EXHIBIT 10.4
SERVICE AGREEMENT: AUTOMATE: 2000/(R)/ SERVICES
Agreement dated, executed and effective as of this 18/th/ day of November, 1997,
by and between Peritus Software Services, Inc., a Massachusetts corporation
having its principal place of business at 0 Xxxxxxx Xxxxxx, Xxxxxxxxx, XX 00000-
3485 ("Peritus"), and Great American Insurance Company ("CLIENT"), an Ohio
corporation, having its principal place of business at 00 Xxxx Xxxxxx Xxxxxx,
Xxxxxxxxxx, Xxxx 00000
WHEREAS, Peritus is in the business of providing Automate:2000/(R)/ services;
and
WHEREAS, CLIENT desires to receive such services, subject to the terms and
conditions of this Agreement.
NOW THEREFORE, in consideration of the following mutual promises contained
herein, the Parties agree in good faith to the following obligations and duties:
SECTION 1- DEFINITIONS:
1.1: "Automate:2000/(R)/" herein shall refer to the service, provided by
Peritus, of identifying portions of software code that may cause
errors relating to the change in the calendar year to 2000 A.D. ("Year
2000 Type Errors") and/or correcting such identified portions so as to
prevent the occurrence of Year 2000 Type Errors.
1.2: "Delivery Personnel" herein shall refer to the Employees of Peritus
who provide the Automate:2000/(R)/ service to CLIENT.
1.3: "LOC" herein shall refer to the lines of code for which the
Automate:2000/(R)/ service is used, or the lines of code which are
treated by or processed by Peritus pursuant to this Agreement. A line
of code is an 80 character string of computer software code that is
not solely a comment line or is not solely a blank line. Copybooks and
other code that might be used many times within the application are
counted only once.
1.4: "Service Order" or "SO" herein shall refer to an agreement between
Peritus and CLIENT in which the parties agree that Peritus will
provide the Automate:2000/(R)/ service to CLIENT with respect to a
specific number of LOC or for a specific project. A form of the
Service Order is attached at Attachment A.
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1.5: "Domain Expert" herein shall refer to person who is an expert in the
program language, program code, program coding practices, program
architecture and use of such program which is the subject matter of an
SO.
1.6: "Acceptance" herein shall refer to confirmation from CLIENT that
goods or services provided by Peritus to CLIENT are reasonably
acceptable to
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CLIENT in terms of quality, performance and in time of delivery, and
further is a statement that Peritus has complied with all of its
material obligations with regard to the goods or services for which
Acceptance is provided.
1.7: "Accepted" herein shall refer to the fact that the relevant goods or
services provided by Peritus to CLIENT have been such that CLIENT has
given Acceptance to Peritus.
1.8: "Rejection" shall refer to an affirmative statement from CLIENT that
goods or services provided by Peritus to CLIENT are not reasonably
acceptable to CLIENT in terms of quality, performance and in time of
delivery, and further is a statement that Peritus has not complied
with all of its material obligations with regard to the goods or
services for which Acceptance is requested.
1.9: "Year 2000 Corrected" herein refers to the status of the applicable
CLIENT software as such that no Year 2000 Type Errors affect the
ability of the applicable CLIENT software to correctly identify,
manipulate, and perform calculations on dates later than December 31,
1999, provided it is used in accordance with its associated
documentation and provided that when it is linked up to other
software and hardware, such software and hardware factor in the
calendar date on the same conditions as, and are compatible with such
applicable CLIENT software. However, notwithstanding anything to the
contrary in the foregoing, the applicable CLIENT software may be
considered "Year 2000 Corrected" even if it is not capable of
correctly identifying, manipulating, and performing calculations on
dates later than December 31, 1999 if such incapability is a result
solely of the applicable CLIENT software not being able to correctly
identify, manipulate, and perform calculations on dates due to
mishandling or miscoding of leap year calculations and related
adjustments.
1.10: "SA" herein shall refer to this Agreement.
1.11: "Frozen Code" shall refer to a copy of the LOC Peritus provides to
CLIENT under this Agreement that is unchanged by any entity other
than Peritus.
