Technical Services Agreement - Unisys Corp. and Tier Corp.
TECHNICAL SERVICES AGREEMENT
TABLE OF CONTENTS
ARTICLE TITLE PAGE NO.
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I TERM OF AGREEMENT................................................ 1
II STATEMENT OF WORK................................................ 1
III PERFORMANCE OF WORK/RISK OF LOSS................................. 1
IV COMPENSATION/PAYMENT/TAXES....................................... 2
V RELATIONSHIP OF PARTIES.......................................... 4
VI INTELLECTUAL PROPERTY RIGHTS..................................... 5
VII PROPRIETARY INFORMATION.......................................... 7
VIII EXPORT CONTROL OF INFORMATION.................................... 9
IX PROPRIETARY RIGHT/TRADE SECRET INDEMNIFICATION................... 9
X NOTICE OF INFRINGEMENT........................................... 10
XI CONTRACTOR'S WARRANTIES AND REPRESENTATIONS...................... 10
XII SERVICES FOR OTHERS.............................................. 12
XIII INSURANCE........................................................ 12
XIV HOLD HARMLESS.................................................... 14
XV ADMINISTRATION................................................... 14
XVI NOTICES.......................................................... 15
XVII ASSIGNMENT....................................................... 15
XVIII TERMINATION/CANCELLATION......................................... 16
XIX LIMITATION OF LIABILITY.......................................... 17
XX ARBITRATION...................................................... 18
XXI PUBLICITY........................................................ 19
XXII WAIVERS.......................................................... 19
XXIII SEVERABILITY..................................................... 19
XXIV HEADINGS......................................................... 19
XXV GOVERNING LAW.................................................... 19
XXVI SURVIVAL OF PROVISIONS........................................... 20
XXVII ENTIRE AGREEMENT................................................. 20
XXVIII COMPLIANCE WITH LAW.............................................. 20
XXIX BUSINESS PRACTICE GUIDELINES..................................... 20
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TECHNICAL SERVICES AGREEMENT
ADDENDA
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A STATEMENT OF WORK
B CONTRACTOR'S PERSONNEL AND HOURLY RATES
C TRAVEL POLICY
D UNISYS CODE OF ETHICAL CONDUCT
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TECHNICAL SERVICES AGREEMENT
4OR81224
This Agreement, including all addenda referred to herein, is made and
entered into as of 30 October, 1995 (the "Effective Date") by and between Unisys
Corporation (hereinafter "Unisys"), which has a place of business at Township
Line and Union Meeting Roads, Blue Bell, Pennsylvania 19424, and Tier
Corporation (hereinafter "Contractor") which has a place of business at 1350
Treat Blvd., Suite 250, Walnut Creek, California 94596. The parties, intending
to be legally bound, hereby agree as follows:
ARTICLE I TERM OF AGREEMENT
The term of this Agreement shall begin on 30 October, 1995 (the Effective
Date) and end on 30 April, 1996, unless earlier terminated or canceled as
provided in Article XVIII.
ARTICLE II STATEMENT OF WORK
During the term of this Agreement Contractor shall perform the work
described in Addendum A (Statement of Work, hereinafter "Work"), of this
Agreement.
ARTICLE III PERFORMANCE OF WORK/RISK OF LOSS
A. PERFORMANCE OF WORK
1. The Work shall be performed by the key personnel listed on Addendum B
(Contractor's Personnel and Hourly Rates) at the hourly rates specified
therein. Personnel shall not be added to or removed from the Work by
Contractor without the prior written consent of Unisys. Unisys shall have
the right at any time to require that Contractor remove personnel which
Unisys no longer wants performing the Work.
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2. Contractor shall report to Frank Bradick of Unisys (hereinafter "Unisys
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Technical Administrator") on technical matters regarding the Work.
Progress meetings shall be conducted at times and places as requested by
Unisys to discuss the progress of the Work and other related matters.
Contractor shall provide a written report of such progress and other
matters at least forty-eight hours prior to the date of each meeting.
B. RISK OF LOSS
Contractor shall have the risk of loss, damage and destruction of all
Deliverables until received by Unisys.
ARTICLE IV COMPENSATION/PAYMENT/TAXES
A. COMPENSATION
1. The total compensation to Contractor for Work performed hereunder shall
not exceed Five Hundred Seventy Nine Thousand Six Hundred dollars
($579,600.00), plus any applicable sales and/or use tax as specified in
paragraph IV C below. Unisys shall have no obligation under any
circumstances to pay Contractor any money in excess of such amount unless
agreed to in writing by the Unisys Contract Administrator identified in
Article XV.
2. Unisys shall reimburse Contractor for reasonable travel and living
expenses consistent with the policies set forth in Addendum C (Travel
Policy), provided that Contractor has obtained advance written approval for
such travel from Unisys.
B. PAYMENT
1. Contractor shall promptly submit invoices in triplicate at the end of
each month for services rendered on an hourly basis during the month.
