM acknowledges and agrees that KIS may provide services
substantially similar or identical to the Services to be provided to
MCM hereunder to other customers and consents to KIS servicing such
other customers insofar as such servicing does not result in a breach
of this Agreement; provided, however, that (a) KIS shall not utilize
any of the equipment set forth on Exhibit F-1, and shall not utilize,
to any material extent or in any manner which interferes with MCM's use
thereof, any additional property of MCM in providing services to other
customers; and (b) KIS shall not, during the term of this Agreement and
for a period of one (1) year after the termination of this Agreement
for any reason whatsoever; (i) enter into or engage in any business
directly competitive with that currently carried on by MCM or provide
services to customers reasonable believed by MCM to be in direct
competition with MCM (such customers to be specified in a writing to be
delivered by MCM to KIS prior to MCM's execution and delivery of this
Agreement, with quarterly updates by MCM thereto) with respect to any
business conducted by MCM during the term of this Agreement, without
the prior written consent of MCM; or (ii) employ any employee of MCM
who was
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an employee during the term of this Agreement. In addition to and not
in limitation of the foregoing, the parties agree that, during the term
of this Agreement and for a period of one (1) year after the
termination of this Agreement for any reason whatsoever; (a) MCM shall
not enter into or engage in any business directly competitive with that
currently carried on by KIS; and (b) MCM will not employee Xxxxxx Xxxx,
Xxxxxx Xxxx, or any employee of KIS who was an employee during the term
of this Agreement.
18. EXECUTION. This Agreement may be executed in counterparts, each of
which shall be deemed to be an original but all of which together shall
constitute one agreement.
19. TERMINATION. (a) Notwithstanding any provision of this Agreement to the
contrary, this Agreement may be terminated by either party at any time
after its Initial Term by ninety (90) days prior written notice (which
notice may be given ninety (90) days prior to the end of the Initial
Term or any time thereafter) to the other. The obligations of the
parties set forth in Sections 5, 7, 8, 17, and 25 shall survive the
termination or expiration of this Agreement for any reason. This
Agreement may be terminated pursuant to this Section 19 as to
accounting software maintenance without terminating the remaining
Services, in which event the charges to be paid by MCM for Services
under this Agreement shall be correspondingly reduced and this
Agreement shall continue in full force and effect as to all Services
which are note terminated; provided, however, that this Agreement shall
not be deemed to have been "terminated" for purposes of Section 20 and
21 hereof or for any other purposes of this Agreement (except as
otherwise set forth in Section 22) unless it is terminated as to all of
the Services.
(b) Either party may terminate this Agreement at any time: (i) if the
other party materially breaches or is in default of any material
obligation hereunder which is not cured within thirty (30) days after
receipt of written notice of such default from the non-defaulting
party; or (ii) immediately upon written notice to the other, if such
other party becomes insolvent or is failing to pay its debts as and
when they become due, makes a general assignment for the benefit of
creditors, suffers or permits the appointment of a receiver for its
business or assets, becomes subject to any proceeding under any
bankruptcy or insolvency law (not commenced by the party seeking to
terminate) whether domestic or foreign, or has wound up or liquidated,
voluntarily or otherwise; provided, however, that any involuntary
bankruptcy shall not be grounds for termination if dismissed within
thirty (30) days. MCM may terminate this agreement immediately upon
written notice to KIS if Xxxxxx Xxxx has become permanently disabled or
deceased or is no longer associated with KIS (or any permitted
successor or assignee) as an employee or agent thereof.
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KIS agrees to make available to MCM, by work order as described in
Sections 1 and 4, reasonable services necessary for an orderly
transition up to the effective date of termination, and at double the
rates set forth in Exhibit E after the effective date of termination,
of this Agreement for any reason, including but not limited to
providing all files and intermediate materials in the format described
by MCM, and all supplies and other properties of MCM.
