Computer Services Agreement - ARIS Corp. and Tosco Northwest Co.
COMPUTER SERVICES AGREEMENT
THIS AGREEMENT, made this 31st day of August, 1994, by and between ARIS
Corporation, who is an [blank line] corporation but, for purposes of
convenience only is hereinafter referred to as "Consultant," and Tosco
Northwest Company, its subsidiaries and affiliates, a division of Tosco
Corporation, a Nevada corporation with its principal office located at 72
Cummings Point Road, Stamford, CT 06902, hereinafter referred to as the
"Company".
W I T N E S S E T H
In consideration of the premises and covenants herein contained, the parties
hereto agree as follows:
1. The Consultant agrees to make available to the Company the services of
specific employee(s) of the Consultant (hereinafter called the "employee(s)")
as specified in the written purchase orders issued by the Company and accepted
in writing by the Consultant with reference to this Agreement (hereinafter
referred to as the "work").
2. Each purchase order hereunder shall refer to this agreement, shall be
governed by the terms and provisions hereof without regard to any of the terms
and provisions printed on the reverse side of such purchase order and shall
indicate the scope of and include any required data or specifications for the
work to be performed pursuant thereto. The Consultant shall not proceed with
any phase of any work prior to the receipt of a purchase order describing such
work and written acceptance of such purchase order. The Consultant shall not
accumulate charges, and the Company shall not be liable for payments, above the
amount specifically authorized by purchase orders issued hereunder. Upon mutual
written agreement, an alternate form may from time to time be substituted for
the purchase order subject to the same provisions as such purchase order.
3. The employee(s) requested by the Company shall perform the work as
specified by the Company, under the direction of the Company's Representative
in accordance with written standards and specifications supplied by the
Company; except that in the absence of any written standards or specifications,
any work performed shall be performed in accordance with Consultant's standards
and specifications.
4. It is understood that Consultant's obligations under this Agreement are
to provide the employee(s) in accordance with the terms hereof only, which
employee(s) shall perform the work required with good workmanship in the arts,
skill and trade consistent with generally accepted data processing procedures.
No increase or decrease in the scope of the work or any modification of the
specifications shall be made by the Company or the Consultant except by written
mutual agreement signed by both parties. Any inspection or approval by the
Company of any work done hereunder, or failure of the Company to so inspect or
approve, shall not be deemed an acceptance of defective work or relieve the
Consultant of its obligations and liabilities with respect to such work.
5. Consultant agrees that any data furnished by the Company and all
programs, tapes and specifications made in connection with the processing of
the Company data shall be treated and maintained by Consultant and its
employees as confidential information and Consultant will not disclose the same
to anyone unless Consultant has first received the Company's written consent,
except to the extent any information or data is now known to the general public
by acts not attributable to Consultant, or
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is made available to Consultant as a matter of right be any third party.
Consultant further agrees to advise any of its employees assigned to work
hereunder of the provisions of this paragraph and, at the request of Company, to
request such employees sign a statement acknowledging the provisions herein.
6. No publication or public announcement of this Agreement or of any result
of work performed hereunder shall be made by consultant except in accordance
with the Company's written consent and approval. Any and all information,
programs, tapes, specifications and documentation which is developed as a
result of the performance of the work hereunder or as a result of disclosure of
confidential information to Consultant and which is not published in the public
domain or otherwise generally and properly available to others shall be the
sole and exclusive property of the Company and Consultant shall make no
commercial use of such information or development except in the performance of
work hereunder without the Company's prior written consent.
