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C2i Solutions, Inc.
(a development stage company)
EXHIBIT 10.10
MASTER SERVICES AGREEMENT DATED FEBRUARY 3, 1998 BY AND BETWEEN
THE COMPANY AND UNITED GUARANTY CORPORATION
MASTER SERVICES AGREEMENT
THIS MASTER SERVICES AGREEMENT (the "Agreement") is made and entered
into as of this 3rd day of February, 1998 (the "Effective Date"), by and between
C2i Solutions Inc., a Delaware Corporation, with principal offices at 0000 Xxxxx
Xxxxx Xxxxx, Xxx Xxxxx, Xxxxxxxxxx 00000 ("C2i"), and, United Guaranty
Corporation, a North Carolina corporation, with principal offices at 000 X. Xxx
Xxxxxx, Xxxxxxxxxx, XX 00000-0000 ("Client").
BACKGROUND
Client wishes to engage C2i to provide certain professional services
as described in the Statement of Work. C2i agrees to provide such professional
services in accordance with the terms and conditions of this Agreement.
NOW THEREFORE, in consideration of the mutual promises and covenants
set forth herein, the parties agree as follows:
AGREEMENT
1. PERFORMANCE OF SERVICES. C2i agrees to use commercially
reasonable efforts to perform the services set forth in the initial Statement of
Work (the "Services") as set forth in Exhibit A (the "Statement of Work"). C2i
shall retain sole discretion as to the designation of personnel and resources to
perform the Services except as noted on the Statement of Work for Professional
Services dated the 3rd day of February, 1998. The Statement of Work shall not be
binding on either party until both parties have executed the Statement of Work.
In the event that any C2i personnel assigned to perform Services is moved by C2i
to another project, C2i shall assign replacement personnel with skill levels at
least comparable to the skill levels of the original personnel.
2. AGREEMENT ON ADDITIONAL SERVICES. Client may, from time to time,
request C2i to perform services outside the Statements of Work. If C2i is able
to perform such additional services the parties shall execute an additional
Statement of Work. Such additional Statement of Work shall be deemed a Statement
of Work for the purposes of this Agreement when executed by both parties and
shall be governed by the terms and conditions set forth in this Agreement. The
additional services set forth in such Statement of Work shall be "Services" for
the purpose of this Agreement. No Statement of Work shall be binding on either
party until both parties have executed the Statement of Work.
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C2i Solutions, Inc.
(a development stage company)
3. PRIORITY AMONG AGREEMENTS. In the event that the terms and
conditions in this Agreement and the terms and conditions in a Statement of Work
are contradictory or inconsistent then the terms and conditions set forth in
this Agreement shall govern the rights and obligations of the parties.
4. PROGRESS REPORTS. From time to time during the term of this
Agreement, C2i may submit to Client written progress reports summarizing C2i's
progress in performing the Services.
5. FEES. The fees for the Services will be set forth in the
Statement of Work. C2i shall invoice Client for Services rendered in a given
month at the end of such month for the applicable fees and expenses incurred
during such month. Client agrees to pay, in full, all such invoices thirty (30)
days from the date on the invoice. Interest shall accrue on all payments which
are more than thirty (30) days past due at a rate equal to the lesser of (i) one
and one half percent (1.5%) per month or (ii) the maximum monthly rate permitted
by law, compounded monthly. Client shall be responsible for all taxes based on
work performed or products delivered pursuant to this Agreement except for any
tax based on C2i's net income.
6. TRAVEL AND EXPENSES. Client agrees to reimburse C2i for all
expenses incurred by C2i in the performance of the Services when such Services
are to be performed at a site other than C2i's facilities, including without
limitation in-flight travel time of C2i personnel traveling to Client's
facility, at the applicable hourly rates of such C2i personnel. C2i will itemize
and invoice Client for such expenses and Client agrees to pay such invoices
within thirty (30) days of the date on the invoice. Such expenses may include
but are not limited to, airfare, lodging, rental car, mileage, parking, meals,
fax and telephone charges.
7. TERM AND TERMINATION.
7.1 Term. This Agreement shall commence on the Effective Date
and shall, unless earlier terminated as provided herein, continue in effect
until December 1, 1998. Either party may terminate this Agreement for
convenience, without cause, effective thirty (30) days after written notice to
the other party is delivered to such other party.