SECTION 2- SERVICE ORDERS:
2.1: A Service Order shall be subject to the terms and conditions of this
Agreement and shall identify itself as an SO governed by this
Agreement. In the event that terms of this Agreement conflict with
the terms of any Service Order, the terms of this Agreement shall
control and take precedence unless the Service Order explicitly, and
with reference to the specific terms in this Agreement which are to
be affected, states otherwise.
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2.2: Peritus and CLIENT acknowledge that this Agreement sets forth the
terms under which Peritus may provide the Automate:2000/(R)/ service
to CLIENT, but does not by itself create any obligation to provide
the Automate:2000/(R)/ service to CLIENT. The specific nature and
amount of the Automate:2000/(R)/ services to be provided to CLIENT
shall be as specified in Service Orders executed pursuant and subject
to this Agreement. Hence, notwithstanding anything to the contrary
herein, any services or Delivery Personnel that Peritus is to provide
or supply under this Agreement shall only be provided in accordance
with this Agreement and an effective Service Order.
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2.3: Peritus shall be entitled to assume that each executed SO has an
effective purchase order associated with such SO.
SECTION 3- CONTRACT ASSUMPTIONS:
3.1- PRICING ASSUMPTIONS:
Peritus and CLIENT agree and acknowledge that they have made and
used the assumptions set forth below in this Section 3.1 (hereafter
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the "Assumptions") to formulate and create the pricing described in
the applicable SO that will be applicable to each and every
separately applicable Service Order unless a particular SO provides
otherwise. The Assumptions are as follows:
i) that all assessment/ impact analysis SO will be priced at a
time and material cost,
ii) that all of the software source code provided for which the
Automate:2000/(R)/ services are to be provided involve
software code written in the IBM OS/VS COBOL or the IBM VS
COBOL II standard computer language (excluding nested
programs and intrinsic functions), and
iii) that the number of LOC referenced in any SO is materially
correct.
SECTION 4- LEVELS OF SERVICE, WARRANTIES AND RELATED MATTERS:
4.1: In fulfillment of any SO, Peritus shall:
i) be responsible for the packaging and return of LOC to be
provided to CLIENT,
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ii) assign a "Peritus Project Manager" who will be responsible
for managing, along with the CLIENT Project Manager, quality
control, communications, planning, support and service
issues relevant to the Automate:2000/(R)/ services being
provided to CLIENT under the SOs,
iii) assign a "Peritus Team Leader" for each SO who will
technically evaluate the subject matter of the SO and
develop a plan to perform the SO, in addition to managing
the Peritus Renovation Engineers assigned to perform the
obligations of Peritus pursuant to the applicable SO, and
iv) provide two "Renovation Engineers" for each SO to provide
the Automate:2000/(R)/ services.
4.2- WARRANTY AND RELATED REMEDIES:
When Peritus delivers LOC to CLIENT, both Peritus and CLIENT shall
maintain a copy of such LOC as Frozen Code for at least 210 days
after such delivery.
For the period beginning when Peritus delivers LOC to CLIENT for
testing and ending 210 days after such delivery, Peritus warrants
that the applicable delivered LOC in its Frozen Code state shall be
Year 2000 Corrected. This warrant does not extend to LOC which is
altered by any party other than Peritus. In order to enforce the
aforementioned warranty, it shall be the responsibility of CLIENT to
identify in the Frozen Code the claimed defect which CLIENT believes
breaches this Section 4.2.
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4.3- SOLE AND EXCLUSIVE REMEDIES FOR SECTION 4.2 WARRANTY:
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CLIENT'S SOLE AND EXCLUSIVE REMEDY (PROVIDED THAT SUCH DOES NOT FAIL
OF ITS ESSENTIAL PURPOSE) FOR A BREACH OF THE WARRANTY PROVIDED
UNDER SECTION 4.2 HEREIN SHALL BE THAT DURING THE PERIOD FOR WHICH
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THE WARRANTY IS IN EFFECT, PERITUS SHALL CORRECT ALL DOCUMENTED AND
REPEATABLE DEFECTS WHICH ARE IN THE APPLICABLE DELIVERED LOC IN ITS
FROZEN CODE STATE WHICH CLIENT HAS EXPLICITLY IDENTIFIED FOR PERITUS
(BY REFERENCE TO THE APPLICABLE PORTION OF THE FROZEN CODE) AS
CAUSING A BREACH OF THE SECTION 4.2 WARRANTY.
