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EXHIBIT 10.17
MASTER AGREEMENT
BETWEEN
CINERGY SERVICES, INC.
AND
CONVERGENT GROUP CORPORATION
(CVG REFERENCE NO. U159)
This AGREEMENT (hereinafter referred to as "Agreement") is made and
entered into on July 10, 1997 (the "Effective Date"), by and between Cinergy
Services, Inc., a Delaware corporation with a place of business at 0000 Xxxx
Xxxx Xx., Xxxxxxxxxx, XX 00000 (hereinafter referred to as "CSI"), and
Convergent Group Corporation a Delaware corporation with a place of business at
0000 Xxxxx Xxxxxxxx Xxx, Xxxxx 000, Xxxxxxxxx, Xxxxxxxx 00000 (hereinafter
referred to as "CONVERGENT") (collectively hereinafter referred to as
"Parties").
WHEREAS, CSI desires to develop and implement the integration of various
strategic systems and applications of its Energy Delivery Business Unit to
support its corporate business objectives; and
WHEREAS, CONVERGENT represents that it is capable of providing to CSI the
consulting, procurement, and other services necessary for accomplishing such
integration.
NOW, THEREFORE, in consideration of the mutual promises contained herein, the
receipt and sufficiency of which are hereby acknowledged, with said
consideration binding the Parties, the Parties agree as follows:
1. STATEMENT OF SERVICES - SCOPE OF WORK
1.1 CONVERGENT shall procure for CSI Hardware manufactured by third parties
hereto (hereinafter referred to as "Hardware"), the licensing and maintenance of
Third-Party Application Software and Operating System Software (hereinafter
referred to as "Software"), and associated documentation (hereinafter referred
to as "Documentation"), as well as provide professional technical and management
consulting services to CSI for Custom Software and Custom Application Software
systems as well as provide technical services related thereto, all as further
defined in this Agreement and Schedules A through I ("Schedules"), which are
attached hereto and incorporated herein by this reference (hereinafter referred
to as "Work").
1.2 All Work shall be performed in accordance with sound and generally accepted
professional practices and industry standards by professional, managerial and
administrative personnel fully qualified in the respective professional
disciplines required.
1.3 CONVERGENT shall have the complete professional, managerial or technical
responsibility for the validity, accuracy and reliability of the Work performed.
1.4 CONVERGENT agrees to provide CSI with Hardware, Third-Party Software, Custom
Software, Documentation, and technical and management consulting services as
required to manage the development and implementation of strategic systems and
applications to support CSI's
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corporate business objectives. These systems will be implemented in phases in
accordance with the requirements of Schedule A - Scope of Work attached hereto
and incorporated herein by this reference.
1.5 CONVERGENT will be the general project manager for its personnel and
subcontractors in support of Energy Delivery Systems Integration Program (EDSIP)
which is under CSI oversight. CONVERGENT's Scope of Work includes the Energy
Delivery Asset System (EDAS), Smallworld Systems, Inc. Software; Trouble
Call/Outage Management System (TC/COM), Configured Energy Systems, Inc. (CES)
software; Oracle Software; Digital Equipment Corporation (DEC) server hardware;
EDAS record creation; as well as hardware and software maintenance. CONVERGENT
will be CSI's integration consultant responsible for advising CSI on the
management, implementation, and integration strategies related to the deployment
of the Work Management System (WMS); The Indus Group, Inc.; Resource
Allocation/Computer Aided Dispatch (RA/CAD), Utility Partners, Inc.;
Distribution Planning System (DPS), ABB, Inc. software, which are under separate
contract with CSI. CSI shall ensure their contractors cooperate with and follow
CONVERGENT's direction to meet the agreed upon Schedule H - Project Schedule in
support of the integrated system solution.
2. SOLE AGREEMENT
2.1 This Agreement and the Schedules hereto constitute the entire agreement and
understanding of the Parties with respect to the subject matter hereof and
supersede and replace all prior agreements and understandings, whether oral or
written.
2.2 This Agreement may be amended or modified only by a Change Order in writing
and duly executed by both Parties.
3. CONVERGENT EMPLOYEES
3.1 CONVERGENT personnel shall be and will remain at all times, during this
Agreement, employees of CONVERGENT. CSI shall not be responsible for any
payments due CONVERGENT employees on account of, or in connection with, this
Agreement.
3.2 CONVERGENT employees assisting CSI under this Agreement ("Project
Personnel") who are found, in CSI's sole opinion, to be unsatisfactory for
services to be performed hereunder, shall be removed by CONVERGENT immediately
upon receipt of written notice from CSI. Such employee shall be replaced with
another CONVERGENT employee satisfactory to CSI as soon as possible.
4. PATENTS AND INVENTIONS
4.1 Deliverable Products and other materials furnished by CONVERGENT
4.1.1 CONVERGENT has developed numerous proven proprietary materials which
provide the methodologies for the development of the Deliverable Products.