7.2 Termination for Cause. If either party is in material
breach of the terms of this Agreement, the non-breaching party may give written
notice of such breach to the breaching party and an opportunity to cure the
breach within fifteen (15) days. If such breach is not cured within such fifteen
(15) day period, the non-breaching party may immediately terminate this
Agreement by subsequent written notice to the party in breach.
7.3 Effect of Termination. Upon the expiration or termination
of this Agreement, (i) all amounts outstanding except any amounts in dispute
which Client owes to C2i shall be immediately due, (ii) each party shall
promptly return to the other party all Confidential Information held by it in
connection with the performance of this Agreement, and (iii) C2i shall be under
no further obligation to complete work pursuant to a Statement of Work. Upon
reslution of the dispute, any outstanding amounts shall become due and payable
to C2i.
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C2i Solutions, Inc.
(a development stage company)
7.4 Survival. The provisions of Sections 3 ("Priority Among
Agreements"), 7 ("Term and Termination"), 8 ("Confidentiality and
Non-Disclosure"), 9 ("Non-Circumvention and No Solicitation of Employees", 00
("Xx Xxxxxxxx"), 11 ("Limitation of Liability"), 12 ("Indemnification") and 13
("Miscellaneous") shall survive the expiration or termination of this Agreement
8. CONFIDENTIALITY AND NON-DISCLOSURE.
8.1 Confidential Information. Each party (the "Receiving
Party", as applicable) agrees during the term of this Agreement and thereafter
to take all steps reasonably necessary to hold the Confidential Information of
the other party (the "Disclosing Party", as applicable) in confidence.
"Confidential Information" includes, but is not limited to, technical and
business information relating to the Disclosing Party's inventions or products,
research and development, production, manufacturing and engineering processes or
other processes or techniques, software programs or other tools specification,
costs, profit or margin information, and salaries, finances, customers,
suppliers, marketing, and production and future business plans, and any third
party's proprietary or confidential information disclosed to the Receiving Party
in the course of providing Services to the Disclosing Party. Notwithstanding the
other provisions of this Agreement, nothing received by the Receiving Party will
be considered to be the Disclosing Party's Confidential Information if (1) it
has been published or is otherwise readily available to the public other than by
a breach of this Agreement; (2) it has been rightfully received by the Receiving
Party from a third party without confidential limitations; (3) it has been
independently developed for the Receiving Party by personnel or agents having no
access to the Disclosing Party's Confidential Information; or (4) it was known
to the Receiving Party prior to its first receipt from the Disclosing Party. The
Receiving Party shall use the Disclosing Party's Confidential Information only
for the purposes of providing and receiving Services to and from the Disclosing
Party as set forth herein, unless otherwise mutually agreed in writing. The
Receiving Party may disclose the Disclosing Party's Confidential Information to
affiliates and to third persons, including contractors, solely for the purposes
of this Agreement or as otherwise allowed herein, including consultation
regarding the purchase or provision of Services, but only under the terms of a
written confidentiality agreement with such third person containing
confidentiality and use terms substantially similar to those imposed herein upon
a Receiving Party. Neither party shall communicate any information to the other
party in violation of the proprietary rights of any third party. Notwithstanding
anything to the contrary in this Agreement, either party may disclose
Confidential Information as may be required by law or by regulatory or judicial
process, in which case the party making the disclosure shall notify the other
party of such disclosure.
8.2 Publicity. Except as may be required by applicable law or
regulation, each party shall (i) submit to the other party all advertising,
written sales promotional materials, press releases and other publicity matters
relating to this Agreement in which the other party's name is mentioned, and
(ii) not publish or use such advertising, sales promotional materials, press
releases or publicity matters without the other party's written consent. Such
consent shall not be unreasonably withheld. Client agrees to identify a Client
contact person who, upon reasonable written notice, will provide, at C2i's
request, references to third parties.
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C2i Solutions, Inc.
(a development stage company)
9. NON-CIRCUMVENTION AND NO SOLICITATION OF EMPLOYEES.
9.1 Non-Circumvention. Client acknowledges that information
relating to certain suppliers, contacts, certain intermediaries and associations
of C2i may become known to Client as a result of disclosure by C2i in the
performance of C2i's duties under this Agreement. Client further acknowledges
that C2i has a proprietary interest in such information, as well as the
exclusive claim to the benefit derived therefrom, including the opportunities,
information, and goodwill pertaining thereto. All such information shall be
Confidential Information of C2i and subject to the restrictions set forth in
Section 8 ("Confidentiality and Non-Disclosure"). Accordingly, Client shall
provide C2i with the full benefit of all work and contacts relevant to the
business of C2i throughout the term of this Agreement.