Contractor shall also submit
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invoices at the end of each month for authorized travel and living expenses
incurred during the month. Each invoice shall include the following
information:
(a) Unisys purchase order number related to this Agreement.
(b) Contractor's invoice number and date.
(c) Time period covered by the invoice.
(d) Amount billed for the services indicating, when applicable,
computation at the hourly rate for hours worked per day by
Contractor's Personnel.
(e) Travel and living expenses, if any, supported by receipts.
2. Unisys shall pay all invoiced amounts to Contractor within thirty (30)
days after receipt of invoice.
C. TAXES
1. In performing the Work as an independent contractor, Contractor shall
be responsible for the payment of all taxes based on Contractor's gross
income and/or net income. Such taxes may include, but are not limited to,
Federal, state and local income taxes, U.S. Social Security tax, Federal
and state unemployment taxes or any other similar taxes.
2. Contractor shall separately state and describe in reasonable detail on
Contractor's invoices any state and local sales tax or similar tax ("Sales
Tax") to which the amounts payable by Unisys for Contractor's performance
of the Work are subject. In the event that Contractor subsequently
determines that any invoiced Sales Tax was or is not actually required to
be paid by Unisys, Contractor shall promptly notify Unisys of such
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determination and shall promptly refund such Sales Tax payment to Unisys if
such payment has already been made by Unisys to Contractor.
3. If Contractor is a self-employed individual or a sole proprietor:
(a) Contractor shall complete and sign Form W-9 (Request for Taxpayer
Identification Number and Certification) and shall deliver such Form
W-9 to Unisys at the time this Agreement is executed.
(b) Unisys shall be required to furnish Form 1099-MISC (Statement for
Recipients of Miscellaneous Income) to Contractor and the Internal
Revenue Service in the event that the compensation (excluding any
authorized travel and living expense reimbursements) paid to such
Contractor for Work performed under this Agreement is $600.00 or more
during any calendar year.
ARTICLE V RELATIONSHIP OF PARTIES
In performing the Work, Contractor is acting as an independent contractor
and not as an employee, agent, or representative of Unisys. Contractor has no
authority to transact any business in the name of or on account of Unisys or
otherwise obligate Unisys in any manner. Contractor hereby acknowledges that
he/she is not entitled to any of the benefits provided by Unisys to its active
employees, including, but not limited to medical benefits, pension benefits and
group life insurance benefits.
ARTICLE VI INTELLECTUAL PROPERTY RIGHTS
A. Contractor agrees to and does hereby assign and grant to Unisys the entire
right, title and interest of Contractor in and to the Deliverables and any
other work product Contractor produces pursuant to this Agreement,
including, but not limited to, programs,
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documentation and reports produced in the course of or pursuant to
performance of the work done under this Agreement. Contractor agrees and
does hereby assign to Unisys the entire right, title and interest of
Contractor in and to all inventions, improvements and discoveries (whether
or not patentable) conceived or first actually reduced to practice in the
course of or pursuant to the performance of work done under this Agreement
and to all United States and Foreign Letters Patent granted thereon.
Contractor agrees to and does hereby grant to Unisys an unlimited, paid-up,
royalty-free, nonexclusive, irrevocable license with the right to
sublicense others directly or indirectly under all of Contractor's
inventions, improvements and discoveries incorporated by Contractor in the
Work or Deliverables, or necessary to utilize the Work or Deliverables
covered by this Agreement, regardless of when conceived or first reduced to
practice. Contractor represents to Unisys that it has no prior obligations
to grant rights to others (such as arising by contract or employment) which
may detract from or affect the grant to Unisys provided herein, except as
such are reduced to writing and attached to this Agreement as part hereof.
B. Contractor agrees to deliver to Unisys such duly executed instruments of
assignment, application papers, and rightful oaths as are necessary to vest
in Unisys or its designee, the sole and exclusive ownership of, and the
right to apply for and prosecute patent applications covering each such
invention, improvement or discovery. Contractor further agrees that it
will at all times at Unisys expense, aid Unisys or its designee in
preparing for and in giving information or testimony, or in doing any other
reasonable acts deemed necessary by Unisys in any and all proceedings
involved in the securing of any patent or
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patents for any such invention, improvement or discovery, or in enforcing
and defending any rights thereunder.
C. Contractor agrees to promptly make or have made a written disclosure to
Unisys of each invention, improvement or discovery covered by the
aforementioned assignment which reasonably appears to be patentable.
Contractor agrees that before final payment it will submit a final report
stating whether any such inventions, improvements or discoveries have been
made and providing the foregoing information with respect to those that
have not yet been reported.
D. Contractor agrees to and does hereby assign and grant to and vest in Unisys
the entire right, title and interest of Contractor to all copyrightable
material first produced or composed in the course of or pursuant to the
performance of work under this Agreement.
E. Contractor agrees to and does hereby grant to Unisys an unlimited, paid-up,
royalty-free, nonexclusive, irrevocable license with the right to
sublicense others directly or indirectly to reproduce, translate, publish,
use and dispose of, and to authorize others so to do, any and all of
Contractor's copyrighted or copyrightable material furnished as a result of
work performed under this Agreement but not first produced or composed by
Contractor in the performance of such work.
