MASTER SERVICES AGREEMENT
Xxxxx Systems Corporation ("Xxxxx Systems") and California Power Exchange
Corporation, a California nonprofit public benefit corporation ("Client") and
Debtor-in-Possession in case number LA-01-16577-ES, pending in the United States
Bankruptcy Court for the Central District of California, Los Angeles Division
enter into this Master Services Agreement ("Agreement") as of March 10, 2001
(the "Effective Date"). Xxxxx Systems shall perform the services, provide the
resources, and acquire and provide to Client the third party software, equipment
and services, all as described in task orders to be executed by the parties from
time to time ('Task Orders") on the terms and conditions set forth in such Task
Order and this Agreement. Each Task Order shall be generally in the form of the
Exhibit attached hereto. Upon execution of a Task Order, it shall be subject to
and part of this Agreement.
1. Proect Managers. Each party shall designate one of its employees to be its
Project Manager under each Task Order, who shall act for that party on all
matters under the Task Order. Each party shall notify the other in writing of
any replacement of a Project Manager. The Project Managers for each Task Order
shall meet as often as either one requests to review the status of the Task
Order.
2. Charies: Time and Method of Payment.
(a) Client will pay Xxxxx Systems in advance for all services, resources
and third party software, equipment and services provided under each Task
Order on a time and materials basis at Xxxxx Systems' then-current
commercial rates.
(b) Xxxxx Systems shall invoice Client twice a month and at least five
business days (to the extent practicable) before the beginning of each
"Service Period" (("Service Period" is defined as either the first half
or second half of a calendar month) for an amount equal to (i) all
service fees and other charges associated with the services, resources
and third party software, equipment and services to be provided in
connection with each Task Order during that Service Period, plus (ii) any
adjustments to the service fees and other charges associated with the
services, resources and third party software, equipment and services to
provided in connection with each Task Order since the previous invoice,
including but not limited to out-of-pocket expenses.
(c) Client shall pay to Xxxxx Systems the amount set forth in each
invoice on or before the first day of the Service Period in which the
services, resources and third party software, equipment and services will
be provided. Late payments shall accrue interest from the due date at the
lesser of (i) one and a half percent per month or (ii) the maximum rate
allowed by law. Client shall deliver a check to Xxxxx Systems' Project
Manager at Client's offices in Pasadena on the due date and Xxxxx Systems
shall not charge Client for an overnight courier.
3. Out-of-Pocket Expenses. Client shall pay or reimburse Xxxxx Systems for
its reasonable out-of-pocket travel and travel related expenses incurred
in connection with each Task Order,
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provided that travel outside of the greater Los Angeles area has been approved
in advance by Client. Unless otherwise agreed, any expenses shall be reimbursed
according to CalPX Expense and Reimbursement Policy in effect on the Effective
Date.
4. Taxes. There shall be added to any charges payable by Client under this
Agreement, and Client shall pay or reimburse to Xxxxx Systems, amounts equal to
any taxes, however designated or levied based upon such charges, the services,
resources and third party software, equipment and services provided in
connection with each Task Order or this Agreement, including state and local
taxes, and any taxes or amounts in lieu thereof paid or payable by Xxxxx Systems
in respect of the foregoing, excluding franchise taxes and taxes based on the
net income of Xxxxx Systems. Each party shall cooperate with the other in
minimizing any applicable tax and, in connection therewith, Client shall provide
Xxxxx Systems any resale certificates, information regarding out-of-state use of
materials, services or sales, or other exemption certificates or information
reasonably requested by Xxxxx Systems.
5. Cost of Living Adjustment. The rates and charges stated in each Task Order
with a term longer than one year will be increased (unless such rates and
charges are periodically adjusted to reflect Xxxxx Systems' then-current
commercial rates and charges), effective as of each anniversary of that Task
Order's effective date by the percentage that the Private Industry, Wages and
Salaries, 12-Month Percent Change, Not Seasonally Adjusted, index ("ECI") for
the United States as published by the Bureau of Labor Statistics of the
Department of Labor, for such anniversary exceeds the ECI for the previous such
anniversary. If the Bureau of Labor Statistics stops publishing this index or
substantially changes the content or format thereof, the parties will substitute
another mutually acceptable price index.