CSI agrees that CONVERGENT shall own all such products, materials, and
methodologies and that CSI shall have or obtain no rights in such
proprietary products, materials, and methodologies except pursuant to a
separate written agreement executed by the Parties. CSI understands that
CONVERGENT proprietary costs analysis and strategic planning models and
facilities database models and designs or certain software products may be
used under this Agreement and CSI agrees not to exhibit, distribute, or
otherwise disclose any such proprietary methods and materials to external or
third parties without prior approval in
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writing from CONVERGENT. CONVERGENT shall continue to market, distribute,
make derivative works from and sell similar work to other companies without
further notice to nor consent from CSI. Nothing in this Agreement shall
restrict or prohibit CONVERGENT's right to use concepts, techniques, and
know-how used or developed in the course of performing these technical and
management services.
4.1.2 CONVERGENT shall be the owner of copyright or other intellectual
property rights in such Deliverable Products. CONVERGENT grants to CSI a
perpetual unrestricted, royalty-free, nonexclusive license to reproduce and
use, for CSI's internal purposes only, any materials developed for CSI
related to this Agreement, not including Third-Party Software Licenses. CSI
agrees not to exhibit, distribute, or otherwise disclose any proprietary
software, methods, or materials to external or third parties without prior
approval in writing from CONVERGENT.
4.1.4 The CONVERGENT grant of a License for CSI to use the Custom Software
includes the right of any CSI affiliate or wholly-owned subsidiary of the
parent CSI corporation to use the Custom Software for CSI internal business
purposes only, and CSI and its affiliates and wholly-owned subsidiaries
agree not to exhibit, distribute, or otherwise disclose any of the
proprietary Software, methods, or materials to third parties without prior
approval in writing by CONVERGENT.
4.2 All Third-Party Software licenses will be executed between CSI and the
Third-Party Software vendors. Grants of licenses for all Third-Party Software
licenses will be transferred from the Third-Party to CSI in accordance with a
mutually acceptable license agreement.
5. PRICING
5.1 The Total Price for the Work is $26,181,378.00, which is comprised of a
Fixed Price component as defined in Schedule B - Fixed-Price Payments and an
Estimated Price component as defined in Schedule C - Billing Terms for Estimated
Work, and it includes the price of the Previous Work.
5.2 The Estimated Price component is $11,031,378.00. The Estimated Price
component, as defined in Schedule C - Billing Terms for Estimate Work, includes
all estimated Incidental Expenses (billed to CSI at cost plus a three and
one-half percent (3 1/2%) administrative fee), Custom Software Applications,
system integration development, Hardware, and Third-Party Software. Incidental
Expenses shall include, without limitation, reasonable amounts for the
following: air transportation, auto rental, rail transportation, cabs, lodging
and meals, express air shipments, data transmittal, telephone calls, and copying
costs. The description of the tasks associated with the estimated Work effort is
contained in Schedule A -Scope of Work, and the billing terms for the estimated
cost and fees are contained in Schedule C - Billing Terms for Estimated Work.
5.3 The Fixed Price component is $15,150,000.00 and includes the delivery of
technical and management consulting services and EDAS database creation. The
description of the tasks associated with the Fixed Price component is contained
in Schedule A - Scope of Work, and the billing schedule for the Fixed Price
component is contained in Schedule B - Fixed-Price Payments.
5.4 The costs and fees set forth in Schedule B - Fixed-Price Payments and
Schedule C - Billing Terms for Estimated Work are exclusive of the following and
CSI agrees to:
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5.4.1 enter into an Agreement Change Order for any mutually agreed upon
change of Schedule A - Scope of Work and/or the costs and fees set forth in
Schedule B - Fixed-Price Payments and Schedule C - Billing Terms for
Estimated Work, in accordance with Clause 11.1.2 of this Agreement.
5.4.2 all taxes, however designated, paid or payable by hereunder, exclusive
of taxes based on the net income of CONVERGENT. If any charges under this
Agreement are exempt from sales or use tax liability, CSI shall provide to
CONVERGENT, upon execution of this Agreement, evidence of tax exemption
acceptable to the relevant taxing authority.
5.5 The Parties agree that there are no monies in the Total Price for the Work
for incentives associated with the successful completion of this project.
However, a mutual incentive structure may be funded and defined in Schedule E -
Project Incentive Plan within 60 days after execution of this Agreement unless a
different Schedule is mutually agreed upon.
6. PAYMENT
6.1 The Fixed Price component payment schedule is contained in Schedule B -
Fixed-Price Payments, which is attached hereto and incorporated herein by this
reference. The Estimated Price component billing terms are delineated in
Schedule C - Billing Terms for Estimated Work, which is attached hereto and
incorporated herein by this reference. Acceptance of deliverables contained in
Schedule A - Scope of Work will be in accordance with Schedule I - Deliverable
Acceptance Procedures.
6.2 In the event that an invoice remains unpaid for thirty (30) days after the
date it is received by CSI, CONVERGENT may charge CSI interest at the rate of 1
1/2 percent per month on the unpaid balance of said invoice from date of its
receipt by CSI.