F. Contractor agrees that Contractor Personnel and all other parties engaged
in the performance of this Agreement shall be under obligation to assign
and grant to Unisys: (1) the entire right, title and interest in any
invention, improvement or discovery conceived or first actually reduced to
practice in the course of or pursuant to the performance of work done under
this Agreement, and (2) the entire right, title and interest
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in all copyrightable material first produced or composed in the course of
or pursuant to the performance of work under this Agreement.
ARTICLE VII PROPRIETARY INFORMATION
A. Proprietary Information shall include all business and technical
information relating to the Work which is furnished to Contractor by Unisys
and all other information which is either furnished by one party to the
other in tangible form marked as "restricted", "confidential",
"proprietary", or other appropriate legend, or disclosed by one party to
the other in non-tangible form with notice of its proprietary nature and
subsequently described in writing delivered to the receiving party within
fifteen (15) days after disclosure by the furnishing party.
B. The Work and Deliverables are deemed to be Proprietary Information of
Unisys as though it was Proprietary Information furnished by Unisys to
Contractor, and shall be so treated by Contractor.
C. Title, or the right to possess Proprietary Information, as between the
parties shall, except as otherwise provided herein, remain in the party
which furnishes it to the other party. No rights are granted by either
party to the other with respect to Proprietary Information except as
expressly stated herein. Neither party shall use or copy any Proprietary
Information of the other party except for the purposes of and to the extent
necessary for this Agreement. Each party shall exercise reasonable care
with respect to Proprietary Information of the other party to preclude
disclosure thereof to any third party and permit disclosure only to its
personnel who are involved in the Work and have agreed in writing to be
bound consistent with the provisions of this Agreement. Each party shall
have the
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obligations stated in this Article VII regarding Proprietary Information
both during and after the expiration, termination or cancellation of this
Agreement and shall be released from such obligations only as to
Proprietary Information:
(1) which is at any time in the public domain other than by a breach of
this Agreement on the part of the receiving party; or
(2) which is at any time rightfully received from a third party which has
the right and transmits it to the receiving party without any obligation of
confidentiality; or
(3) which is independently developed by personnel of the receiving party
who have not had access to Proprietary Information of the other party; or
(4) which is rightfully known to the receiving party without any limitation
on use or disclosure prior to receipt thereof from the furnishing party, as
substantiated by tangible evidence antedating disclosure by the furnishing
party to the receiving party.
D. Neither party is restricted from disclosing Proprietary Information of the
other party pursuant to a judicial or governmental order, but any such
disclosure shall be made only to the extent so ordered and provided only
that the party receiving an order: (a) timely notifies the other party so
that it may intervene in response to such order, or (b) if timely notice
cannot be given then seeks to obtain a protective order from the court or
government for such information.
E. Each party shall promptly cease using and shall return or destroy (and
certify destruction of) all Proprietary Information furnished by the other party
along with all copies thereof in its possession including copies stored in any
computer memory or storage medium upon the expiration, termination, or
cancellation of this Agreement, whichever first occurs; provided,
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however, that Unisys may retain copies of Contractor's materials for the purpose
of the license rights as set forth in Article VI hereof.
ARTICLE VIII EXPORT CONTROL OF INFORMATION
Contractor shall comply with applicable United States laws and regulations
which prohibit the export of technical data that originates in the United States
or any product directly based on such data without prior written authorization
as may be required from appropriate agencies of the United States. Such
compliance obligates Contractor not to export Unisys Proprietary Information or
make it available in the United States to aliens.
ARTICLE IX PROPRIETARY RIGHT/TRADE SECRET INDEMNIFICATION
Contractor agrees to indemnify and hold harmless Unisys, its licensees and
transferees against any claim based on infringement of a patent, copyright or
other proprietary right or improper use or misappropriation of a trade secret of
a third party occasioned by any use, sale, license, or reproduction of the work
product delivered by Contractor. Upon prompt notice to Contractor of such
claim; Contractor at its own expense, shall answer, defend or settle such claim
and pay any and all judgments, including an award of attorney fees, costs,
damages and expenses relating to such claim. It is agreed that Unisys may be
represented by counsel of its own choice at its own expense in any proceeding.
In the event Unisys or any of its licensees or transferees is enjoined from
using the Contractor work product, Contractor agrees to obtain for them the
right and license to use the Contractor work product or to modify the Contractor
work product to eliminate the grounds for such injunction.
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ARTICLE X NOTICE OF INFRINGEMENT
Contractor shall give Unisys prompt written notice of any claim by a third
party that work performed by Contractor under this Agreement infringes or
misappropriates intellectual property rights of the third party. In the event
of any such claim by a third party against Unisys alleging infringement or
misappropriation of intellectual property rights, Contractor shall cooperate
with Unisys in connection with Unisys defense thereof. Unisys shall have the
right at its expense to participate in the defense of any suit brought against
Contractor claiming infringement or misappropriation of intellectual property
rights based on or relating to the Work.