20. SEVERANCE FEE. If this Agreement is terminated by MCM without cause
pursuant to Section 19(a) prior to December 31, 1996, MCM shall pay
KIS, on the effective date of such termination, a severance fee equal
to two times the base (without regard to work orders) monthly charges
being paid to KIS pursuant to Section 3 immediately prior to said
effective date.
21. TERMINATION FEE. If this Agreement is terminated by either party for
any reason whatsoever prior to December 31, 1996, MCM shall pay to KIS,
on the effective date of such termination, a termination fee in an
amount equal to $1,505 multiplied by the number of months and portions
of months between said effective date and December 31, 1996; provided,
however, that the total termination fee payable by MCM hereunder shall
be reduced by $3,010 in the event that a severance fee is paid by MCM
to KIS pursuant to Section 20.
22. WORKSPACE. During and only during the term of this Agreement, as
described herein, MCM shall use reasonable efforts to make available to
KIS for KIS' performance of Services pursuant to this Agreement, and
for KIS' performance of services to other KIS customers, reasonable
office space designated by MCM not to exceed two thousand (2,000)
square feet and not to be less than one thousand (1,000) square feet,
together with access to the common areas pertaining thereto,
(collectively the "Premises") in MCM's then-current offices; provided,
however, that the amount of space to be provided by MCM hereunder shall
decrease in proportion to any decrease in the six of KIS' total work
force as of the date of this Agreement. KIS shall comply with the
following covenants and obligations with respect to its use of the
Premises: (a) KIS shall use the Premises for purposes other than the
performance of Services to MCM only if all Services required by this
Agreement are being performed in accordance with the terms and
conditions of this Agreement; (b) KIS shall use the Premises only for
the operation of a computer services business; (c) KIS shall make no
use of the Premises which prohibits or interferes with MCM's operation
of its business or with KIS' performance of Services to MCM; (d) KIS
shall occupy and use the Premises only as directed by MCM and in
compliance with such of MCM's covenants and obligations under MCM's
lease with respect to the Premises as KIS shall from time to time
receive notice of in writing; (e) MCM shall have no liability to KIS,
any KIS employee, or any third party on the Premises as a result of or
in connection with KIS' use of the Premises, except to the extent that
such liability may not, as a matter of law, be
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waived; (f) MCM shall cause the Premises to be furnished, maintained
and serviced at a level comparable to that for MCM's office space in
general, but shall provide no additional furnishings, maintenance or
services with respect to the Premises; (g) KIS shall indemnify, defend
and hold harmless MCM, its officers, directors, employees, affiliates,
agents, successors and assigns from and against any and all damages,
losses, claims and expenses (including without limitation reasonable
attorney's fees and expenses) incurred by any of such parties as a
result of, arising out of or in any way relating to KIS' use of the
Premises, except to the extent that so indemnifying, defending or
holding harmless would violate applicable law; (h) KIS shall allow MCM
such access to the Premises at all times as may be reserved by MCM's
landlord or as MCM may require to preserve, protect, maintain, repair,
services and inspect the Premises, and shall not install any lock on
any door to or in the Premises without furnishing MCM with a key
thereto; (i) MCM shall have the right to change the location of the
Premises within MCM's offices at any time and from time to time, in its
reasonable discretion; (j) KIS shall surrender the Premises when
required to do so hereunder in the same order and condition, reasonable
wear and tear excepted, as existed at the time of KIS' occupancy
thereof, (k) KIS shall at all times maintain property and liability
insurance as described on Exhibit I with respect to the Premises and
shall not seek to recover against MCM on account of any damage caused
to KIS or to any of KIS' property by reason of casualty or risk
coverable under an all-risk property insurance policy even if the same
arises out of MCM's negligence; (l) KIS shall not allow any person
other than its own employees or agents, consultants or contractors
providing services to MCM to use or occupy the Premises and shall not
make any alternations, installations or additions in or to the Premises
without MCM's consent. KIS' indemnity obligation, but not MCM's
obligation to make the Premises available, shall survive the
termination of this Agreement for any cause whatsoever.