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Subject to the limitations on liability in this Agreement, nothing
in this Section 4.3 limits CLIENT's right to seek to recover direct
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damages, provided that CLIENT has first sought remedy as set forth
in the preceding paragraph, such remedy has failed of its essential
purpose, and further that CLIENT takes reasonable steps to mitigate
CLIENT's damages and related costs.
Peritus shall not charge CLIENT pursuant to Section 4.4 for
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delivery personnel (or for the travel and living expenses of such)
utilized to fulfill the peritus' obligations set forth in this
Section 4.3.
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4.4: Intentionally left blank.
4.5: Intentionally left blank.
4.6: In fulfillment of any SO, CLIENT shall:
i) appoint an employee of CLIENT to act as "CLIENT Project
Manager", to represent CLIENT in the execution of the SO,
and to be responsible for managing along with the Peritus
Project Manager, quality control, communications, planning,
support and service issues relevant to the
Automate:2000/(R)/ services being provided to CLIENT under
the SOs,
ii) conduct "assessments" and "inventories" prior to when such
may be required for Peritus to act to fulfill its
obligations under this Agreement or an SO,
iii) collect and provide to Peritus computer code prior to when
such may be required for Peritus to act to fulfill its
obligations under this Agreement or an SO,
iv) provide to Peritus access to Domain Experts of CLIENT as
necessary when such may be required for Peritus to act to
fulfill its obligations under this Agreement or an SO, and
v) conduct all testing and all Acceptance testing of LOC or
other items provided by Peritus to CLIENT.
4.7- TIMELY PERFORMANCE:
If Peritus has knowledge that anything prevents or threatens to
prevent the timely performance of services or work to be performed
under this Agreement, Peritus shall promptly notify CLIENT's
Technical Representative thereof and include all relevant
information concerning the delay or potential delay.
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4.8- WORK DONE BY OTHERS:
If any of the services to be provided under this Agreement is
dependent on work done by others, Peritus shall inspect and promptly
report to CLIENT's Technical Representative any defect that renders
such other work unsuitable for Peritus' proper performance. Peritus'
silence shall constitute approval of such work as fit and suitable
for Peritus' performance.
4.9- TOOLS AND EQUIPMENT:
Unless otherwise specifically provided in this Agreement, Peritus
shall provide all labor, tools, and equipment ("Tools") for
performance of this Agreement. Should Peritus actually use any Tools
owned or rented by CLIENT or its customers, Peritus acknowledges
that Peritus accepts Tools "as is, where is,", that neither CLIENT
nor it customer have any responsibility for the condition or state
of repair of the tools and that Peritus shall have risk of loss and
damage to such Tools. In such case, Peritus agrees not to remove
Tools from CLIENT's or its customers' premises, to use Tools only
for the work or services to be provided pursuant to this Agreement
and to return Tools to CLIENT or its customer upon completion of
use, or at such earlier time as CLIENT or its customer may request,
in the same condition as when received by Peritus, reasonable wear
and tear excepted.
4.10- CARE AND CUSTODY OF PROPERTY:
"Movable goods" in this Section 4.10 does not refer to LOC. Peritus
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shall have the sole and exclusive care, custody and control of all
CLIENT's movable goods in the possession of Peritus pursuant to this
Agreement, and shall be fully responsible for any and all damage to
or loss of such goods, however occurring, during the time they are
in Peritus' care, custody and control. When CLIENT orders the goods
for delivery to Peritus or delivers goods in its possession to
Peritus, Peritus' responsibility hereunder shall commence upon
tender of delivery at the point of destination and shall continue
uninterrupted until the goods are delivered to CLIENT or its
designees. CLIENT shall have no responsibility for any damage to or
loss of any goods ordered by Peritus until they have been delivered
to CLIENT or its designees. The liability of Peritus for any and all
damage to or loss of goods of CLIENT in Peritus' possession shall be
based on the full replacement value of the goods as reasonably
determined by CLIENT.
Whenever loss or damage has occurred to the goods prior to receipt
by Peritus, Peritus shall promptly note the damage or loss on all
copies of the
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delivery receipt. Each copy of the delivery receipt shall be signed
by Peritus and the carrier's. Peritus shall request the delivery
carrier to inspect damaged goods and secure an inspection report or
waiver of inspection from the carrier. Peritus shall thereupon
notify CLIENT of the loss or damage.