6.3 All invoices will be addressed to:
Cinergy Services, Inc.
Attn: Xxxx Xxxxx Xxxxxxxxx
0000 Xxxx Xxxx Xx.
Xxxxxxxxxx, XX 00000
6.4 CSI will make payments using Electronic Funds Transfers using the bank and
account information contained in Schedule G - Electronic Funds Transfer.
7. TERM; TERMINATION OF AGREEMENT
7.1 This Agreement shall remain in full force and effect until the earlier of
(a) the Work to be performed hereunder is completed or (b) termination, as
provided below.
7.2 Termination for Cause
7.2.1 If either Party shall at any time commit any material breach of any
covenant, or warranty under this Agreement, and (i) shall fail to cure such
breach within thirty (30) days of written notice of such breach or (ii) if
it is not cured within thirty (30) days of written notice, shall fail to
diligently commence to cure it within thirty (30) days of notice, the
defaulted Party may at its option and in addition to any other remedies to
which it is entitled, terminate this Agreement by written notice.
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7.2.2 Except as may be prohibited by the U. S. bankruptcy laws, in the event
of either Party's insolvency or inability to pay debts as they become due,
voluntary or involuntary bankruptcy proceedings by or against a Party
hereto, or appointment of a receiver or assignee for the benefit of
creditors, the other Party may terminate this Agreement by written notice.
7.2.3 CONVERGENT shall have the right to terminate this Agreement by written
notice to CSI upon CSI's failure to pay CONVERGENT any undisputed amount due
hereunder within sixty (60) days after such amount was due and payable. Any
disputed amounts shall be resolved in accordance with Section 32, Alternate
Dispute Resolution (ADR), herein.
7.3 Termination for Convenience
7.3.1 CSI shall have the right to terminate this Agreement at any time for
CSI's convenience provided that CONVERGENT is given (i) thirty (30) working
days written notice by certified mail, return receipt requested of CSI's
intent to terminate including the termination effective date and (ii) an
opportunity for consultation with CSI prior to the termination effective
date. Upon receiving notice of termination, CONVERGENT shall discontinue the
Work on the date and to the extent specified in the notice and place no
further orders for subservices except as needed to continue any portion of
the Work which was not terminated. CONVERGENT shall also make every
reasonable effort to cancel, upon terms satisfactory to CSI, all orders or
subcontracts related to the terminated Work.
7.3.2 If this Agreement is terminated by CSI for convenience after
CONVERGENT has commenced any Work, mobilization, or other off-site
activities under this Agreement, CONVERGENT will be paid for all Work
performed prior to the date of termination and its actual and reasonable
incurred costs and legally committed accrued costs from date of termination,
including reasonable demobilization and project costs associated with
vacating the site, determined in accordance with generally accepted
accounting principles consistently applied.
7.4 All license rights granted but not paid in full by CSI shall cease upon any
termination of this Agreement. Within fifteen (15) days after termination of the
license rights granted herein, or termination of this Agreement for any reason,
CSI agrees to certify to CONVERGENT in writing that the original and all copies
of the Software and Documentation, in any form, have been destroyed.
8. CONFIDENTIALITY OF INFORMATION
8.1 The Parties acknowledge that in the course of this Agreement they will have
access to, and/or will be in possession of, Confidential Information of the
other. "Confidential Information" shall mean information regarded by the
disclosing Party as confidential, including, but not limited to, information
relating to its past, present, or future research, development, or business
affairs; future project purchases; any proprietary products, materials, or
methodologies; all items prepared for and submitted to the receiving Party in
connection with Work performed under this Agreement, including drafts and
associated material; and any other information marked or, in the case of
information verbally disclosed, verbally designated as confidential at the time
of disclosure by the disclosing Party and is reduced to a written summary marked
in accordance with the verbal disclosure and delivered to the other Party within
thirty (30) days after disclosure.
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8.2 Each Party shall hold in confidence, in the same manner as it holds its own
Confidential Information of like kind, all Confidential Information of the other
to which it may have access hereunder. Access to Confidential Information shall
be restricted to those of each Party's personnel, subcontractors and other
agents with a need to know and engaged in a permitted use. Both Parties agree
that their respective personnel, subcontractors, agents, and representatives who
are given access to Confidential Information relating to this Agreement will be
made aware of this Article and will understand that they are bound by this
Article. Deliverable products marked confidential shall neither be exhibited nor
distributed in any way to parties external to this Agreement, or to personnel,
subcontractors, consultants, and agents not engaged in the performance of this
Agreement.