For purposes of this Section 22, this Agreement shall be deemed to have
been "terminated" if it is terminated as to any of the Services other
than accounting software maintenance.
If MCM determines, in its sole discretion, that it is no longer in
MCM's best interest to procure or to continue to provide space of KIS
as set forth in this Section 22, MCM may discontinue providing any
space to KIS on sixty (60) days prior written notice to KIS and KIS'
sole recourse in such event shall be that it may, at its option,
require an amendment to Exhibit B to this Agreement, and, except as set
forth below, failure of the parties to reach any agreement on such
amendment shall be deemed a termination without cause by MCM pursuant
to Section 19(a) (except that such termination may occur prior to the
end of the Initial Term).
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Notwithstanding the foregoing, in the event that KIS refuses to provide
information or execute any instrument required by MCM's landlord as a
condition to providing or continuing to provide the Premises or any
portion thereof to KIS, MCM shall have not further obligation to
provide the Premises or such portion thereof to KIS and KIS' sole
recourse in such event shall be that it may, at its option, require an
amendment to Exhibit B to this Agreement, and failure of the parties to
reach an agreement on such amendment shall be deemed a termination with
cause by MCM pursuant to Section 19(b)(ii).
23. DEVELOPMENT OF SOFTWARE. The parties acknowledge that KIS is currently
developing or may in the future develop software ("Developmental
Software") (a) separate and apart from the products licensed to MCM
pursuant to the License Agreement or any software provided to MCM as
part of the Services and (b) separate and apart from any products
currently licensed or provided by KIS to other customers of KIS or
subsequently commissioned by other customers of KIS or which KIS is
obligated as of the date of this Agreement by contract to provide. KIS
hereby agrees that KIS will provide a proposal offering to MCM the
opportunity to purchase, license and/or to participate in the
commercialization of any such Developmental Software prior to KIS'
offering a similar opportunity to so purchase, license and/or
participate in the commercialization of such Developmental Software to
an unaffiliated third party. Upon deliver of KIS' proposal to MCM, MCM
shall thereafter have thirty (30) days in which to notify KIS in
writing of MCM's acceptance of the proposal or of MCM's desire to
negotiate with KIS to purchase, license or participate in the
commercialization of the Developmental Software which is the subject to
such proposal. If MCM wishes to negotiate, it will have an additional
thirty (30) days, during which the parties will negotiate in good faith
to execute a contract enabling the venture to proceed. If (a) MCM does
not accept the property within the initial thirty (30) day period, (b)
MCM notifies KIS in writing that it does not wish to accept the
proposal, or (c) the parties commence negotiations but have not
executed a contract within the additional thirty (30) day deadline, KIS
shall have no further obligation to MCM under this Section 23 with
respect to the Developmental Software contained in the proposal,
including multiple similar offers to so purchase, license and/or
participate in the commercialization of the same Developmental
Software, to multiple unaffiliated third parties. Nothing in this
Section 23 shall in any way be construed to obligate KIS to offer to
MCM an exclusive right to purchase, license and/or participate in the
commercialization of any Developmental Software.
Notwithstanding any provision contained in this Agreement to the
contrary, MCM shall have no right to terminate this Agreement pursuant
to Section 19(b)(i) solely as a result of KIS' breach of its
obligations pursuant to this
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Section 23; however, that such inability to terminate the Agreement
shall in no event be deemed a waiver of any additional rights or
remedies in law or in equity which MCM may have for a breach of KIS'
obligations pursuant to this Section 23. MCM's remedy for KIS' breach
of this Section 23 shall be that KIS shall be obliged to make to MCM a
reasonably equivalent offer to that which was made to the third party,
or if more than one, equivalent to the third party offer identified by
MCM.
24. NOTICES. Any notice, request demand or other communication provided for
or permitted hereunder shall be in writing and may be personally
delivered, or sent by certified mail return receipt requested, or by
overnight courier, to the following address:
to KIS: Key Information Systems, Inc.