7. Any and all inventions and/or improvements and/or discoveries and/or
studies, programs and other deliverable products whether patentable or not,
which the Consultant or any employee of the Consultant conceives and/or makes
in the course or performance of work under any purchase order hereunder or
within one (1) year after the completion of such work and (1) as a result of
the performance of such work, or (2) as the result of the knowledge obtained by
the Consultant or such employee of any technical information covered by the
confidentiality provisions of paragraphs 5 and 6 above, shall be the sole and
exclusive property of the Company, and the Consultant shall promptly disclose
and cause to be disclosed to the Company, all such inventions, improvements and
discoveries and at the election of the Company cause the execution and
assignment to the Company of patent applications and letters patent thereon. If
the Company elects not to cause to be filed a patent application and notifies
the Consultant in writing to that effect, the Consultant and/or its employee
shall be free at its own cost to file an application thereon, but the Company
and its licensees shall have the non-transferable, royalty-free, nonexclusive
licenses thereunder. Work produced under this Agreement shall be considered
"work for hire" as defined by copyright law, and for any work not so defined,
copyright is hereby transferred to Company. Consultant shall have the burden of
bringing to Company's attention, in writing, any portion or sub-routine of any
program that is developed under this Agreement that was in Consultant's
possession prior to the date of this Agreement. If such notice is not received
by Company, it is agreed by Consultant that the entire program is "developed"
under this agreement. For those items so identified, Consultant agrees that
Company has the unrestricted free right to use for whatever purposes these
items.
8. The Company shall have access at all reasonable times to all work done and
product made by or for the Consultant hereunder and such work and product shall
be the times. The Consultant shall turn over to the Company all such work done
and product made upon request of the Company at any time during the progress of
the work or at the expiration or termination of the work to be performed under
any purchase order hereunder.
9. The Consultant shall perform all of the work specified in any purchase
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order hereunder as an independent contractor, and nothing contained in this
Agreement shall be deemed to constitute the Consultant and/or its employees as
the agents or representatives of the Company for any purpose whatsoever. The
Consultant shall have no authority to incur any obligations, contractual or
otherwise, in the name of the Company or on behalf of or for the account of the
Company. Consultant shall not subcontract any portion of the work without first
obtaining the written approval of the Company. Only full time employees of
Consultant may be assigned to the work unless prior written consent has been
assigned to perform work under a purchase order, such employees shall not be
replaced except in accordance with Paragraph 13.c or due to causes beyond the
reasonable control of Consultant. The Consultant agrees to maintain Worker's
Compensation or Employer's Liability Insurance sufficient to comply with all
applicable provisions of the Worker's Compensation laws of the state or states
where the work, or any portion thereof, is performed and will supply Company
with an insurance certificate verifying the coverage upon execution of this
Agreement.
10. The Consultant agrees to indemnify and save the Company harmless from
and against any and all loss, cost, damage, expense or liability which the
Company may suffer or sustain or be liable for, and from and against any and
all claims, demands, and suits for injury to or death of any person, including
employees of the Company and the Consultant, and for damage, destruction and
loss of use of property, including property of the Company and Consultant,
caused or alleged to have been caused, directly or indirectly, by any and all
acts or omissions of the Consultant, its employees, arising out of or connected
with the work performed under any purchase order hereunder, and the Consultant
shall defend any such claims or suit asserted against the Company at the
Consultant's sole expense, provided that the Company shall have the right, at
its option and at its own expense, to participate in the defense of such claim
or suit and to employ counsel of its own choosing for such purpose. The
foregoing indemnity shall apply only to acts or omissions of the Consultant
during the actual period of performance of work upon the Company's property.
11. During the term of this Agreement, Consultant will carry Workers'
Compensation insurance in compliance with all State and Federal laws. If any
of the work to be performed under any purchase order hereunder requires the
Consultant and/or its employees to enter upon any property of the Company, the
Consultant agrees that (a) it and its employees will comply with the applicable
safety rules and regulations of the particular location where the work is to be
performed, and the Company agrees that said safety rules and regulations shall
be made available to the Consultant before the commencement of performance of
any such work and (b) before entering upon such property, it will maintain and
keep in force during the performance of the work Comprehensive General
Liability, including Contractual Liability coverage and Automobile Liability,
on all owned, non-owned or hired vehicles, in amounts as specified on the
subject purchase order, or in the absence of any amounts on the purchase order
of at least $100,000 for injuries to each person, and $300,000 for each
occurrence, and $100,000 for property damage. Such insurance shall contain
endorsements waiving
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the insurer's rights of subrogation against Company and shall name the company
as an additional insured. Consultant shall furnish Company insurance
certificates certifying that insurance coverages specified herein are in force
and that Company will be given thirty (30) days written notice prior to any
cancellation or material change.
12. All materials, supplies, facilities and services required by the
employee(s) to perform the work assigned by the Company's Representative shall
be provided at the Company's sole expense. On completion of work performed
hereunder, the employee(s) shall return all remaining materials and supplies to
Company in the same condition as when received, ordinary usage wear and tear
excepted.