4.11- INSPECTION:
Provided that CLIENT does not interfere with Peritus' operations,
during the normal business hours of Peritus CLIENT's Representatives
shall have reasonable access to work being provided pursuant to this
Agreement for the purpose of inspection or a quality review and
Peritus shall provide safe and proper facilities for such purpose.
4.12- RIGHT OF ENTRY AND PLANT RULES:
Each party shall have the right to enter the premises of the other
party during normal business hours with respect to the performance
of this Agreement, subject to all plant rules and regulations,
security regulations and procedures and U.S. Government clearance
requirements if applicable. Peritus shall become acquainted with
conditions governing the delivery, receipt and storage of materials
at the site of the work or services provided pursuant to this
Agreement so that Peritus will not interfere with CLIENT's
operations. Storage space will not necessarily be provided adjacent
to the site of the work or services provided pursuant to this
Agreement. Therefore, Peritus shall be expected to select, uncrate,
remove and transport materials from the storage areas provided.
CLIENT is not responsible for the safekeeping of Peritus' property
on CLIENT premises. Peritus shall not stop, delay or interfere with
CLIENT's work schedule without the prior approval of CLIENT's
Representative, which approval shall not be unreasonably withheld.
Peritus shall provide and maintain sufficient covering and take any
other precautions necessary to protect CLIENT's stock, equipment and
other property from damage due to Peritus' performance of the work
or services provided pursuant to this Agreement.
4.13- PERITUS EMPLOYEES:
As used in Sections 4.13 and 4.14 only, the term "Peritus Employee"
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means anyone performing on behalf of Peritus, the work or services
provided pursuant to this Agreement, including but not limited to
the Peritus' employees, consultants, representatives, agents,
subcontractors, and subcontractors' subcontractors at all tiers. It
is agreed that all persons provided by Peritus to perform Peritus'
obligations under this Agreement are not employees or agents of
CLIENT, and CLIENT shall not exercise any direct control or
supervision over Peritus Employees but CLIENT's Technical
Representative will be available for consultation.
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Peritus shall be the sole entity responsible for receiving
complaints from Peritus Employees regarding their assignments and
for notifying Peritus Employees of the termination or change of
their assignments. CLIENT has the right at any time (prior to and
after assignment to perform Peritus' obligations under this
Agreement) and for any reason to reject or to have Peritus remove
specific Peritus' Employees that have been performing Peritus
obligations under this Agreement upon notice to Peritus. Upon such
notice, Peritus shall, at CLIENT's request, replace the Peritus
Employee(s). CLIENT's aforementioned right or rejection and/or
removal shall not be used in such a manner as to unreasonably
inhibit Peritus' ability to perform its obligations under this
Agreement. In the event of any staffing change, CLIENT shall not be
charged for the time required to train the replacement. The amount
of noncompensatory training time, if any, shall be mutually
determined by Peritus and CLIENT's Technical Representative. At
CLIENT's request, Peritus shall provide evidence to CLIENT to
document the qualifications and experience of Peritus' Employees
assigned to perform Peritus obligations under this Agreement and
CLIENT may interview such Peritus Employees prior to when they start
been performing Peritus obligations under this Agreement.
Peritus further agrees that any of Peritus' Employees who is or
becomes a `leased employee' (in the U.S. as defined in Section
414(n) of the Internal Revenue Code) of CLIENT during the term of
this Agreement, shall not be covered by, and shall be excluded from
participation in, any employee benefit plan maintained by CLIENT.
Peritus shall indemnify and save CLIENT harmless from and against
any losses, damages, claims, demands, suits, and liabilities that
arise out of, or results from, any failure by Peritus to perform its
obligations under this paragraph. Peritus shall also indemnify and
save CLIENT harmless from any entitlement, assertion, or claim,
which any of Peritus's employees might have or might make relative
to rights or privileges in any CLIENT employee benefit plan and
which arises, in whole or in part, out of work or services rendered
under this Agreement.
4.14- IDENTIFICATION CREDENTIALS:
CLIENT may, at its discretion, require Peritus' Employees to exhibit
identification credentials, which CLIENT may issue, in order to gain
access to CLIENT's premises for the performance of this Agreement.