0000 Xxxxxxx Xxxxxx
Xxxxxxxx Xxxxxxx, XX 00000
Attention: Xxxxxx Xxxx, President
Fax Number: (000) 000-0000
To MCM: XxXxxxxx, Xxxxxxxx & Xxxxxx, Inc.
00 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx Xxxxxxx, President
Fax Number: (000) 000-0000
or such other address as a party may give the other parties by written
notice as provided herein. Any notice, request, demand or other
communication shall be deemed to have been given when received.
25. USAGE. In all references herein to any parties, persons, entities, or
corporations, the use of any particular gender or the plural or
singular number is intended to include the appropriate gender or number
as the text of the foregoing instrument may require.
26. REMEDIES. Each party acknowledges and agrees that monetary damages may
not be a sufficient remedy for any breach of this Agreement by the
other and that, in addition to all other remedies, specific performance
and injunctive or other equitable relief shall be available to the
non-defaulting part as a remedy for any such breach.
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27. NO THIRD PARTY BENEFICIARIES. This Agreement shall not confer any
rights or remedies upon any person other than the parties and their
respective successors and permitted assigns.
28. ADVERTISING. Neither party shall use the name or any trademark or
tradename of the other for any purpose, including publicity and
advertising, except as required by law or with the prior written
consent of such other party, which consent shall not be unreasonably
withheld or delayed.
IN WITNESS WHEREOF, KIS and MCM have caused this Agreement to be executed as of
the date and year first above written.
KEY INFORMATION SYSTEMS, INC., XxXXXXXX, XXXXXXXX & XXXXXX, INC.,
a New York Corporation a New York corporation
By: /s/ Xxxxxx X. Xxxx By: /s/ Xxxxxxx X. Xxxxxxx
------------------------------ -----------------------------
Name: Xxxxxx X. Xxxx Name: Xxxxxxx X. Xxxxxxx
Title: President Title: President
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EXHIBIT A
SERVICES TO BE PROVIDED BY KIS
I. OPERATIONS
KIS shall manage the day-to-day operation of MCM's data center from
6:00 p.m. Sunday to 6:00 p.m. Friday, New York time, including without
limitation:
- Resolving communication problems with carriers of MCM
electronically delivered information and advisory services,
including without limitation TELERATE, ADP, QUOTRON,
KNIGHTRIDDER, REUTERS and COMMERCE DEPT
- Backups-Monthly, weekly, daily; and maintenance thereof in a
secure, off-site facility
- Monthly reorganization of the document and other large data
libraries
- Maintaining hardware inventory and maintenance lists
- Maintaining software inventory and licensing agreements
- Maintaining data-storage medium inventory (disk & tape packs)
- Managing the maintenance of PC software and hardware
- Creating, regularly testing and maintaining a disaster
recovery plan
- Maintaining the automatic processes set forth on Schedule A-1
- Maintaining system and operations documentation
- Establishing and maintaining hardware connections
- Supervising MCM's in-house data processing and center support
staff, and providing coverage during illness or absences of
any staff members.
In addition, KIS shall (a) manage the acquisition, sifting, maintenance
(by third parties), and installation of MCM's data processing hardware
and expendable media, including without limitation the equipment set
forth on Exhibit F-1; (b) provide a help desk from 8:00 a.m. to 5:00
p.m. New York time on business days to assist users with ad hoc
requests relating to MCM's computer hardware, including without
limitation the Wang system and PC's, and to other technical
requirements; and (c) provide on-site support between the hours of 6:00
p.m. Sunday and 6:00 p.m. Friday, New York time, and telephone support
twenty-four hours per day on business days.
II. CONSULTING
KIS shall (a) interpret MCM's needs into data processing requirements,
and shall provide the programming and technical resources needed for
this development effort; (b) develop specifications for interfacing
with information providers such as Telerate and Xxxxxx-Xxxxxx and for
performing other related functions; (c) assist MCM in planning,
designing and implementing projects to the specifications of the users
of MCM products; (d) render technical advice
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relating to computer equipment; and (e) negotiate and review
maintenance contracts, subject to final approval by MCM, verify
non-maintenance xxxxxxxx and otherwise interface with all
computer-related vendors and suppliers that have dealings with MCM,
including without limitation Wang, CDC, Telerate, Quotron, DEC, ADP and
AT&T.