8.3 The foregoing shall not prohibit or limit either Party's use of information
including, but not limited to, ideas, concepts, know-how, techniques, and
methodologies which (i) are or become generally available to and known by the
public (other than as a result of an unpermitted disclosure directly or
indirectly by the receiving Party hereunder or its agents, representatives, or
advisors), (ii) is or becomes available to it on a nonconfidential basis from a
source other than the disclosing Party or its affiliates, advisors, agents, or
representatives, provided that such source is not and was not bound by a
confidentiality agreement with or other obligation of secrecy to the disclosing
Party, (iii) has already been or is hereafter independently acquired or
developed by it without violating any confidentiality agreement or other
obligation of secrecy to the disclosing Party, or (iv) is required by law or
regulation to be disclosed, provided, however, that it shall give the disclosing
Party reasonable advance notice of such requirement so that the disclosing Party
may seek appropriate legal relief against such disclosure.
8.4 The Parties hereto agree and acknowledge that any such Confidential
Information shall be considered for all purposes confidential and privileged
information under any local, state, or federal law and such Confidential
Information shall not be released pursuant to any local, state, or federal act,
law, or statute concerning "freedom of information."
8.5 This section shall survive termination or expiration of this Agreement for
any reason for a period of five (5) years.
8.6 CSI acknowledges and agrees that the provisions of this section are
essential to CONVERGENT and are reasonable and necessary to protect the
legitimate interests of CONVERGENT and that the damages sustained by CONVERGENT
as a result of a breach of the agreements contained herein will subject
CONVERGENT to immediate, irreparable harm and damage, the amount of which,
although substantial, could not be reasonably ascertainable, and that recovery
of damages at law will not be an adequate remedy. Therefore, CSI agrees that
CONVERGENT, in addition to any other remedy it may have under this Agreement or
at law, shall be entitled to seek injunctive and other equitable relief to
prevent or curtail any breach of any provision of this section. CSI waives any
right to the posting of a bond in the event of an issuance of a temporary
restraining order, preliminary injunction, or permanent injunction upon the
issuance of said order by a court of competent jurisdiction.
8.7 Upon expiration or termination of this Agreement for any reason, both
Parties shall return to the other Party any Confidential Information or
proprietary information belonging to the other Party which is in its possession
or certify in writing by an officer of the corporation that such Confidential
Information has been destroyed, except that CONVERGENT shall be entitled to
retain a duplicate set of any configuration and/or customized Software delivered
by CONVERGENT in connection with this Agreement. This section shall survive
expiration or termination of this Agreement for any reason.
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9. EQUAL EMPLOYMENT
In performing the technical and management services hereunder, CONVERGENT agrees
to comply with all applicable local, state, and federal laws, regulations, and
orders relating to fair and equal employment opportunity practices and policies.
10. NON-SOLICITATION OF EMPLOYEES
10.1 The Parties agree that they will not, during the term of this Agreement and
for a period continuing for 24 months after the expiration or termination of
this Agreement, for any reason, directly or indirectly, solicit, influence,
entice, or encourage any person who is then or had been within one (1) year of
such action an employee to cease his or her relationship with that Party, or
otherwise interfere with, disrupt, or attempt to disrupt any past, present, or
prospective relationship, contractual or otherwise, between the other Party and
any of its employees.
10.2 The Parties further agree that they will not, during the term of this
Agreement and for a period continuing for 24 months thereafter, hire or attempt
to hire, whether as an employee, consultant, or otherwise, any person who was
employed by the other Party at any time during the term of this Agreement.
10.3 Both Parties acknowledge and agree that the provisions of this section are
essential to them and are reasonable and necessary to protect the legitimate
interests of each Party and that the damages sustained by either Party as a
result of a breach of the agreements contained herein will subject them to
immediate, irreparable harm and damage, the amount of which, although
substantial, could not be reasonably ascertainable, and that recovery of damages
at law will not be an adequate remedy. Therefore, the Parties agree that, in
addition to any other remedy they may have under this Agreement or at law, each
shall be entitled to seek injunctive and other equitable relief to prevent or
curtail any breach of any provision of this section. Both Parties waive any
right to the posting of a bond in the event of an issuance of a temporary
restraining order, preliminary injunction, or permanent injunction upon the
issuance of said order by a court of competent jurisdiction.
10.4 This section shall survive termination or expiration of this Agreement for
any reason.
10.5 If the scope of any restriction contained in this section is too broad to
permit enforcement of such restriction to its fullest extent, then such
restriction shall be enforced to the maximum extent permitted by law and each
Party hereby consents and agrees that the scope may be judicially modified in
any proceeding brought to enforce such restriction.
10.6 This section shall not be applicable to retirees or persons involuntarily
separated or involuntarily redeployed.
11. SPECIAL CONDITIONS
11.1 If the project scope of Work is requested by CSI to be increased or changed
in such a manner as to require additional labor or expenses, and CONVERGENT
agrees to such changes, the Parties will adjust both scope and cost and fees, or
other affected terms through written amendment to this Agreement.
11.2 CSI and CONVERGENT reserve the right to subsequently amend this Agreement
to include services in addition to those specified in the attached Schedules and
outside the scope of Schedule D - Project Assumptions. Compensation for
additional services or products will be as
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agreed by CSI and CONVERGENT and may be incorporated as Change Orders to this
Agreement. All Work to be accomplished will be defined in written Change Orders
approved by the Parties in accordance with the Change Order process defined in
Schedule F - Change Order Procedure. The Change Orders will define the
objectives to be addressed, the scope of services to be provided, the products
to be delivered, the schedule to be met, special considerations (as appropriate)
and a Change Order price estimate or fixed fee. CONVERGENT will be reimbursed as
provided in the Change Order.