6. Termination. This Agreement or any Task Orders may be terminated as follows:
(a) If Client defaults in the payment of any amount due under any Task
Order and does not cure the default within one business day after
receiving written notice of such default, then Xxxxx Systems may
terminate the Task Order or this Agreement (and thereby all Task Orders)
by providing written notice of termination to Client;
(b) If either party materially defaults in the performance of any term of
a Task Order or this Agreement with respect to a specific Task Order
(other than by nonpayment) and does not substantially cure such default
within 30 days after receiving written notice of such default, then the
non-defaulting party may terminate the Task Order by providing ten days
prior written notice of termination to the defaulting party; or
(c) Either party may terminate this Agreement by providing the other
party with at least 30 days prior written notice of termination if there
are no outstanding Task Orders.
All Task Orders shall terminate immediately upon termination of the
Agreement.
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7. Confidentiality.
(a) Confidential Information. Each receiving party shall use at least
the same degree of care, but no less than a reasonable degree of
care, to avoid unauthorized disclosure or use of each disclosing
party's Confidential Information, including any third party
Confidential Information disclosed by the disclosing party, as it
employs with respect to its own Confidential Information of
similar importance. Each receiving party may disclose Confidential
Information only to the other party to this Agreement and its own
officers, directors, and employees and to its consultants,
subcontractors and advisors who reasonably need to know it. Each
receiving party shall be responsible to the disclosing party for
any violation of this Agreement by its officers, directors,
employees, consultants, subcontractors or advisors. No receiving
party may print or copy, in whole or in part, any documents or
other media containing a disclosing party's Confidential
Information, other than copies for its officers, directors,
employees, consultants or advisors who are working on the matter,
without the prior consent of the disclosing party. No receiving
party may use a disclosing party's Confidential Information for
competing with the disclosing party or for any purpose not in
furtherance of this Agreement. The term "Confidential Information"
is defined to mean, with respect to Client and Xxxxx Systems, all
information, documents, records and data, in whatever form or
medium (including, without limitation, (i) verbal statements
summarized in writing within 10 business days, (ii) printed and
electronic forms, (iii) handwritten notes or summaries, (iv)
portions of any such items) regarding each other party's (a
"disclosing party") methodologies, financial affairs, business
activities and plans and records identified as confidential in
Client's tariff, operating manual and Records Availability Policy
communicated by a disclosing party to a receiving party.
(b) Certain Permitted Disclosures. Each of Xxxxx Systems and Client
shall, however, be permitted to disclose relevant aspects of the
other party's Confidential Information to its respective officers,
agents, subcontractors and employees to the extent that such
disclosure is reasonably necessary for the performance of its
duties and obligations under this Agreement; provided, however,
that such party shall take reasonable measures to prevent, and
shall remain responsible for, the disclosure of Confidential
Information of the other party in contravention of the provisions
of this Agreement by such officers, agents, subcontractors (except
as otherwise specifically provided in this Agreement) and
employees.
(c) Disclosures Required by Law. If a receiving party is requested, as
part of an administrative or judicial proceeding, to disclose any
of a disclosing party's Confidential Information, the receiving
party shall, to the extent permitted by applicable law, promptly
notify the disclosing party of such request and cooperate with the
disclosing party in seeking a protective order or similar
confidential treatment for such Confidential Information. The
seeking of protective orders shall be at the expense of the party
whose Confidential Information is at issue.