ARTICLE XI CONTRACTOR'S WARRANTIES AND REPRESENTATIONS
Contractor makes the following warranties to Unisys:
(1) Contractor has expertise in the field covered by this Agreement and
shall commit time and resources to attain the stated goal and complete the
Work.
(2) In performing the work Contractor shall not infringe any trade secret,
copyright or patent of a third party.
(3) Contractor shall not divulge or furnish to Unisys any trade secret or
other proprietary information of any third party which Contractor does not
have the right to divulge or furnish.
(4) Contractor has the power and right to grant Unisys the title and
license rights set forth in Article VI hereof.
(5) This Agreement is not in conflict with any other agreement or
obligation which Contractor has with any third party.
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B. Contractor represents that he or she has not been a full time or part time
employee of Unisys or any of its subsidiaries or affiliates at any time
within the twenty-four (24) months prior to the Effective Date. For
purposes of this paragraph B, "Contractor" includes an individual who is a
party to this Agreement, the proprietor of any sole proprietorship which is
a party to this Agreement, each of the partners of a partnership which is a
party to this Agreement, or any shareholder or officer of a closely held
corporation which is a party to this Agreement. Unisys may terminate this
Agreement immediately if the representation made in this paragraph is
untrue. Termination shall become effective immediately upon the date
notice is given by Unisys. Following such termination, Unisys shall have
no liability to contractor other than to compensate Contractor on the
agreed upon terms, prorated as may be necessary, through the date of
termination.
ARTICLE XII SERVICES FOR OTHERS
Contractor and its personnel assigned to perform Work shall not engage
directly or indirectly in any undertaking which creates any legal impediment to
or conflicts with rights granted to Unisys by Contractor under this Agreement.
Contractor shall not undertake, during the term of this Agreement, to perform
similar services for any third party which would compromise the value of the
Work or Deliverables to Unisys.
Contractor shall not perform services either directly or indirectly for any
customer or at any computer site if, with respect to the same customer or
computer site:
(1) it has made a proposal or quoted a price to Unisys to perform the same
work as a Unisys subcontractor, or
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(2) it is then performing services as a Unisys vendor or has performed
services as a Unisys vendor within the previous six (6) months.
While Contractor is engaged in the performance of any work for a Unisys
customer hereunder, Contractor shall not propose or negotiate terms to perform
any services directly for such customer without the prior written consent of the
Unisys Contract Administrator.
ARTICLE XIII INSURANCE
Contractor shall maintain worker's compensation and employer's liability
insurance upon its employees as required by law. Contractor further agree(s) to
maintain comprehensive liability insurance for all operations necessary and
incidental to the conduct of this Agreement and any purchase orders issued
pursuant to this Agreement including coverage of all automobile exposure, all
property liability exposure and contractual liability exposure to at least the
following minimum amounts.
A. Employers Liability Insurance with limit of $100,000;
B. Comprehensive Automobile Liability Insurance, with a combined single
limit of $1 million for bodily injury, death or property damage
arising from any one occurrence;
C. Comprehensive General Liability including Broad Form Contractual and
Completed Operations, with a combined single limit of $1 million for
bodily injury, death or property damage arising from any one
occurrence.
Such policies shall name Unisys as an additional insured and provide that
coverage may not be canceled without ten (10) days prior written notice to
Unisys. Such insurance shall not be
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deemed a limitation of any liability of the Contractor, but Contractor shall
furnish Unisys with certificates of insurance in form acceptable to Unisys.
Such insurance shall be primary, not contributing with, and not in excess
of, coverage which Unisys may carry. The insurance afforded by these policies
applies separately to each insured against whom claim is made or suit is
brought, in the same manner as such insured would be covered if the policy
insured only such party. The inclusion of such additional insured shall not
increase the policy limits.
Contractor shall furnish to Unisys Corporation certificates of insurance in
full prior to the furnishing of services under this Agreement.
ARTICLE XIV HOLD HARMLESS
Notwithstanding any of the insurance requirements hereinafter set forth or
limits of liability set forth therein, the Contractor shall indemnify and hold
harmless Unisys, any third party and their agents, servants, employees from and
against, all claims, damages, losses and expenses with respect to the death,
injury or disability of any persons and damage to or destruction of any property
(including loss of use), arising out of, resulting from or connected in any way
with the performance of this Agreement or the performance of purchase orders
issued pursuant to this Agreement by the Contractor or Contractor's employees or
his subcontractors, or their agents, servants and employees. At his expense,
the Contractor shall defend all suits or claims (whether or not false,
fraudulent or groundless) alleging such injury or damage and shall pay all
charges of attorneys, court costs, awards and all other costs and expenses in
connection therewith. This provision shall survive after the expiration or
termination of this Agreement and completion of any purchase orders released
against this agreement.