11.3 CONVERGENT's project team members will have the opportunity and authority
to contact personnel at CSI directly in the performance of technical consulting
duties.
12. ADDRESSES OF PARTIES TO AGREEMENT
12.1 All correspondence, contracts, and communications between the Parties to
this Agreement should be made to the following:
Cinergy Services, Inc.
0000 Xxxx Xxxx Xx.
Xxxxxxxxxx, XX 00000
Attn: Xxxx Xxxxx Xxxxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Convergent Group Corporation
0000 Xxxxx Xxxxxxxx Xxx, Xxxxx 000
Xxxxxxxxx, XX 00000
Attn: Xxxxx X. Xxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
12.2 All notices required or permitted hereunder shall be sufficient if given in
writing and if delivered personally, by overnight courier, or by certified mail,
return receipt requested, postage prepaid, addressed to CONVERGENT or CSI, as
the case may be, at the addresses set forth above or at such other address as
such Party shall have designated in the manner provided in this section. Notice
shall be deemed given on the date of receipt, in the case of personal delivery,
or on the delivery or refusal date, as specified on the return receipt, in the
case of overnight courier or certified mail.
13. CONVERGENT TRAINING
Subject to a mutually agreed to schedule, CONVERGENT will provide training to
CSI in the use of CONVERGENT software listed in Schedule A - Scope of Work. The
extent of such training, number of CSI personnel to be trained, location of such
training, and the appropriate price are reflected in the Schedules.
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14. HARDWARE DELIVERY/INSTALLATION
14.1 Some Hardware will initially be delivered to CONVERGENT to be used for
planning and development efforts. During the period that the Hardware is located
at the CONVERGENT facility, Risk of Loss shall be with CONVERGENT and CONVERGENT
is authorized by CSI to install, maintain, and request warranty remedies from
the Third-Party Hardware manufacturer during the period it is located at
CONVERGENT's facility.
14.2 Risk of Loss to Hardware and Software shall pass to CSI when CONVERGENT no
longer has physical control of the equipment. Subject to manufacturer
warranties, the Hardware and Software will be deemed accepted when used by
CONVERGENT (if initially delivered to CONVERGENT) or by CSI (if initially
delivered to CSI installation site) in the ordinary course of business.
15. HARDWARE MAINTENANCE
CONVERGENT will procure Hardware maintenance for CSI. The terms of the Hardware
maintenance will be in accordance with mutually agreed upon maintenance
provisions.
16. SOFTWARE MAINTENANCE
16.1 CONVERGENT will procure Third-Party Software maintenance during the term of
this Agreement based upon a mutually agreed upon schedule of costs and fees
between CSI and CONVERGENT. The terms of the Third-Party Software maintenance
will be in accordance with mutually agreed upon maintenance provisions.
16.2 CONVERGENT will provide Custom Application Software maintenance in
accordance with a mutually agreed to schedule of costs and fees between CSI and
CONVERGENT during the term this Agreement. The terms of the Custom Software
maintenance will be in accordance with mutually agreed upon maintenance
provisions to be added at a later date.
17. WARRANTY AND DISCLAIMER
17.1 CONVERGENT warrants that for ninety (90) days after the Installation Date
(i) any Hardware which is procured for CSI by CONVERGENT will be free from
defects in materials and workmanship, (ii) any Third-Party Software which is
procured for CSI by CONVERGENT will perform substantially in compliance with the
Documentation provided by CONVERGENT, (iii) all Custom Software provided by
CONVERGENT will perform substantially in compliance with the Documentation
provided by CONVERGENT, and (iv) the system integration will meet the
requirements contemplated by the Scope of Work, if any, as demonstrated by the
successful completion of the mutually agreed upon acceptance test.
17.2 YEAR 2000 COMPLIANCE REPRESENTATIONS AND WARRANTY
17.2.1 CONVERGENT represents and warrants that the Custom Software provided
by CONVERGENT is designed to be used prior to, during, and after calendar
year 2000 AD, and that the software will operate during each such time
period without error relating to date data, specifically including any
error relating to, or the product of, date data which represent or
reference different centuries or more than one century.
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17.2.2 Without limiting the generality of the foregoing, CONVERGENT further
represents and warrants that:
(i) the software will not abnormally end or provide invalid or
incorrect results as a result of date data, specifically including
date data which represent or reference different centuries or more
than one century;
(ii) the software has been designed to ensure year 2000
compatibility, including, but not limited to, date data century
recognition, calculations which accommodate same century and
multi-century formulas and date values, and date data interface
values that reflect the applicable century;
(iii) the software includes "year 2000 capabilities." For the
purposes of this Agreement, "year 2000 capabilities" means the
software:
(a) will manage and manipulate data involving dates, including
single century formulas and multi-century formulas, and will
not cause an abnormally ending scenario within the application
or generate incorrect values or invalid results involving such
dates; and
(b) provides that all date-related user interface
functionalities and data fields include the indication of
century; and
(c) provides that all date-related data interface
functionalities include the indication of century.