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(d) Exclusions. Confidential Information shall not include information
that (1) was known by the receiving party without an obligation of
confidentiality prior to its receipt from the disclosing party,
(2) is independently developed by the receiving party without
reliance on Confidential Information, (3) is or becomes publicly
available without a breach of this Agreement by the receiving
party, (4) is disclosed to the receiving party by a third person
who is not required to maintain its confidentiality, or (5) is
required to be disclosed by reason of legal, accounting or
regulatory requirements beyond the reasonable control of the
receiving party.
(e) Obligations upon Termination or Expiration. Promptly after the
expiration or termination of this Agreement, each receiving party
shall return or, with the consent of the disclosing party, destroy
all of the disclosing party's Confidential Information, including
any third party Confidential Information in the hands of either
party, except for (i) archive and backup copies that are not
readily accessible for use, and (ii) business records required by
law to be retained by the receiving party.
8. Client Obligations. Client will provide timely access to Client personnel,
systems and information required for Xxxxx Systems to perform its obligations
hereunder. Client shall provide to Xxxxx Systems' employees performing its
obligations hereunder at Client's premises, without charge, a reasonable work
environment in compliance with all applicable laws and regulations, including
office space, furniture, telephone service, and reproduction, computer,
facsimile and other necessary equipment, supplies, and services. With respect to
all third party hardware or software operated by or on behalf of Client, Client
shall, at no expense to Xxxxx Systems, obtain all consents, licenses and
sublicenses necessary for Xxxxx Systems to perform under the Task Orders and
shall pay any fees or other costs associated with obtaining such consents,
licenses and . sublicenses. Client shall indemnify, defend, and hold Xxxxx
Systems harmless from and against all third party claims and expenses, including
reasonable attorneys' fees and expenses, arising by reason of any failure or
delay by Client to obtain the consents, licenses or sublicenses necessary for
Xxxxx Systems to perform under the Task Orders.
9. Warrantv/Disclaimer of Warranty. Xxxxx Systems warrants that its services
shall be performed by qualified personnel in a manner consistent with good
practice in the information technology services industry. If Xxxxx Systems
breaches this warranty, it shall supply services to correct or replace the work
at no charge. THE REMEDY SET FORTH IN THIS SECTION IS CLIENT'S EXCLUSIVE REMEDY
FOR BREACH OF WARRANTY. XXXXX SYSTEMS DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR
IMPLIED, INCLUDING ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR
PURPOSE.
10. Third Party Goods. ALL THIRD PARTY SOFTWARE, HARDWARE AND SERVICES PROVIDED
BY XXXXX SYSTEMS UNDER ANY TASK ORDER IS PROVIDED "AS IS," BUT XXXXX SYSTEMS
WILL USE REASONABLE COMMERCIAL EFFORTS TO ASSIST CLIENT IN ENFORCING ANY THIRD
PARTY WARRANTY.
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11. Limitation of Liability Under the Agreement. Xxxxx Systems will have no
liability of any sort to Client for claims, actions and causes of action arising
out of, under, or in connection with this Agreement, except as such claims,
actions and causes of action arise out of a specific Task Order entered into by
the parties hereunder.
12. LIMITATION ON DIRECT DAMAGES. With respect to all claims, actions and causes
of action arising out of, under or in connection with a Task Order (including
claims, actions and causes of action arising out of, under or in connection with
this Agreement that arise out of such Task Order), regardless of the form of
action, whether in contract or tort (including negligence, strict liability or
otherwise) and whether or not such damages are foreseen, Xxxxx Systems'
liability will not exceed, in the aggregate, the total amount actually paid to
Xxxxx Systems by Client for services provided under such Task Order (excluding
amounts paid as reimbursement of expenses or taxes) during the month period in
which the first claim, action, or cause of action arose out of, under or in
connection with such Task Order.