13. The employee(s) provided by Consultant to the Company under this
Agreement shall be subject to the following:
a) Employees shall work forty hours per week (based on an eight hour day of
five working days per week) unless overtime work is authorized by the Company's
Representative in writing. For the purpose of computing the hours worked, any
travel time by employee(s) shall not be considered as time worked. In addition,
the Company shall be credited with any absence due to recall by Consultant,
holidays, sick leave, or other absence whether authorized or otherwise.
b) A working day shall be considered Monday through Friday between the hours
of 7:30 A.M. to 4:00 P.M. exclusive of Company's recognized holidays unless
other hours are mutually agreed to.
c) In the event the Company is dissatisfied with the work of any
employee(s), the Company shall have the right, upon written notice first given,
to have such employee(s) replaced; upon receipt of such written notice,
Consultant will withdraw such employee(s) from the work and replace the same
with like employee(s) acceptable to the Company within seven (7) days. If the
Consultant is unable to supply replacement within seven (7) days, the Company
will then be free to select a replacement from any other source deemed
appropriate by the Company.
d) The employee(s) will complete a time card or such accounting forms as may
be requested by the Company to enable the Company to reconcile the number of
hours the employee(s) is engaged in the work hereunder.
e) The Company agrees to pay to Consultant an hourly charge for the
employee(s) as specified in the purchase order. In the event overtime work is
authorized by the Company Representative, the hours will be chargeable at the
same rate as regular hours. In no event will overtime be chargeable if the
employee(s) does not receive overtime compensation at a rate of at least his
normal rate. On request, Consultant will provide Company with information on
the employee(s) regular and overtime rates.
f) Consultant shall correctly invoice the Company for any charges incurred
hereunder on a monthly basis. A correct invoice is one that references the
correct purchase order number, is correctly addressed per the instructions on
such purchase order, shows correct pricing, extensions, and/or discounts, has
signed time sheets attached as requested by Company, and any other supporting
documentation necessary to explain the charges. Such invoices shall be due and
payable within thirty (30) days after receipt.
g) Reimbursable Costs:
In the event the Company requires Consultant's employee(s) to travel
outside the metropolitan area where the services are being performed,
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Consultant shall be reimbursed for its actual cost incurred subsequent to the
effective date of purchase order and paid by Consultant for the items listed
below. Said costs shall exclude all profits to Consultant and are reimbursed
only if directly related to and required for performance of Services and
approved in advance in writing by Company.
g.1) Rail, tourist air travel, rental car, and long distance telephone calls
shall be billed at actual cost to and paid by Consultant. All travel and car
rentals shall be subject to the prior written approval by Company.
g.2) Reasonable living expenses while performing Services requiring travel
shall be billed at actual cost paid by and reimbursed to Consultant's employee
by Consultant. Liquor and entertainment expenses are specifically disallowed.
Meals and/or entertainment for Company personnel are specifically disallowed.
g.3) Reasonable costs for lodging shall be limited to a single person
standard room rate. In locations where Company obtains special rates,
reservations should be made in accordance with Company's guidelines. Company
will assist in securing said rates by making lodging arrangements on request of
Consultant.
g.4) Receipts must be attached for any expenditure over $25.00 and for any
meals other than the
individuals who is requesting reimbursement. Insofar as practical, such
receipts shall be originals.
g.5) Personal expenditures such as newspaper, laundry, shoeshine and
sundries are not reimbursable expenses.
g.6) Costs associated with non-project personnel, e.g., spouses and
children, are not reimbursable expenses.
g.7) Neither the review, certification or approval, nor the payments by
Company of any invoice shall preclude the right of Company from thereafter
disputing any of the items involved. Company may withhold payment on matters
lacking proper support until such support is received. Disputed items will be
deducted from invoices by the Company and referred to Consultant for
clarification to avoid delay in payment of undisputed items.
14. The Company shall designate in each purchase order hereunder its
representative who shall have authority and responsibility to define and agree
upon the scope and specification of the work and the phases of the work to be
performed from time to time, to make changes in the specifications of the work,
to require and receive reports of the progress of the work, to give and receive
notices, to inspect the work and to terminate the performance of the work or
any phase thereof in accordance with the provisions of this Agreement.