17.2.3 The term "Year 2000 Compliance Representations and Warranty" shall
mean, collectively, the representations and warranties set forth in this
paragraph 17.2.
17.2.4 The Year 2000 Compliance Representations and Warranty period shall
begin as of the date of the License Agreement and end on the date the
software has operated without a breach of the Year 2000 Compliance
Representations and Warranty for a consecutive 14-month period subsequent
to January 1, 2000.
17.2.5 Any provisions of the License Agreement which tend to limit or
eliminate the liability of either Party, including any warranty provisions
of the License Agreement, shall not be applicable to the Year 2000
Compliance Representations and Warranty.
17.2.6 In the event that CSI is entitled to modify the software pursuant to
the License Agreement, CSI agrees that it shall not modify the software in
any manner which would affect the performance of the software in such a
manner as to cause it to fail to meet the Year 2000 Compliance
Representations and Warranty. There shall be no liability on the part of
CONVERGENT for any failure of the software to conform to the Year 2000
Compliance Representations and Warranty to the extent that any such failure
is directly attributable to a modification of the software by CSI.
17.2.7 In the event of any conflict or apparent conflict between the terms
and conditions of other articles of the License Agreement and the terms and
conditions of this Year 2000 Compliance Article, the terms and conditions
of this Year 2000 Compliance Article shall control. Except to the extent
otherwise set forth herein, the terms and conditions of the License
Agreement shall remain in full force and effect.
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17.2.8 This Year 2000 Compliance Article and the License Agreement shall
not be assigned by CONVERGENT without the prior written consent of CSI.
17.3 Year 2000 compliance warranties obtained by CONVERGENT from third parties
providing Third-Party Software will be assigned to CSI in the license
agreements.
17.4 CONVERGENT MAKES NO OTHER WARRANTIES OF ANY KIND EITHER EXPRESS OR IMPLIED,
INCLUDING, BUT NOT BY WAY OF LIMITATION, ANY IMPLIED WARRANTIES OF
MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE WITH RESPECT TO THE
HARDWARE, SOFTWARE, DOCUMENTATION, TECHNICAL INFORMATION, AND TECHNICAL
ASSISTANCE PROVIDED BY CONVERGENT PURSUANT TO THIS AGREEMENT.
18. LIMIT OF LIABILITY
Both Parties' liability with respect to Work provided under this Agreement shall
be limited to claims directly attributable only to the failure of each Party's
agents or employees to exercise the degree of skill and performance normally
exercised by duly qualified persons performing similar functions. The amount of
liability for each Party shall not exceed the total amount of this Agreement. IN
NO EVENT SHALL EITHER PARTY, ITS EMPLOYEES OR AGENTS BE LIABLE FOR LOSS OF
EARNINGS, LOSS OF PROFITS, LOSS OF INTEREST, JUDGMENTS, AWARDS, OR CONTRIBUTION
THERETO, OR ANY OTHER SPECIAL, INDIRECT, OR CONSEQUENTIAL DAMAGE, HOWEVER
CAUSED.
19. NEGLIGENCE
Each Party shall be responsible for willful misconduct and negligent acts or
omissions of its agents and employees. Each Party shall indemnify, hold
harmless, and defend the other from and against all liabilities for bodily
injury and property damage to the extent caused by the willful or negligent act
or omission of the indemnifying Party or its agents or employees. This section
shall survive expiration or termination of this Agreement for any reason.
20. LIMITATION OF REMEDIES
20.1 CONVERGENT's entire liability and CSI's exclusive remedy in respect to Work
provided under this Agreement with the exception of the indemnity provision in
Section 21, shall be that CONVERGENT will, pursuant to applicable maintenance
provisions, restore the Hardware to working order if it should fail due to
defects in materials and workmanship and correct the Third-Party Software or
Custom Software provided by CONVERGENT if it should fail to substantially
conform to the Documentation provided by CONVERGENT, during the period in which
CONVERGENT is providing maintenance services in accordance with Sections 15 and
16 herein. However, if CONVERGENT is unable to cure such defects, as CSI's
exclusive remedy, CONVERGENT will grant CSI a refund for the Hardware and/or
Third-Party Software and/or Custom Software involved, based upon its straight
line depreciated value over the life of the product as determined by CONVERGENT
and accept its return.
20.2 CONVERGENT's entire liability for damages for any cause whatsoever, and
regardless of the form of action, shall be limited to CSI's actual direct
damages not to exceed the amount paid to CONVERGENT under this Agreement for the
specific item that caused the damage or that is the
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subject matter of, or is directly related to, the cause of action. This
limitation is not applicable to claims for patent, copyright, and trade secret
infringement which claims are covered by Section 21.