13. LIMITATION ON TYPE OF DAMAGES. With respect to all claims, actions and
causes of action arising out of, under or in connection with this Agreement and
all Task Orders (except for Client's obligations to make payments under this
Agreement), regardless of the form of action, whether in contract or tort
(including negligence, strict liability or otherwise) and whether or not such
damages are foreseen, neither party will be liable for, any amounts for
indirect, incidental, special, consequential (including without limitation lost
profits, lost revenue, or damages for the loss of data) or punitive damages of
the other party or any third parties.
14. Statute of Limitations. Neither party may assert a claim against the other
party more than one year after the date that such claim arose.
15. Indemnification. Xxxxx Systems and Client shall each indemnify, defend and
hold the other harmless from all claims, damages, demands, liabilities, costs
and expenses, arising by reason of any claim for personal injury of any agent,
employee, customer or business visitor of the indemnitor or damage to tangible
property (other than data or information) owned or leased by the indemnitor,
without regard to which party caused such injury or damage; provided, however,
that indemnitee gives indemnitor: (a) prompt written notice of any such claims;
failure or delay to so notify indemnitor shall not relieve indemnitor from any
liability hereunder so long as the failure or delay shall not have prejudiced
the defense of such claim; (b) reasonable assistance in defending the claim; and
(c) sole authority to defend or settle such claim. The parties agree that Xxxxx
Systems will not assume and should not be exposed to the business and
operational risks associated with Client's business. Therefore, Client shall
indemnify, defend and hold Xxxxx Systems harmless from and against all third
party claims and expenses, including reasonable attorneys' fees and expenses,
arising by reason of the use by Client of the services, materials and resources
provided by Xxxxx Systems hereunder.
16. Waiver. No change, waiver, or discharge hereof shall be valid unless in
writing and signed by the party against which it is sought to be enforced. No
delay or omission by either party in exercising any right hereunder shall be
construed as a waiver. A waiver by either of the parties of any provision or
breach shall not be a waiver of any other provision or breach.
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17. Relationship of Parties. Xxxxx Systems is acting only as an independent
contractor and does not undertake, by this Agreement, any Task Order or
otherwise, to perform any obligation of Client, whether regulatory or
contractual, or to assume any responsibility for Client's business or
operations. Neither party shall act or represent itself, directly or by
implication, as an agent of the other, except as expressly authorized in a Task
Order. Xxxxx Systems has the sole right to supervise and manage its employees
and resources hereunder and to perform or cause the performance of all services
under this Agreement or any Task Order.
18. Force Maleure Neither party shall be liable for any failure or delay in its
performance (other than non-payment) due to circumstances beyond its reasonable
control, provided that it notifies the other party as soon as practicable and
uses reasonable commercial efforts to resume performance.
19. Severability. If any provision of this Agreement or any Task Order is
declared or found to be illegal, unenforceable or void, then the parties will be
relieved of all obligations arising under such provision, but only to the extent
that such provision is illegal, unenforceable or void, it being the intent and
agreement of the parties that this Agreement and any Task Order will be deemed
amended by modifying such provision to the extent necessary to make it legal and
enforceable while preserving its intent or, if that is not possible, by
substituting therefor another provision that is legal and enforceable and
achieves the same objective. If such illegal, unenforceable or void provision
does not relate to the payments to be made to Xxxxx Systems hereunder and if the
remainder of this Agreement or any Task Order will not be affected by such
declaration or finding and is capable of substantial performance, then each
provision not so affected will be enforced to the extent permitted by law.
20. Xxxxx Systems Know-How. Client acknowledges that, prior to the Effective
Date, Xxxxx Systems has acquired, conceived, developed or licensed, and after
the Effective Date will continue to acquire, conceive, develop or license,
certain architectures, concepts, industry knowledge, techniques, templates, and
works of authorship which embody copyrights, inventions, trade secrets and other
intellectual property relating to the type of services to be performed for
Client (collectively, the "Know-How"). Client desires Xxxxx Systems to apply its
Know-How in connection with the services hereunder, and acknowledges that
performance of the Services will enhance and expand the Know-How. Subject to the
confidentiality provisions of this Agreement, nothing in this Agreement or any
Task Order will impair Xxxxx Systems' right to use its Know-How or to acquire,
license, market, distribute, develop for itself or others or have others develop
for Xxxxx Systems similar technology performing the same or similar functions as
the technology and services contemplated by this Agreement or any Task Order.