15. The Company shall have the right to terminate this agreement without
charge, or any purchase order or orders, in whole or in part, and the work
being performed thereunder, with or without cause at any time by giving written
notice thereof to the Consultant. No such termination shall affect the rights
or obligations of either party hereto with respect to the work performed prior
to the termination, or the Company's obligation to pay in full all amounts due
to the Consultant by the Company for work performed prior to the termination in
accordance with this Agreement and/or any purchase order hereunder. Any
purchase order hereunder and any work being performed thereunder shall
automatically terminate,
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without necessity of notice if the Consultant shall make assignment for the
benefit of creditors or be adjudicated a bankrupt, or file a voluntary petition
in bankruptcy or in corporate reorganization, or if a receiver shall be
appointed for any of its assets. Termination of any purchase order hereunder or
any work being performed thereunder shall not terminate the Consultant's
obligations under paragraphs 3, 5, 6, 7, 9, 10, and 11 above or release either
party from any consequence of a breech by it or any of its obligation under this
Agreement which shall have occurred prior to such termination. The Consultant
shall have the right to terminate this Agreement without charge by giving a
sixty (60) day written notice thereof to the Company, such termination to be
effective only upon the completion of all work to be performed under purchase
order or orders then existing hereunder.
16. During the performance of all the work herein provided for, the
Consultant at all times shall comply with any and all laws and any and all
rules, regulations and orders of public authority applicable thereto, whether
federal, state, or local, including but not limited to federal and state social
security laws. Consultant shall file all reports required to be filed in the
name of Consultant and pay all taxes, fees and charged required by such laws,
rules, regulations, and orders, and shall without reimbursement by Company,
indemnify Company against any and all liabilities and penalties by reason of
any failure on the part of the Consultant to comply with any such laws, orders,
rules, and regulations.
17. This Agreement constitutes the entire agreement between the parties
hereto with respect to the subject matter hereof, and there are not other
agreements or understandings, written or oral, between the parties relating to
the subject matter of this Agreement and that this Agreement may be amended or
modified only by written agreement between the parties signed below or their
designees; provided, that all terms and conditions additional to those
contained herein may be expressly set forth in any purchase order issued and
accepted hereunder.
18. This Agreement or any obligations thereunder cannot be assigned without
the prior written consent of the other party, which consent shall not be
unreasonably withheld.
19. Consultant agrees to fully comply with all provisions of Executive Order
11246 (non-Segregated facilities). Executive orders 11246 and 11375 (Equal
Opportunity), Title 41 Section 60-1.7 of the code of Federal Regulations (41
CFR 60-1.7) et seq. (Employer Information Report), 41 CFR 60-1.40 et seq.
(Affirmative Action), 41 CFR 60-250.4 et seq. (Disabled and Vietnam Era
Veterans), and 41 CFR 60-741.4 et seq. (Handicapped Workers) are hereby
incorporated by reference and made a part of this Agreement.
20. The construction, validity and interpretation of this Agreement shall be
governed under the laws of the State of Washington.
21. If any provision of this Agreement is held by any Court to be invalid,
void or unenforceable, the remaining provisions shall never the less continue
in force.
IN WITNESS WHEREOF, the parties hereto have caused these presents to be
executed the day and year first above written,
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TOSCO NORTHWEST COMPANY CONSULTANT
/s/ Karen E. Beebe /s/ John Young Song
Procurement Associate Director, Business Development
8/31/94
ARIS Corporation Professional Services Agreement
This Professional Services Agreement (the "Agreement") is between ARIS
Corporation ("ARIS") and Tosco Northwest Company ("Client").
1. Services
ARIS Corporation will provide to Client the Services specified on a standard
ARIS Work Order or Client Purchase Order, under the terms of this Agreement.
Each Work Order or Purchase Order shall specify the Services and applicable
fees, and will be governed by the terms of this Agreement.
2. Fees for Services
Unless otherwise specified in the applicable Work Order or Purchase Order,
Services shall be provided to Client on a time and material basis ("T&M").