20.3 IN NO EVENT SHALL CSI, CONVERGENT, THEIR OFFICERS, AGENTS, AND EMPLOYEES BE
LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT UNDER ANY THEORY OF TORT,
CONTRACT, STRICT LIABILITY, OR OTHER LEGAL OR EQUITABLE THEORY FOR LOST PROFITS,
SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES.
21. PATENTS, TRADEMARKS AND TRADE SECRET INFRINGEMENT INDEMNITY
21.1 CONVERGENT shall defend, at its expense, any action brought against CSI to
the extent that it is based upon a claim that any Hardware, Custom Software, or
Documentation infringes a patent, copyright, or violates any Third-Party trade
secret or proprietary right and shall pay all costs and damages finally awarded
against CSI, provided that CONVERGENT is given prompt written notice of such
claim and is given information, reasonable assistance, and sole authority to
defend or settle the claim.
21.2 If any such action is brought, or in CONVERGENT's opinion is likely to be
brought, then CONVERGENT may at its election (i) obtain for CSI the right to
continue using the Hardware, Custom Software, or Documentation; (ii) replace or
modify such so that it becomes noninfringing; or (iii) if such remedies are not
reasonably available, accept CSI's return of the Hardware, Custom Software, or
Documentation, and grant CSI a refund for the Hardware, Custom Software or
Documentation involved, based upon its straight line depreciated value over the
life of the product as determined by CONVERGENT including CSI's expenses and
costs in defending such action, providing CSI follows the requirements of this
section and such costs are authorized by CONVERGENT.
21.3 CONVERGENT shall have no obligation under this section if the alleged
infringement or violation is based upon the use of the Hardware, Custom
Software, or Documentation in combination with other hardware, software, or
documentation not furnished by CONVERGENT or if such claim arises from
CONVERGENT compliance with CSI's designs, specifications, or instructions, or
from CSI's modification of the Hardware, Custom Software, or Documentation.
21.4 CONVERGENT shall have no liability for infringement of patents, copyrights,
or violation of trade secrets or proprietary rights except as expressly provided
in this section.
22. GOVERNING LAW
This Agreement will be governed by the laws of the State of Indiana, without
regard to the conflicts of laws principles of such state.
23. ENFORCEMENT EXPENSES
In the event of a breach or threatened breach of any term or provision of this
Agreement, the nonbreaching Party shall be entitled to all of its remedies
available at law or in equity and in addition shall be entitled to be reimbursed
for all of its costs and expenses in enforcing this Agreement, including, but
not limited to, reasonable attorneys' fees. This section shall survive
expiration or termination of this Agreement for any reason.
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24. SCHEDULES
The following Schedules are attached hereto, form a part hereof, and are
incorporated herein by this reference:
Schedule A: Scope of Work
Schedule B: Fixed-Price Payments
Schedule C: Billing Terms for Estimated Work
Schedule D: Project Assumptions
Schedule E: Project Incentive Plan
Schedule F: Change Order Procedure
Schedule G: Electronic Funds Transfer
Schedule H: Project Schedule
Schedule I: Deliverable Acceptance Procedures
25. CAPTIONS AND HEADINGS
The captions and headings herein are for convenience only and in no way shall be
used in the interpretation or construction of this Agreement.
26. WAIVER OF COMPLIANCE
Any failure by any Party hereto to enforce at any time any term or condition of
this Agreement shall not be considered a waiver of that Party's right to later
enforce each and every term and condition hereof.
27. ASSIGNMENT; BINDING EFFECT
This Agreement may not be assigned by either Party hereto without the prior
written consent of the other Party which shall not be unreasonably withheld.
This Agreement shall be binding upon and inure to the benefit of each of the
Parties and its respective successors and permitted assigns.
28. DELAYS
Any loss, damage, or delay in, or failure of, performance by either Party shall
not constitute a default hereunder or be a ground for termination of this
Agreement, or give rise to any claims for damage against either Party if such
loss, damage, delay, or failure is attributable in whole or in part to any cause
beyond the control of the other Party. These causes include, but are not limited
to, acts or omissions of the claiming Party causing delay, acts of God or the
public enemy, compliance with any order, decree, or request of any governmental
authority, fires, floods, explosions, accidents, riots, strikes, labor
difficulties, or other concerted acts of workmen, or any other cause not within
the reasonable control of the other Party. In the event of the occurrence of any
such delay, the time for the performance by the other Party of its Work shall be
extended for a period of time equivalent to the time attributable to such delay.
29. SEVERABILITY
If any provision of this Agreement or the application thereof to any Party or
circumstance shall be declared invalid, illegal, or unenforceable, the remainder
of this Agreement shall be valid and enforceable to the extent permitted by
applicable law. In such event, the Parties shall use their best efforts to
replace the invalid or unenforceable provision with a provision that, to the
extent
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permitted by applicable law, achieves the purposes intended under the invalid or
unenforceable provision.