III. SOFTWARE MAINTENANCE
KIS shall provide MCM the following maintenance services as to all
"Products" licensed to MCM pursuant to the Software License Agreement
of even date herewith between MCM and KIS (the "Software License
Agreement");
(a) KIS will supply to MCM updated Product(s) and the user
documentation therefor, and will supply to the Escrow Agent
pursuant to an Escrow Agreement by and among KIS, MCM, and the
Escrow Agent (the "Escrow Agreement") one copy, in magnetic
media, of the source code therefor (and, in printed form, the
applicable system documentation pertaining thereto) thirty
(30) days after any material revision or update, and in any
event no less frequently than once every six (6) months, to
operate with all KIS-approved current versions of the
operating system on which the Product(s) is being operated,
and will notify MCM in writing ninety (90) days prior to
removals of a version of a Product from current status. At the
end of the ninety (90) day period, KIS shall have no
maintenance responsibilities for Products no longer current
and replaced with updated Product(s).
(b) KIS will supply reasonable on site and telephone assistance to
MCM to aid MCM in its use of the Product(s).
(c) KIS will exert its best efforts to correct a programming error
in any Product within a reasonable time, provided that MCM
notifies KIS of the error in person, by telephone or by mail
and provides sufficient information to identify the problem.
Such information shall include without limitation error and
diagnostic messages, operator console information, data file
dumps, and other written explanation and documentation of the
problem.
IV. SOFTWARE CONVERSION
At MCM's option, to be exercised by written work order from MCM to KIS,
KIS will convert its KISNET-C and KISNET-D Software Systems to operate
on the VAX or Sun platform. If MCM exercises this option, the systems
as converted shall become part of the "Products" licensed to MCM
pursuant to the Software License Agreement and KIS will supply updates
to said Products
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to MCM as available and will supply to the Escrow Agent pursuant to the
Escrow Agreement one copy, in magnetic media, of the source code
therefor no less frequently than once every three (3) months during the
conversion process and thirty (30) days after the date of each material
update, and in any event no less frequently than once every six (6)
months thereafter.
V. DISASTER RECOVERY PLAN
KIS shall cooperate with and assist MCM in the development and
implementation, at MCM's expense and within three (3) months following
MCM's relocation to new office space, of a disaster recovery plan
acceptable to MCM which provides for back-up recovery system located
outside of New York City for all critical hardware, software, and data
utilized by MCM in conducting its day-to-day operations.
All of the above services shall be performed in accordance with the standards
set forth on Exhibit X.
-00-
00
XXXXXXXX X-0
AUTOMATIC PROCESSES
- European Monetary System (EMS) page (23305) updated every 4 to 5
minutes - Midnight until Noon New York Time
- YieldWatch (YW) page (7876) updated every 5 to 10 minutes - 3:00 a.m.
until 10:30 a.m. New York Time (upon request)
- Automatic scrolling of page 7901-7905 xxx xxxx 00000
- XxxxxXxxxx (XX) + page 7911
- CurrencyWatch (KW) Scrolling Page 23290-23291
- YW Scrolling Page 7871; 7873-7874
- KW: Read and store page 23301
- Capture and store MoneyWatch commentary
- MW + auto update of page 9658
- Closing price update of page 7876
- Building page 5 from historic data daily
- Continuous update of Telerate pages (Cache file) for Wang users,
particularly pages 5, 17520, 4046, and 4002
- Telerate Digital Page Feed (TDPF) under installation
- Xxxxxx-Xxxxxx Datafeed (under testing)
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EXHIBIT B
LEVEL OF SERVICE REQUIREMENTS
XxXxxxxx, Xxxxxxxx & Xxxxxx, Inc. ("MCM")
and Key Information Systems, Inc. ("KIS")
I. PURPOSE
These Level of Services Requirements establish the performance targets,
measurement criteria, and correction process in support of the MCM
requirements for the performance of the Products as well as the Data
Center and user support contractually provided by KIS. Any additional
requirements must be renegotiated.