Rates must be specified on the attached Rate Structure or on a standard Work
Order. If a dollar limit is stated in the applicable Work Order or Purchase
Order, the limit shall be deemed an estimate for Client's budgeting and ARIS'
resource scheduling purposes; after the limit is expended, ARIS will continue
to provide the Services on a T&M basis if a Work Order or Purchase Order for
continuation of the Services is signed by the parties.
3. Incidental Expenses
Unless otherwise stated in the Work Order, Client shall reimburse ARIS for
reasonable travel, communications, and out-of-pocket expenses incurred in
conjunction with the services. There shall be a 10 percent surcharge for
administrative and tax costs.
4. Invoicing and Payment
ARIS shall invoice Client monthly, unless otherwise expressly specified in a
Work Order or Purchase Order. Charges shall be payable thirty (30) days from
the date of invoice and shall be deemed overdue if they remain unpaid
thereafter.
5. Taxes
The charges do not include taxes. If ARIS is required to pay any federal,
state, or local taxes based on the Services provided under this Agreement, the
taxes shall be billed and paid by Client; this shall not apply to taxes based
on ARIS' income.
6. Term
This Agreement shall commence on its Effective Date. Either party may
terminate this Agreement at any time by providing the other party with written
notice. Any Work Order outstanding at the time of termination
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shall continue to be governed by this Agreement as if it had not been
terminated.
7. Warranty
ARIS warrants that the Services will be performed consistent with generally
accepted industry standards.
8. Limitations on Warranty
Client must report any deficiencies in the services to ARIS in writing
within thirty (30) days of completion of the services in order to receive
warranty remedies. The warranty herein is exclusive and in lieu of all other
warranties, whether express or implied, including the implied warranties of
merchantability and fitness for a particular purpose.
9. Exclusive Remedy
For any breach of the above warranty, Client's exclusive remedy, and ARIS'
entire liability, shall be the reperformance of the Services. If ARIS is
unable to reperform the Services as warranted, Client shall be entitled to
recover the fees paid to ARIS for the deficient services.
10. Relationship between the Parties
ARIS is an independent contractor; nothing in this Agreement shall be
construed to create a partnership, joint venture, or agency relationship
between the parties. Each party will be solely responsible for payment of all
compensation owed to its employees, as well as employment related taxes. Each
party will maintain appropriate worker's compensation for its employees as well
as general liability insurance.
11. Authority to Enter Into Agreement
Each party to this Agreement has the authority to enter into and form this
Agreement. The individuals signing the Agreement have the authority to act as
agents of their respective organizations. Each party acknowledges that they
have read this Agreement and will abide by it.
12. Force Majeure
Neither party will be considered to be in default of this agreement as a
result of events beyond their reasonable control. For purposes of this
Agreement, such acts shall include, but are not limited to, acts of God,
catastrophe, or other "force majeure" events beyond the parties' reasonable
control.
13. Assignment of Contract
The Client may not assign the Agreement or its responsibility for payments
to any organization, without written approval by ARIS. ARIS may not assign its
responsibilities for performance under the Agreement to any organization
without written approval of the Client.
14. Hold Harmless; Indemnity
ARIS asserts it possesses all the rights and interests in the licensed
software necessary to enter into this agreement, and shall indemnify and hold
Client, its agents and employees harmless from any loss, damage or liability
for infringement of any United States patent right or copyright
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with respect to the use of the licensed software; provided that ARIS is notified
in writing within ten calendar days of suit or claim against Client, that Client
permits ARIS to defend, compromise or settle said claim of infringement and give
Vendor all available information, assistance and authority to enable ARIS to do
so, provided Client fully observes all terms and conditions of this Agreement.
Client asserts it possesses all the rights and interests in the licensed
software necessary to enter into this Agreement, and shall indemnify and hold
ARIS, its agents and employees harmless from any loss, damage or liability for
infringement of any United States patent right or copyright with respect to the
use of the licensed software; provided that Client is notified in writing
within ten calendar days of suit or claim against ARIS, that ARIS permits
Client to defend, compromise or settle said claim of infringement and give
Client all available information, assistance and authority to enable Client to
do so, provided ARIS fully observes all terms and conditions of this Agreement.
15. Confidentiality and Non-Disclosure Except as legally required, the parties
agree that neither party shall directly or indirectly disclose or use any
Confidential Information without prior written permission from the other party.