30. INSURANCE
30.1 During the term of this Agreement, CONVERGENT shall provide and maintain at
its expense the following kinds of insurance with limits of liability as set
forth below:
Insurance Limits of Liability
--------- -------------------
Xxxxxxx'x Compensation Statutory
Commercial General Liability $2,000,000
Automobile Liability $1,000,000
Excess Liability $10,000,000
30.2 CONVERGENT agrees to provide CSI with a certificate of insurance evidencing
the coverages required above and stating the policy numbers and inception and
expiration dates of all policies. This certificate of insurance shall also
provide for 10 days prior notice to CSI in the event of cancellation of the
policy. Said certificate shall be furnished to CSI prior to the commencement of
any Work under this Agreement.
31. INDEPENDENT CONTRACTOR STATUS
The Parties to this Agreement are independent contractors, and none of the
provisions of this Agreement shall be interpreted or deemed to create any
relationship between such Parties other than that of independent contractors.
Nothing contained in this Agreement shall be construed to create a relationship
of employer and employees, master and servant, principal and agent, or
co-venturers between CSI and CONVERGENT, between CSI and any employee of
CONVERGENT, or between CONVERGENT and any employee of CSI. CSI shall have no
right to control or direct the details, manner, or means by which CONVERGENT
performs the technical and management consulting services hereunder, provided
that such technical and management consulting services shall be performed to
CSI's reasonable satisfaction. In performing such services, CONVERGENT shall
have no control over or management authority with respect to CSI or its
operations.
32. RIGHT OF AUDIT
CONVERGENT records for expenses incurred and records of time charged by
individuals to the project shall be open to inspection by CSI during normal
business hours during the duration of this Agreement.
33. ALTERNATE DISPUTE RESOLUTION (ADR)
33.1 If a dispute arises between the Parties relating to this Agreement, the
Parties agree to use the following procedure prior to either Party pursuing
other available remedies:
(a) A meeting shall be held promptly between the Parties, attended by
individuals with decision-making authority regarding the dispute, to
attempt in good faith to negotiate a resolution of the dispute.
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(b) If, within thirty (30) days after such meeting, the Parties have not
succeeded in negotiating a resolution of the dispute, they will
jointly appoint a mutually acceptable neutral person not affiliated
with either of the Parties (the "Neutral") to act as a mediator. If
the Parties are unable to agree on the Neutral within twenty (20)
days, they shall seek assistance in such regard from the CPR Institute
for Dispute Resolutions ("CPR"). The fees of the Neutral and all other
common fees and expenses shall be shared equally by the Parties.
(c) The mediation may proceed in accordance with CPR's Model Procedure for
Mediation of Business disputes, or the Parties may mutually establish
their own procedure.
(d) The Parties shall pursue mediation in good faith and in a timely
manner. In the event the mediation does not result in resolution of
the dispute within sixty (60) days, then, upon seven (7) days written
notice to the other Party, either Party may suggest another form of
ADR, e.g., a mini-trial or summary jury trial, or may pursue other
available remedies.
33.2 All ADR proceedings shall be strictly confidential and used solely for the
purposes of settlement. Any materials prepared by one Party for the ADR
proceedings shall not be used as evidence by the other Party in any subsequent
litigation; provided, however, the underlying facts supporting such materials
may be subject to discovery.
33.3 Each Party shall, except as otherwise provided herein, be responsible for
its expenses, including legal fees, incurred in the course of any arbitration
proceedings. The fees of the Neutral arbitrator shall be divided evenly between
the Parties.
33.4 CONVERGENT shall carry on and be paid for the technical and management
services not in dispute and maintain the estimated schedule for Services during
any arbitration or litigation proceedings, unless otherwise agreed by CONVERGENT
or CSI in writing.
33.5 Each Party fully understands its specific obligations under ADR provisions
of the Agreement. Neither Party considers such obligations to be vague or in any
way unenforceable, and neither Party will contend to the contrary at any future
time or in any future proceedings.
33.6 PPIf CSI issues a purchase order, memorandum or other instruments covering
the goods or services provided under this Agreement, it is agreed that such
document is for CSI's internal purposes only unless it is accepted in writing by
CONVERGENT, in which case all terms and conditions contained therein which are
additional to or inconsistent with this Agreement shall be of no force and
effect. The Agreement shall not be varied other than by an instrument in writing
of subsequent date hereto, executed by the duly authorized representatives of
both Parties. The Agreement shall be construed in accordance with, and its
performance governed by the laws of the State of Iowa excluding its laws on
conflict of law.
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IN WITNESS WHEREOF, the Parties have executed this Agreement as of the Effective
Date.
CINERGY SERVICES, INC. CONVERGENT GROUP CORPORATION
By: /s/ XXXXX X. XXXXXX By: /s/ XXXXX X. XXXXXXXXXX
------------------------------- -----------------------------
Name: Xxxxx X. Xxxxxx Name: Xxxxx X. Xxxxxxxxxx
-----------------------------
Title: President - Energy Delivery Title: CEO
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