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ARTICLE XV ADMINISTRATION
A. Unisys Technical Administrator shall be the principal interface with
Contractor on technical matters and shall have authority to clarify,
explain and provide further details regarding Unisys expectations
concerning the Work, but shall have no authority to modify any provisions
of this Agreement including, without limitation, the compensation, scope of
work or any schedule therefor.
B. Unisys Contract Administrator ( D.G. Busza ) is Unisys authorized
representative for all other matters related to this Agreement including
modifications thereof.
ARTICLE XVI NOTICES
A. All notices and requests given by either party to the other shall be in
writing and sent by facsimile, telex or first class mail.
B. Notices and requests sent by Unisys shall be addressed to Contractor as
follows:
Tier Corporation
1350 Treat Blvd., Suite 250
Walnut Creek, CA 94596
C. Notices and requests sent by Contractor regarding technical aspects of the
Work shall be addressed to Unisys Technical Administrator as follows:
Unisys Corporation
Santa Ana, CA
Attn: Frank Bradick
D. Notices and requests sent by Contractor regarding matters other than
technical aspects of the Work including, without limitation, compensation,
insurance, and Contractor's personnel shall be addressed to Unisys Contract
Administrator as follows:
Unisys Corporation
Union Meeting and Jolly Roads
Blue Bell, PA 19424
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E. Contractor and Unisys shall each have the right to change at any time the
respective individuals to whom notices and requests shall be sent by giving
written notice of such change to the other party.
ARTICLE XVII ASSIGNMENT
Contractor shall not assign this Agreement or any rights hereunder or
delegate the Work or any of Contractor's other obligations hereunder to any
third party without prior written consent of Unisys and any assignment without
such consent shall be void. Any legal representative or successor in interest
of Contractor shall be bound by the provisions of Article VII of this Agreement
regarding Proprietary Information. Unisys shall have the right to assign this
Agreement and its rights and duties hereunder to any successor in interest by
acquisition, merger, operation of law or otherwise.
ARTICLE XVIII TERMINATION/CANCELLATION
A. TERMINATION FOR CONVENIENCE
Unisys shall have the right to terminate this Agreement or the Work to be
performed hereunder in whole or in part for its convenience at any time. Any
notice of termination given by Unisys shall be effective seven days after
transmittal by Unisys, and Contractor shall terminate the Work as quickly as
possible upon receiving notice. Unisys shall have no liability to Contractor
based on any such termination except to pay all amounts due Contractor up to the
date of termination in accordance with the compensation provisions of Articles
III and IV. Contractor shall promptly deliver to Unisys all Work Product,
whether or not completed, which is in Contractor's possession on the termination
date containing information related to the Work,
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including a final report to be prepared by Contractor describing results of the
Work up to the date of termination.
B. CANCELLATION FOR NON-PERFORMANCE
1. Unisys shall have the right to cancel this Agreement in the event of
any material breach by Contractor which Contractor fails to cure within
thirty days after written notice of breach from Unisys. Any such notice of
cancellation shall become effective, if Contractor fails to cure the
breach, on the thirtieth day after transmittal of the notice as provided in
Article XVI. Notice of cancellation rightfully given by Unisys for
material breach by Contractor which is not timely cured shall excuse Unisys
from paying for any Work performed by Contractor after the date of notice
of material breach given by Unisys. Unisys shall have the option upon
cancellation either to obtain delivery and retain title and license rights,
as provided herein, in and to all Work Product completed or in preparation
on the date of cancellation in exchange for payments made and owed as of
such date or to relinquish all such title and license rights and obtain a
refund of all amounts paid to Contractor under this Agreement.
2. Contractor shall have the right to cancel this Agreement and the rights
and licenses granted to Unisys in Article VI only if Unisys fails to cure
any deficiency in making any payment due Contractor, which is not in good
faith dispute between the parties, within thirty days after receiving
written notice of such deficiency.
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C. ADDITIONAL RIGHTS AND REMEDIES
Unisys and Contractor shall retain all rights and remedies available at law
or equity, to the extent they are not inconsistent with this Agreement, in
the event of any termination or cancellation of this Agreement.
ARTICLE XIX LIMITATION OF LIABILITY
In no event shall either Unisys or Contractor be liable for any incidental,
indirect, special or consequential damages, including but not limited to loss of
use, revenues, profits or savings, even if the claimant party knew or should
have known of the possibility of such damages.
ARTICLE XX ARBITRATION
1. Any controversy or claim related to or arising from this Agreement
and/or the contracted services to be provided by Contractor and its
employees shall be settled by arbitration conducted on a confidential basis
under the U.S. Arbitration Act and the then current Commercial Arbitration
Rules of the American Arbitration Association, strictly in accordance with
the terms of this Agreement AND THE SUBSTANTIVE LAW OF THE COMMONWEALTH OF
PENNSYLVANIA.