9.2 No Solicitation of Employees. Client agrees not to,
directly or indirectly through its agents, offer employment or contract work to
C2i personnel or subcontractors. In the event that Client wishes to offer
employment to a C2i employee or contract with a C2i subcontractor during such
period, Client shall notify C2i management. If C2i management agrees to permit
Client to make an offer to an employee or subcontractor, Client agrees that C2i
management shall deliver the offer of employment. If the employee or
subcontractor accepts the original offer or a subsequent offer from Client, C2i
shall be entitled to a placement fee from Client. Said placement fee shall be
the greater of (i) twenty percent (20%) of the annual compensation of the
prospective employee including salary, estimated commissions and bonuses, or
(ii) thirty percent (30%) of any contract for Services. The aforementioned
restrictions and covenants concerning C2i personnel and subcontractors shall
remain in full force and effect for each and every C2i employee or subcontractor
for a period of six (6) months after the later of (i) the contractor or employee
no longer under contract with or employed by C2i or (ii) the termination or
expiration of this Agreement.
10. NO WARRANTY. C2i PROVIDES THE SERVICES SET FORTH IN THE
STATEMENT OF WORK "AS IS." C2i DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, FOR
THE SERVICES PROVIDED HEREUNDER, INCLUDING ANY WARRANTY OF FITNESS FOR A
PARTICULAR PURPOSE, MERCHANTIBILITY OR NON-INFRINGEMENT OF THIRD PARTY RIGHTS.
11. LIMITATION OF LIABILITY.
11.1 Waiver of Consequential Damages. C2i SHALL NOT BE LIABLE
TO CLIENT OR ANY THIRD PARTY FOR ANY INDIRECT, PUNITIVE, INCIDENTAL, EXEMPLARY,
SPECIAL OR CONSEQUENTIAL DAMAGES HOWEVER CAUSED, WHETHER FOR BREACH OF CONTRACT,
TORT, NEGLIGENCE OR OTHERWISE, INCLUDING WITHOUT LIMITATION ANY LOSS OF INCOME,
PROFITS OR DATA, OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, EVEN IF C2i HAS
BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, ARISING OUT OF OR RELATED TO
THE PERFORMANCE OF SERVICES HEREUNDER. THIS LIMITATION SHALL APPLY
NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OFANY LIMITED REMEDY PROVIDED
HEREIN.
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C2i Solutions, Inc.
(a development stage company)
11.2 Limitation of Liability. NEITHER PARTY'S TOTAL LIABILITY
TO THE OTHER PARTY OR ANY THIRD PARTY HEREUNDER SHALL NOT EXCEED THE FEES PAID
TO C2i BY CLIENT UNDER THE STATEMENT OF WORK GIVING RISE TO SUCH LIABILITY.
12. INDEMNIFICATION. Client agrees to indemnify, defend and hold
C2i, its officers, directors, agents and employees harmless from and against any
and all liabilities, damages, losses, expenses, claims, demands, suits, fines,
penalties (whether civil or criminal) or judgments, including reasonable
attorneys' fees, costs and expenses incidental thereto which may be suffered by,
accrued against, charged to or recoverable from C2i, its officers, directors,
agents, or employees, arising out of or in connection with the performance by
C2i of its obligations under this Agreement, except to the extent that any such
loss, claim, damage or liability results from the gross negligence or bad faith
of C2i in performing the Services that are the subject of this Agreement
13. MISCELLANEOUS.
13.1 Force Majeure. In the event that either party is unable
to perform any of its obligations under this Agreement (except the obligation to
pay moneys due) or to enjoy any of its benefits because of (or if failure to
perform the Software development Services is caused by) natural disaster,
actions or decrees of governmental bodies or communication line failure or
similar cause beyond the reasonable control of a party (hereafter referred to as
a "Force Majeure Event") the party who has been so affected shall immediately
give notice to the other party and shall use commercially reasonable efforts to
resume performance. Upon receipt of such notice, all obligations (except the
obligation to pay moneys due) under this Agreement shall be immediately
suspended for the duration of the Force Majeure Event.