21. Survival. Any sections of this Agreement that by their nature reasonably
should survive any termination or expiration of this Agreement, shall survive
any termination or expiration of this Agreement.
22. Attorneys' Fees. If either party sues the other in connection with this
Agreement, the prevailing party shall recover its reasonable attorneys' fees and
costs.
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23. Governing Law. The laws of California shall govern this Agreement without
giving effect to any rules of conflicts of law. Both parties waive their right
to a jury trial as to any or all of the issues arising out of or related to this
Agreement.
24. Media Releases. Neither party shall identify the other party in any media
releases, public disclosures or marketing material without the prior consent of
the other party, except for (i) any announcement intended solely for a party's
internal distribution, (ii) any listing of the other party as a client or vendor
of the other in confidential proposals, and (iii) any disclosure required by
law.
25. Assignment. Neither party may or can assign any of its rights and
obligations under this Agreement or any Task Order without the prior written
consent of the other, which consent will not be unreasonably withheld. Xxxxx
Systems may use subcontractors to perform work under this Agreement or any Task
Order provided that any subcontract shall contain confidentiality provisions
substantially similar to those herein.
26. Notices. Any notice under this Agreement shall be deemed delivered when
delivered in person, the day after being sent by Federal Express or comparable
overnight courier, or five days after being mailed by registered or certified
U.S. mail, return receipt requested, to the person designated at the address set
forth below. Either party may change its address by written notice to the other
party.
If to Xxxxx Systems: With a copy to:
Xxxxx Systems Corporation Xxxxx Systems Corporation
Attn: President Attn: General Counsel
00000 Xxxx Xxxxxxx Xxxxx 00000 Xxxx Xxxxxxx Xxxxx
Xxxxxx, Xxxxx 00000 Xxxxxx, Xxxxx 00000
If to Client:
California Power Exchange Corporation California Power Exchange Corporation
Attn: Chief Financial Officer Attn: Managing Attorney
000 Xxx Xxxxxx Xxxxxx, Xxxxx 000 000 Xxx Xxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxx, Xxxxxxxxxx 00000-0000 Xxxxxxxx, Xxxxxxxxxx 00000-0000
Xxxxxx X. Xxxxxxxxx
Jeffer, Mangels, Xxxxxx and Marmaro, LLP
2121 Avenue of the Stars, 00 Xxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000-0000
27. Entire Agreement. This Agreement and the Task Orders issued hereunder
constitute the final, entire, and exclusive agreement between the parties with
respect to the subject matter hereof and may be amended or modified only in
writing. In case of any inconsistency between
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this Agreement and a Task Order, the Task Order shall prevail with respect to
interpretation of that Task Order, except that no Task Order may survive
termination of this Agreement.
28. Effectiveness. This Agreement shall become effective upon the entry of final
and nonappealable order by the United States Bankruptcy Court:
(a) Approving Client's execution and performance of this Agreement,
(b) Providing that all payments hereunder due Xxxxx Systems shall have
administrative expense priority under 11 U.S.C. Section 503(b),
(c) Rejecting that certain Information Technology Services Agreement
between Xxxxx Systems and Client dated February 28, 2000, and
setting a bar date for the filing of claims created thereby, and
(d) Releasing Xxxxx Systems from any and all causes of action Client
may have under 11 U.S.C. Section 550.
Agreed by Client: Agreed by Xxxxx Systems:
CALIFORNIA POWER EXCHANGE XXXXX SYSTEMS CORPORATION
CORPORATION,
as Debtor-in Possession
By: /s/ By: /s/
Name: Name:
Date: Date:
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