2. Neither party shall institute an arbitration proceeding unless, at
least sixty (60) days prior thereto, such party shall have furnished to the
other written notice by registered mail of its intent to do so. Notice to
Unisys shall be addressed to its General Counsel, Unisys Corporation,
Township Line and Union Meeting Roads, Blue Bell, Pennsylvania 19424-0001.
3. Arbitration shall be conducted by three arbitrators, at least one of
whom shall be knowledgeable in data processing and business information
systems and one of whom
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shall be an attorney. The arbitrators shall have no authority to award
punitive damages or any other form of noncompensatory damages. Judgment
upon the arbitrators' award may be entered and enforced in any court of
competent jurisdiction.
4. Neither party shall be precluded from seeking provisional remedies in
the court of any jurisdiction to protect its rights and interests, but such
shall not be sought as a means to avoid or stay arbitration.
ARTICLE XXI PUBLICITY
Contractor shall not disclose the terms and conditions of or publish any
information concerning this Agreement without prior written consent of Unisys.
ARTICLE XXII WAIVERS
The failure of either party to assert any claim or right against the other
party regarding its obligations hereunder, in any one or more instances, shall
not constitute a waiver of such claim or right with respect to future
performance of such obligations and other obligations under the Agreement.
ARTICLE XXIII SEVERABILITY
The invalidity or unenforceability of any particular provision of this
Agreement shall not affect other provisions and the Agreement shall be construed
in all respects as if such invalid or unenforceable provisions were omitted.
ARTICLE XXIV HEADINGS
All Article and paragraph headings are for reference only and shall not be
used in construing this Agreement.
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ARTICLE XXV GOVERNING LAW
THE FORMATION, INTERPRETATION AND PERFORMANCE OF THIS AGREEMENT SHALL BE
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GOVERNED BY THE LAWS OF THE COMMONWEALTH OF PENNSYLVANIA.
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ARTICLE XXVI SURVIVAL OF PROVISIONS
The rights and duties of the parties as set forth in Articles VI, VII,
VIII, XII, and XVII, shall survive the expiration, termination or cancellation
of this Agreement and shall inure to the benefit of and be binding on their
authorized assigns, successors and legal representatives.
ARTICLE XXVII ENTIRE AGREEMENT
This Agreement sets forth the entire agreement between the parties and
supersedes all prior oral and written agreements and understandings between the
parties with respect to the subject matter hereof. This Agreement may not be
modified or the parties released from their obligations hereunder except by an
instrument in writing signed by an authorized representative of the parties.
ARTICLE XXVIII COMPLIANCE WITH LAW
Contractor shall comply with all federal, state and local laws and
regulations pertaining to the performance of this Agreement and shall indemnify
Unisys for any liability and related costs, expenses and fees incurred by Unisys
as a result of Contractor's breach of such obligation.
ARTICLE XXIX BUSINESS PRACTICE GUIDELINES
Contractor acknowledges that it has received a copy of the Unisys Code of
Ethical Conduct (Addendum D) and has read and will act in accordance with them.
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TIER CORPORATION UNISYS CORPORATION
By: /s/ James L. Bildner By: /s/ T. Jaskelewicz
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Tony Jaskelewicz
Title: Chairman & CEO Title: Procurement Specialist
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Date: Date: 11-13-95
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ADDENDUM A
STATEMENT OF WORK
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PROVIDE SYSTEMS ENGINEER APPLICATION SFW INTEGRATION (600.04) INTERNALIST
APPLICATION SFW INTEGRATION (600.04) SUPPORT FOR ARIZONA CHILD WELFARE.
SPECIFIC WORK DIRECTION TO BE PROVIDED BY UNISYS FRANK BRADICK.
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ADDENDUM B
CONTRACTOR'S PERSONNEL AND HOURLY RATES
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Name Hourly Rate
---- -----------
Gram Pettiser $21000/month
Ralph Bustamante $16800/month
Diane Sutton $16800/month
Brad Nichols $21000/month
Dennis Ward $21000/month
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ADDENDUM C
TRAVEL POLICY
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LODGING: $75/day for metropolitan areas
$50/day for other domestic areas
Metropolitan areas are defined as Boston, Chicago, Dallas,
Honolulu, Houston, Los Angeles, New Orleans, New York,
Philadelphia, San Francisco, and Washington D.C.
MEALS: Meals including tips, are limited to $25 per day.
When possible, receipts are to be submitted.
CAR RENTAL: The rental of an automobile at a rate in excess of major rental
agency rates for standard automobiles is prohibited. The
itemized car rental agreement form must be submitted as a
receipt.
TRAVEL: All personnel must travel by coach or economy class for air and
rail travel. Unisys authorized travel of Contractor's personnel
by private auto will be compensated at the rate of twenty one
($.21) cents per mile plus tolls and parking fees.
The above information is provided as a guideline and shall be adhered to
whenever possible. However, all reasonable, actual expenses incurred which are
submitted and supported by appropriate receipts will be reimbursed.
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ADDENDUM "D"
UNISYS CODE OF ETHICAL CONDUCT
------------------------------
INTRODUCTION
Every UNISYS CONSULTANT is required to understand and comply fully with both the
rules and approval procedures established by this Code of Ethical Conduct.