13.2 Attorneys' Fees. In the event that any action is brought
for any breach or default of any of the terms of this Agreement, or otherwise in
connection with this Agreement, the prevailing party shall be entitled to
recover from the other party all costs and expenses incurred in that action or
any appeal therefrom, including without limitation, all attorneys' fees and
costs actually incurred.
13.3 Notices. All notices, requests, demands, and other
communications under this Agreement shall be in writing and shall be deemed to
have been duly given on the date of service if mailed to the party below to whom
notice is to be given, by registered or certified mail, return receipt
requested, postage prepaid, and properly addressed to the party to whom notice
is to be given at the address of such party set forth in this Agreement or to
such other address as that party may designate by written notice as provided in
this paragraph.
C2i Solutions, Inc. United Guaranty Corporation
ATTN: Xxxxx X. Xxxxxxxx ATTN: H.G. (Xxxxx) Xxxxxxx, III
0000 Xxxxx Xxxxx Xxxxx 000 X. Xxx Xxxxxx
Xxx Xxxxx, XX 00000 Xxxxxxxxxx, XX 00000-0000
CC: Xxxxx X. Xxxxxxx, VP & CFO CC: Xxxxxxxx Xxxxx, Esq.
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C2i Solutions, Inc.
(a development stage company)
13.4 Assignment. Neither party shall sell, transfer or assign
any right or obligation hereunder without the prior written consent of the other
party. Any act in derogation of the foregoing shall be null and void.
13.5 Entire Agreement. This Agreement and all Exhibits
referred to herein embody the entire understanding of the parties with respect
to the subject matter hereof and shall supersede all previous communications,
representations or understandings, either oral or written, between the parties
relating to the subject matter hereof.
13.6 Settlement by Arbitration. Any dispute arising out of
this Agreement shall be resolved by binding arbitration in San Diego, California
under the rules of the American Arbitration Association ("AAA"). Three
arbitrators shall be selected according to AAA rules within thirty (30) days of
submission of the dispute to AAA. The arbitrator shall conduct the arbitration
in accordance with the California Evidence Code. Except as expressly provided
herein, no discovery of any kind shall be taken by either party without the
written consent of the other party, provided, however, that either party may
seek the arbitrators' permission to take any deposition which is necessary to
preserve the testimony of a witness who either is, or may become, outside the
subpoena power of the arbitrator or otherwise unavailable to testify at the
arbitration. The arbitrators shall have the power to enter any award that could
be entered by a Judge of the Superior Court of the State of California sitting
without a jury, and only such power, except that the arbitrators shall not have
the power to award punitive damages, treble damages, or any other damages which
are not compensatory, even if permitted under the laws of the State of
California or any other applicable law. The arbitrators shall award the
prevailing party its costs and its reasonable attorneys' fees, and the losing
party shall bear the entire cost of the arbitration, including the arbitrator's
fee. The arbitration award may be enforced in any court having jurisdiction over
the parties and the subject matter of the arbitration. Notwithstanding the
forgoing, the parties irrevocably submit to the non-exclusive jurisdiction of
the Superior Court of the State of California, San Diego County, and the United
States District Court for the Southern District of California, San Diego Branch,
in any action to enforce an arbitration award. In addition, the parties
irrevocably submit and consent to the exclusive jurisdiction of the Superior
Court of the State of California, San Diego County, and the United States
District Court for the Southern District of California, San Diego Branch for any
claim or dispute arising under this Agreement.
13.7 Governing Law. This Agreement shall be governed in all
respects by and construed in accordance with the laws of the State of California
as applied to agreements entered into and to be performed entirely within
California between California residents.
13.8 Construction. This Agreement has been negotiated by the
parties and their respective counsel. This Agreement will be fairly interpreted
in accordance with its terms and without any strict construction in favor of or
against any party. Any ambiguity will not be interpreted against the drafting
party.
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C2i Solutions, Inc.
(a development stage company)
13.9 Counterparts. This Agreement may be executed in
counterparts, all of which taken together shall constitute one single agreement
between the parties.
13.10 Headings. The section headings appearing in this
Agreement are inserted only as a matter of convenience and in no way define,
limit, construe or describe the scope or extent of such paragraph or in any way
affect such paragraph.