II. LEVEL OF SERVICE CHANGE PROCEDURE
Should any significant, unexpected change(s) in capacity or workload
requirements occur, actions will be initiated to renegotiate all or
part of this document. Additionally, for significant and unique system
enhancements requested by MCM, a formal work order explanation and
approval process will be imposed.
III. PERFORMANCE TARGETS
The targets specified in these Level of Service Requirements represent
the support levels needed to meet the requirements of the MCM's
business. Meeting these requirements is the responsibility of KIS (but
can only be fully met with active participation from the user
community).
IV. PERFORMANCE MONITORING/REPORTING
- Performance results will be reported monthly in writing by KIS
to the President of MCM.
- Performance will be discussed at a review meeting held by MCM
and investigation and correction, when necessary, will be
addressed by the responsible organization. These meetings will
occur at least quarterly.
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V. AVAILABILITY
- Within the personnel limitations set forth below, KIS will use
its best efforts keep the system available twenty-four
hours/day, seven days/week.
- Availability refers to the scheduled availability of all
functionality provided by KIS personnel and Products and is
the total time the system is available for access and use by
customers.
- Response time will not exceed durations reasonably acceptable
to MCM for all functionality provided by KISNET 2000 and
system support provided by KIS.
- For situations where the system will be down due to planned
events (eg. auto gens, PMs, scheduled power outages,
software/hardware upgrades, etc.), MCM must approve and MCM's
customers must be notified of such shutdown at least two
business days in advance. This will take place via written
notification to MCM and its users and written approval by MCM.
- KIS is responsible to ensure that all data is regularly and
frequently (minimally - daily) backed up and that recovery
data is safely secured at an offsite location bi-weekly.
VI. SUPPLIER LEVEL OF SERVICE - DETAIL REQUIREMENTS
COMPUTER OPERATIONS SUPPORT
- Operator(s) will be on-site as specified in Section 4 of this
Service Agreement.
- Telephone support will be available from 6:00 p.m. Sunday, New
York time to 6:00 p.m. Friday, New York time and a phone list
published and maintained by KIS for all users. For holiday
coverage the MCM International holiday schedule will be
adhered to as it relates to outages, system availability and
operator coverage. If schedule changes are required by the
customer, they must be processed through the President of MCM
to the President of KIS.
- Notification to customer of batch processing problems will be
performed in a timely manner.
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- Hardware and software problems will be reported by users to
the Help Desk for prompt resolution and notification.
DATA NETWORK SUPPORT
- KIS Data Network will provide end-to-end problem diagnostics
and determination. KIS will be responsible for procurement and
project management of data communications equipment
installation. Additionally, KIS is responsible for network
design, optimization, network management, and supply/demand
forecasting and planning as well as vendor management. KIS
will assist with problem resolution of DTE (data terminal
equipment, ie. CRTs, printers, etc.) and will assist with
problem diagnosis and procurement of cable installation.
CUSTOMER SUPPORT CENTER
- The KIS Help Desk provides a single point of contact for
hardware and telecommunications problems. There may be
problems reported to the Help Desk that are application in
nature. If this is the case, the Help Desk personnel will
refer the call to the appropriate system support personnel and
report periodic status to the user until the problem report is
closed.
- All users will be notified in the event of system
unavailability via telephone broadcast.
TECHNICAL SUPPORT
- Software
Select, procure, configure, QA, install, maintain and support
all software including operating systems, utilities and data
base software selected for use in the Wang, PC, and, at MCM's
option, any new environment for which the software is
converted.
- Software Updates
Make software changes to supported software as required due to
software or hardware changes or for performance reasons. This
applies to software repairs and new software releases. The
target will be 15 ays after receiving the request for
implementation of non-critical software upgrades and 5 days
for software that solves production bugs.