COMPLY WITH ALL LAWS
As a UNISYS CONSULTANT you must scrupulously comply with all laws.
DEAL HONESTLY WITH CUSTOMERS AND SUPPLIERS
In dealing with UNISYS customers and suppliers, be accurate and complete in all
representations. The submission to a customer of a proposal, quotation or other
document or statement that is false, incomplete or misleading can result in
civil and/or criminal liability for UNISYS and the CONSULTANT.
UNISYS is committed to developing, manufacturing and delivering quality products
which meet all contractual obligations and UNISYS quality standards. UNISYS
expects your full support in meeting this objective.
In conducting market analysis, do not accept, use or provide UNISYS with
information proprietary to our competitors.
REPORTING COSTS
The CONSULTANT'S submission of an invoice is a representation that the invoice
accurately reflects the Agreement and the work to be provided thereunder.
CONSULTANTS must be particularly careful in identifying and reporting to UNISYS
any costs which they incur which are considered unallowable by special
legislation that applies to the work such as the US Federal Acquisition
Regulations.
MAKING POLITICAL CONTRIBUTIONS
It is contrary to the UNISYS Code of Ethical Conduct to contribute funds to any
political party or candidate. Therefore, you, as a CONSULTANT to UNISYS, cannot
contribute or donate on behalf of UNISYS, either directly or indirectly, funds,
products, services or other resources for any political cause, party or
candidate. (You may make voluntary personal contributions to any lawful
political causes, parties or candidates so long as you do not represent that
such contributions come from UNISYS.)
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CONFLICT OF INTEREST
You may not have any employment, consulting, or other business relationship
with a competitor, customer or supplier of UNISYS, or invest in any
competitor, customer or supplier of UNISYS (except for moderate holdings of
publicly-traded securities) unless you have notified UNISYS in writing and
received written authorization from UNISYS.
INSIDER TRADING
Do not trade in the securities of UNISYS or any other company, or buy or
sell any property or assets, on the basis of non-public information you
have acquired through your Agreement with UNISYS, whether such information
comes from UNISYS or from another company with which UNISYS has a
confidential relationship.
ACCEPTANCE OF BUSINESS COURTESIES
Never accept anything from someone doing business with UNISYS where the
gratuity is offered or appears to be offered in exchange for any type of
favorable treatment or advantage. To avoid even the appearance of
impropriety, do not accept any gifts or promotional items of more than
nominal value. You may accept meals, drinks, or entertainment, only if
such courtesies are unsolicited, infrequently provided and reasonable in
amount. Such courtesies must also be directly connected with business
discussions. Do not accept reimbursement for lodging or travel expense, or
free lodging or travel without the express written approval of UNISYS.
RESTRICTED INFORMATION
Do not disclose to any outside party, except as specifically authorized by
UNISYS, any non-public business, financial, personnel or technological
information, plans, or data that you have acquired during the period you
were a CONSULTANT for UNISYS. Upon termination of the Agreement, you may
not copy, take or retain any documents containing UNISYS restricted
information. The prohibition against disclosing UNISYS restricted
information extends indefinitely beyond the period of the Agreement. Your
agreement to protect the confidentiality of such information and fully
comply with the non-disclosure requirements is considered an important
condition of your Agreement with UNISYS.
GOVERNMENTAL CLASSIFIED AND PROPRIETARY INFORMATION
Government contractors have special obligations to comply with laws and
regulations that protect classified information. CONSULTANTS with valid
security clearance who have access to classified information must ensure
that such information is handled in accordance with pertinent government
procedures. These restrictions apply to any form of information, including
whether in written or electronic form.
UNISYS does not solicit nor should any CONSULTANT receive any sensitive
proprietary internal government information including budgetary or program
information before it is available through normal processes.
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REPORTING VIOLATIONS AND DISCIPLINE
Strict adherence to this Code of Ethical Conduct is vital. CONSULTANTS are also
responsible for ensuring that their employees or subcontractors adhere to the
provisions of the Code.
CONSULTANTS are expected to report any suspected violations of the Code or other
irregularities to the UNISYS Ombudsman who can be reached at 800-732-3247.
Violations of the Code may result in termination of your Agreement with UNISYS
or even the filing of a civil or criminal complaint.
INTERNATIONAL TRANSACTIONS
In the event you become involved with an international transaction please note
that the following additional restrictions may apply:
EXPORT CONTROLS
Export regulations issued by the United States government apply to all
UNISYS products and technical data which are sent overseas from the United
States. The controls also extend to products manufactured or developed
abroad using United States technology and to exports of UNISYS products
from one country to another.
The law requires the use of various export licenses as a means to authorize
international shipments and control exports.
Non-compliance with United States export regulations can result in both
criminal and civil penalties for UNISYS.