13.11 Independent Contractor. The relationship of the parties
established by this Agreement is that of independent contractors. Nothing
contained in this Agreement and no action by either party will be deemed to
constitute any party or any of such party's employees or agents to be an
employee or agent of the other party or will be deemed to create any
partnership, joint venture, association, syndicate among or between any of the
parties, or will be deemed to confer on any party any express or implied right,
power or authority to enter into any agreement or commitment, express or
implied, or to incur any obligation or liability on behalf of the other party.
C2i personnel shall not be entitled to benefits which Client may make available
to its employees. No part of C2i's compensation will be subject to withholding
by Client for any payroll related taxes.
13.12 No Waiver. No failure or delay on the part of either
party in exercising any right or remedy hereunder shall operate as a waiver
thereof; nor shall any single or partial exercise of any such right or remedy
preclude any other or further exercise thereof or of any other right or remedy.
No provision of this Agreement may be waived except in a writing signed by the
party granting such waiver.
13.13 Purchase Orders. The terms and conditions of this
Agreement shall apply to all orders submitted to C2i and supersede any different
or additional terms on purchase orders from Client which are hereby rejected by
C2i. All purchase orders for Services issued by Client to C2i shall be subject
to acceptance in writing by C2i at its principal place of business.
13.14 Severability. If any provision hereof or any part
thereof is declared or adjudged illegal, invalid, or unenforceable under
applicable law, such illegality, invalidity, or unenforceability will not
vitiate the remainder of this Agreement, and this Agreement will be construed as
if such illegal, invalid or unenforceable passages were omitted.
IN WITNESS WHEREOF, C2i and Client have caused this Agreement
to be executed, and the persons signing below warrant that they have been duly
authorized to sign for and on behalf of the respective parties.
C2i Solutions, Inc. Client
/S/ Xxxxx X. Xxxxxxxx 2/5/98 /S/ [Signature] 2/5/98
--------------------------------- ---------------------------------------
Signature Date Signature Date
Sr. Vice President Senior Vice President--CIO
--------------------------------- ---------------------------------------
Title Title
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C2i Solutions, Inc.
(a development stage company)
EXHIBIT A
Statement of Work
THIS STATEMENT OF WORK (the "Statement of Work") is made and entered
into as of this 3rd day of February, 1998 (the "Effective Date"), by and between
C2i Solutions Inc., a Delaware Corporation, with principal offices at 0000 Xxxxx
Xxxxx Xxxxx, Xxx Xxxxx, Xxxxxxxxxx 00000-0000 ("C2i"), and United Guaranty
Corporation, a North Carolina corporation, with principal offices at 000 X. Xxx
Xxxxxx, Xxxxxxxxxx, XX 00000-0000 ("Client").
BACKGROUND
Client wishes to engage C2i to provide certain professional services
as described in this Statement of Work. C2i agrees to provide such professional
services in accordance with the terms and conditions of the Master Services
Agreement executed by C2i and Client dated the 3rd day of February, 1998.
NOW, THEREFORE, in consideration of the mutual promises and
covenants set forth herein, the parties agree that C2i will provide the Services
as follows:
SCOPE:
This engagement is expected to require approximately 680 man-hours.
To accomplish the services listed below, it is expected to require one (1)
person for two (2) days once every two (2) weeks at Client's offices in
Greensboro, NC, through the end of September, 1998.
SERVICES:
1. Consult with the project management of the testing
process.
2. Recommend modifications to Client's Year 2000 strategy and plan
as needed.
SERVICE FEE SCHEDULE:
Consulting Services -- Time and Materials:
Executive Consultant - $195/hr. + travel time + expenses
The current C2i personnel assigned to this Statement of Work shall
not be replaced without the approval of Client except in the event that the
individual is unable to complete this project (i.e. due to termination of
employment, illness or death). Such approval shall not be unreasonably withheld.
Invoices will be issued to Client monthly based on expenses, and
time and materials expended during the month, or as services are completed,
whichever occurs first.
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C2i Solutions, Inc.
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GENERAL:
This Statement of Work shall be governed by the terms set forth in
that certain Master Services Agreement between the parties.
C2i Solutions, Inc. Client
/S/ Xxxxx X. Xxxxxxxx 2/5/98 /S/ [Signature] 2/5/98
--------------------------------- ---------------------------------------
Signature Date Signature Date
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