"Confidential Information" means any type of confidential or proprietary
information or material disclosed to or known by the recipient of such
information ("Recipient") as a consequence of or through its relationship with
the party disclosing such information, and consisting of information conceived,
originated, discovered, or developed in whole or in part by Recipient, which is
not generally known by non-Subject Party personnel, including but not limited
to information which relates to research, development, trade secrets, know-how,
inventions, technical data, hardware, software, source codes, object codes,
manufacture, purchasing, accounting, engineering, marketing, merchandising and
selling, business labs or strategies, and information entrusted by third
parties to the party disclosing such information.
16. Nonsolicitation of Employees
During the period that this Agreement is in effect and for a period of six
(6) months after termination or expiration thereof, each party agrees not to
solicit for employment any technical or professional employees of the other
party assigned to work on the Project without the prior written approval of the
other party. The parties further agree to include the provision in any
resultant contract or subcontract.
17. Insurance and Risk of Loss
The Client bears all responsibility for damages to their equipment and
facilities.
ARIS will hold Client harmless for any liability to ARIS employees who may
be injured while on Client's site, for whatever purpose.
18. Survival of Rights
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The rights and responsibilities of sections 14 and 15 shall survive the
termination of this Agreement.
19. Severability
All provisions of this Agreement are severable and no provision hereof shall
be affected by the invalidity of any other such provision.
20. Governing Law; Attorney's Fees; Venue
This Agreement shall be governed by and construed in accordance with the
laws of the state of Washington. In the event of a dispute over this
Agreement, the prevailing party shall recover its reasonable attorneys' fees
and costs from the breaching party. Venue shall be in King County, Washington.
21. Entire Agreement
This Agreement constitutes the complete agreement between the parties and
supersedes all previous and contemporaneous agreements, proposals, or
representations, written or oral, concerning the subject matter of this
Agreement. Neither this Agreement nor a Work Order or Purchase Order may be
modified or amended except in writing signed by a duly authorized
representative of each party: no other act, document, usage, or custom shall
be deemed to amend or modify this Agreement, a Work Order, or Purchase Order.
It is expressly agreed that any terms and conditions of Client's purchase order
shall be superseded by the terms and conditions of this Agreement and the
applicable Work Order.
The Effective Date of this Agreement shall be [blank line]
The following individuals, by signing, agree to enter into this Professional
Services Agreement and to be bound by its provisions.
ARIS Corporation Tosco Northwest Company
/s/ John Song /s/ Karen E. Beebe
Director, Business Development Procurement Associate
EXHIBIT A
Contractor Insurance Requirements
Type of Insurance: Workers Compensation Employer's Liability
Minimum Limits: Statutory; $500,000/occurrence
Special Provisions: (1) If coverage is provided by a State Fund or if
CONTRACTOR has qualified as a self-insurer, separate certification must be
furnished that coverage is in the State Fund or that CONTRACTOR has approval to
be a self-insurer. (2) Any policy of insurance must contain a provision or
endorsement providing that the insurer's rights of subrogation against OWNER
and its employees are waived. This provision shall not be applicable where
prohibited or limited by the laws of the jurisdiction in which the work is to
be performed.
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Type of Insurance: Comprehensive General Liability
Minimum Limits: $1,000,000 combined single limit each occurrence for
bodily injury and property damage; $1,000,000 combined single-limit---annual
aggregate for completed operations products.
Special Provisions: This insurance policy and any extensions or renewals
thereof must contain the following provisions or endorsements: (1) OWNER is an
additional insured thereunder as respects liability arising out of or from the
WORK performed by CONTRACTOR for OWNER; (2) The insurance coverage is primary
to any comparable liability insurances carried by OWNER.
Type of Insurance: Automobile Liability (Owned, Hired and Non-owned
Vehicles)
Minimum Limits: $1,000,000 combined single limit each occurrence for
bodily injury and property damage.
Special Provisions: This insurance policy and any extensions or renewals
thereof must contain the following provisions and endorsements: (1) OWNER is
an additional insured thereunder as respects liability arising out of or from
the work performed by CONTRACTOR for OWNER; (2) The insurance coverage is
primary to any comparable liability insurances carried by OWNER.
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