BOYCOTTS
The United States government has enacted laws which oppose restrictive
trade practices or boycotts imposed by foreign countries against other
countries friendly to the United States or against any United States
person. While the only present beneficiary of these laws is Israel in
relation to boycotts enacted by the Arab League countries, the law is
general in nature and would apply to the boycott of any other nation with
whom the United States has diplomatic or trading relations and which is not
itself the object of a boycott pursuant to United States law.
The boycott laws apply to United States companies and their subsidiaries.
There are specific export and tax laws and regulations that set forth
prohibited activities, which include (a) active compliance by which
companies form business relationships and make businesses decisions in
conformance with a boycott, and (b) passive compliance by which companies
furnish information in accordance with boycott requests. The most frequent
requests for prohibited statements appear in transaction documents such as
invoices, letters of credit, requests for proposals and involve the origin
of the goods or the carrier transporting them. UNISYS must not comply with
any such requests and must report all
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requests received to the United States government even though we do not
comply with them. If you believe you have identified a boycott request,
contact the Unisys Legal Department immediately for advice.
FOREIGN CORRUPT PRACTICES ACT
In 1977 the United States enacted the Foreign Corrupt Practices Act which
makes it a crime for United States corporations to bribe foreign officials
to retain business. The act contains two parts: (a) accounting and
record-keeping controls to detect foreign bribes and (b) provisions which
make foreign bribes a crime.
The Act requires any company which has stock registered with the US
Securities and Exchange Commission to:
(1) make and keep books, records and accounts which accurately and fairly
reflect the transactions and dispositions of assets of the company;
and
(2) implement and maintain internal accounting controls sufficient to
provide reasonable assurance that:
(a) transactions are handled in accordance with management's
authorization,
(b) transactions are recorded as necessary to permit preparation of
financial statements in compliance with generally accepted
accounting principles and to maintain accountability for assets,
(c) access to assets is permitted in accordance with management
authorization, and
(d) recorded accountability for assets is compared with the existing
assets at reasonable intervals, and appropriate action is taken
with respect to any differences.
Further, the statue specifically makes illegal any payment aimed at
inducing a foreign official to misuse his official position, or paying any
money to a foreign agent where we have "reason to know" the money may be
used for illegal payment.
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-----------------------------------------
UNISYS CORPORATION CHG DATE PURCH ORD NO RELEASE #
BLUE BELL, PENNSYLVANIA 19424-0009 09/04/1997 40R81224 11174
-----------------------------------------
CHG ORDER# PAGE
10 1 OF 1
---------- ----------
CHANGE ORDER
TIER CORPORATION
1350 TREAT BLVD
SUITE 250
WALNUT CREEK CA 94596 [ ] MATERIAL AND/OR SERVICES
800-789-8437 1390 HAVE BEEN RECEIVED. DO NOT
ATTN: MICHELE LEWANDOWSKI DUPLICATE
------------------------------------------------------
REASON FOR INCREASE DOLLAR VALUE AND CHANGE PERIOD OF PERFORMANCE
CHANGE ------------------------------------------------------
*********************C H A N G E R E Q U I S I T I O N **********************
--------------------------------------------------------------------------------
DESCRIPTION
--------------------------------------------------------------------------------
-- TIME PERIOD: 10/23/1995 - 12/15/1997
** PLEASE SEE ATTACHED SHEET(S) FOR WORK DESCRIPTIONS & ANY OTHER
CONDITIONS **
-- TERMS AND CONDITIONS PER ATTACHED AGREEMENT ARE APPLICABLE TO THIS ORDER.
CASUAL OVERTIME WILL NOT BE COMPENSATED.
-- BACKUP DETAIL IS MAINTAINED BY RESOURCE MGMT SVC GRP IN EAGAN, MN.
-- CHANGE ORDER # 10 PREVIOUS VALUE: $4,331,904
CHANGE AMOUNT: $ 152,832
--------------------------------------------------------------------------------
TAXABLE EXEMPTION # : 07-335080-N CONFIRMATION NOT TO EXCEED
NO YES YES NO $4,484,736
X /s/ T. Jaskelewicz X
--------------------------------------------------------------------------------
BUYER'S SIGNATURE TOTAL
TONY JASKELEWICZ
TOWNSHIP LINE & MEETING RD, BLUE BELL, PA 9424-0001
ADDRESS ALL COMMUNICATIONS TO THE ABOVE
--------------------------------------------------------------------------------
THE ABOVE PURCHASE ORDER NO., RELEASE NO. AND ITEM NOS. MUST BE SHOWN ON
ALL PACKING LISTS, INVOICES, CORRESPONDENCE, ETC.
--------------------------------------------------------------------------------
-- SUBMIT INVOICES (ALONG WITH TRAVEL EXPENSE RECEIPTS IF APPLICABLE) TO:
UNISYS CORPORATION ATTN: RESOURCE MGMT SVC GRP, MS F1K03 INVOICE DEPT. (TEL.
612-687-2916) 3199 PILOT KNOB RD, EAGAN, MN 55121
SUPPLIER'S COPY CTS-FS-0018147628