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- System Access Control
Select, implement and support any and all tools required for
system access and security control for Data Processing.
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EXHIBIT C
XxXxxxxx, Xxxxxxxx & Xxxxxx, Inc. ("MCM")/Key Information Systems ("KIS")
MCM/KIS
SYSTEM WORK ORDER
Work Order Name: _______________________________________________________________
User(s): _______________________________________________________________________
Work for hire (MCM Proprietary):
[ ] Yes [ ] No
WORK ORDER DESCRIPTION
Priority: [ ] Low [ ] Medium [ ] High Due By ______________
Date
Work Order Description: ________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
__________________________________________________ _________________
Requested By Date
Work Order Estimates: Work Order Number ____________
HOURS PERSONNEL COSTS OTHER COSTS TOTAL COST KIS PERSONNEL INVOLVED
----- --------------- ----------- ---------- ----------------------
_____ _______________ ___________ __________ _______________________
_______________________
_______________________
_______________________________________ _______________________________
Proposed Start Date Proposed Completion Date
Impact to Other Activities _____________________________________________________
Dependencies ___________________________________________________________________
All work to be performed pursuant to and in accordance with the Service
Agreement dated as of ____________ by and between MCM and KIS
Submitted by: __________________________________ Date:____________
President, Key Information Systems
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WORK ORDER APPROVAL SIGNOFF
Approved for Development: __________________ ___________
Requestor Date
__________________ ___________
President, MCM Date
Accepted and Approved for Payment: __________________ ___________
Requestor Date
__________________ ___________
President of MCM Date
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EXHIBIT D
FEE SCHEDULE
SERVICE SEMI-MONTHLY FEE
------- ----------------
Management $2,000
Operations/Shift Technicians $5,750
Consulting $5,752
Software Maintenance KISNET-C $1,876
KISNET-D $300 plus $32 per workstation*
Accounting Software $500
TOTAL $16,690*
*Assumes 16 workstation for KISNET D. Fee will vary based on the number of
workstations.
ONE-TIME FEES
-------------
Conversion of KISNET-C to alternate platform $150,000**
Conversion of KISNET-D to alternate platform $120,000**
**Maximum fee, estimated on the basis of project man-hours. Fee may be lower.
These fees shall be due and payable on a semi-monthly basis, and shall be paid
on the fifteenth and last day of each month. If any such day is not a business
day, payment shall be made on the next consecutive business day.
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EXHIBIT E
Personnel Resources
FUNCTION AVAILABILITY CHARGE FOR ADDITIONAL HOURS
-------- ------------ ---------------------------
Xxxxxx Xxxx,
Senior Manager/Director 30 hours/week $125/hour
1 Telecommunications/
PC Specialist 30 hours/week $55/hour
1 Night Operator/Programmer 5 work days/week* $40/hour
1 Senior Operator 30 hours/week $40/hour
*A "work day" shall consist of seven and one-half (7 1/2) hours (not including
lunch) within a twenty-four (24) consecutive hour period.
Optional Personnel
FUNCTION HOURLY CHARGE
-------- -------------
Senior Consultant $100/hour
Senior Programmer/Analyst $75/hour
Staff Consultant $75/hour
Programmer/Analyst $55/hour
Shift Technician $30/hour
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EXHIBIT F-1
Schedule of MCM Hardware
TYPE/DESCRIPTION QUANTITY
---------------- --------
WANG
----
CPU VS 100 2
Disk Drives 8
Wang Workstation (incl. PCs with LOC CARDS) 20
Printers (Laser) 4
Printers (Band) 2
PCS
---
Single User PC 15
Xxxxxx Printers (shared between 20 PCs) 2
Printer Sharing device/Network 2
3RD PARTY
---------
Telerate ESIP lines (out) 6
with 6 dial backup lines
TDPF 1
Telerate Input line (in) 1
Telerate Controllers 8
Quotron (out) 1
Quotron (in) 2
Bloomberg (Being Installed) 2
FAX--Xxxxxx Boxes 1
FAX--(Xerox & Xxxxxx) 2
FAX BOX 2
Xxxxx Modem 3
(For Commerce Dept. Data for MW)
Remote - Connection 3
Xxxxxx-Xxxxxx (Outbound) 2
Xxxxxx-Xxxxxx (Inbound) 1
Xxxxxx-Xxxxxx Money Center 5
Xxxxxx-Xxxxx Profit Center 2
AT & T - NY-TEL
---------------
Leased lines 8
Dial-up lines 15
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EXHIBIT F-2
Schedule of KIS Hardware
QTY ITEM
EQUIPMENT
---------
1 486/33 w/8MB RAM SYS. with monitor and keyboard
1 386/SX w/8MB RAN SYS. with monitor and keyboard
1 386/SX w/8MB RAM SYS. with keyboard and monitor
1 386/DX w/8MB RAM SYS. with keyboard and monitor
1 486/33 w/ 16MB RAM with Novell Network and Server with monitor and
keyboard
1 NEC Laserjet Printer model 95
1 Wang VS 5000 system 53T50v-8B X00, 0XX 146MB, Tape
1 Wang VS 65 system 2MB with data storage cabinet 147MB Fixed and 75
MB removable
1 WP Scanjet IIP
DISK PACKS
----------
14 Disk Packs-75 megabytes
10 Disk Packs-288 megabytes removable
FURNITURE
---------
1 Mahogany Desk
1 Mahogany table
3 Chairs
3 Swivel chairs (green leather)
1 Mahogany credenza
KIS Telephones
KIS business records & supplies
1 Refrigerator
1 Small microwave
1 Water heating device
Tools
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EXHIBIT G
CONFIDENTIALITY AGREEMENT
WHEREAS, the undersigned, ,
("Provider"), is being engaged by Key Information Systems, Inc. ("KIS") to
perform certain services for XxXxxxxx, Xxxxxxxx & Xxxxxx, Inc. ("MCM"), and
WHEREAS, Provider may, in the course of performing services for MCM,
gain access to certain Confidential Information (as hereinafter defined) of MCM,
which information constitutes a valuable business property right of MCM;
NOW, THEREFORE, Provider hereby covenants to MCM and KIS as follows:
1. Provider agrees that it will hold all of MCM's customer lists, data,
business methods and information, programs and software, and trade
secrets (collectively the "Confidential Information") to which Provider
may gain access as a result of performing services to MCM in strictest
confidence, that it will neither use nor disclose the Confidential
Information to anyone without the explicit written permission of MCM,
and that it will take precautions commensurate with the highest
reasonable standards of industrial security to protect the security and
confidentiality of the Confidential Information.
2. All Confidential Information provided by MCM or by KIS to Provider, or
copies thereof, shall be returned to the party providing same within
thirty (30) days after the completion of services to MCM by Provider,
or sooner if requested or if no longer required for the performance of
Provider's services.
3. Provider acknowledges that monetary damages would not be a sufficient
remedy for any breach of this agreement and that, in addition to all
other remedies, specific performance and injunctive or other equitable
relief shall be available to MCM or KIS as a remedy for any such
breach.
4. This agreement shall be governed by and construed in accordance with
the laws of the State of New York without regard to the choice of law
rules thereof.
______________________________________
Date: _________________________ By: __________________________________
Its: _________________________________
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EXHIBIT H
SCHEDULE OF KIS COMPETITORS
The following companies are KIS' direct competitors (locations are supplied as
an aid in identifying the companies only, treatment of each entity spans all of
its locations):
FD CONSULTING NEW YORK, NY
RAID SOFTWARE FORT XXX, NJ
SOFTWARE MATTERS UNITED KINGDOM
DEC SYBIO [COMPONENT OF DIGITAL EQUIPMENT CORP.]
SDS XXXX UNITED KINGDOM
MICROGNOSIS DANBURY, CT
UNILINK NEW YORK, NY
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