If, for any reason, any of Peritus' Employees are no longer
performing relative to this Agreement, Peritus shall promptly inform
CLIENT's Technical Representative in the speediest manner possible.
Notification shall be followed by the prompt delivery to CLIENT's
Technical Representative of the identification credentials involved
or a written statement of the reasons why the Identification
Credentials cannot be
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returned. Peritus shall be liable for any damage or loss sustained
by CLIENT if such identification credentials are not returned to
CLIENT.
4.15- NON-EXCLUSIVE SERVICES:
It is expressly understood and agreed that this Agreement neither
grants to Peritus an exclusive right or privilege to sell to CLIENT
any or all material or services of the type described in this
Agreement which CLIENT may require, nor (except as set forth herein)
requires the purchase of any material or services from Peritus by
CLIENT. It is, therefore, understood that CLIENT may contract with
other manufacturers other than Peritus for the procurement of
comparable material or services.
Except as set forth herein, Peritus agrees that purchases by CLIENT
under this Agreement shall neither restrict the right of CLIENT to
cease purchasing nor require CLIENT to continue any level of such
purchases.
SECTION 5- ACCEPTANCE:
5.1: Within 120 days of delivery of LOC, goods or services from Peritus,
CLIENT shall test and then provide either Acceptance or Rejection of
them. In the event that CLIENT does not provide Rejection within
such 120 day period, then CLIENT will be deemed to have provided
Acceptance of such LOC, goods or services. Acceptance does not
affect CLIENT's rights or remedies under Section 4.2 or 4.3.
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5.2: In providing Rejection with regard to any LOC, goods or services
received from Peritus, CLIENT shall provide a detailed explanation
of why Rejection was provided.
5.3: Rejection shall be determined by CLIENT in CLIENT's sole, but
reasonable judgment. Rejection shall be deemed reasonable only if
Peritus has:
i) not correctly fixed identified Year 2000 Type Errors,
ii) introduced new errors and defects in the LOC due to attempts
to correct Year 2000 Type Errors,
iii) been materially late in performing its obligations under
this Agreement (and any SOs) provided that such result is
solely the result of Peritus' performance and not due to the
actions or inactions of CLIENT or any other party, or
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iv) failed to identify at least 99% of the variables that are
sensitive to the calendar year in such a way as to cause a
Year 2000 Type Error.
SECTION 6- USE OF LOC:
6.1: Except for testing to determine whether to provide Acceptance,
CLIENT hereby agrees that in no event shall it use any LOC or other
items received from Peritus pursuant to this Agreement (and any SO)
unless CLIENT has previously Accepted such LOC or items. In no event
shall CLIENT use any LOC for any purpose if CLIENT has provided or
has been deemed to have provided Rejection of such LOC.
SECTION 7- DISCLAIMER OF WARRANTIES; LIMITATION OF LIABILITY; RELATED MATTERS:
7.1: Except as set forth in Section 4.2, CLIENT AGREES THAT PERITUS, IN
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PROVIDING LOC, WORK, DELIVERABLES, SOFTWARE, SERVICES, COMPUTER CODE
AND/OR OTHER MATERIALS TO CLIENT, IS PROVIDING SUCH "AS IS" AND
PERITUS IS NOT AND DOES NOT MAKE ANY WARRANTIES TO CLIENT. IT IS
HEREBY ACKNOWLEDGED THAT PERITUS SPECIFICALLY DISCLAIMS THE IMPLIED
WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY AND
NON-INFRINGEMENT, IN REGARD TO THE LOC, SOFTWARE AND/OR OTHER
MATERIALS PROVIDED TO CLIENT, AS WELL AS IN REGARD TO ANY WORK,
DELIVERABLES, SOFTWARE, SERVICES, COMPUTER CODE AND/OR OTHER
MATERIALS PROVIDED BY PERITUS TO CLIENT.
7.2: IT IS FURTHER AGREED THAT, TO THE MAXIMUM EXTENT PERMITTED UNDER
APPLICABLE LAW, THERE WILL BE NO LIABILITY FOR PERITUS TO CLIENT FOR
ANY CONSEQUENTIAL, INCIDENTAL, PUNITIVE OR OTHER INDIRECT DAMAGES
(INCLUDING BUT NOT LIMITED TO LOST PROFITS, LOST OPPORTUNITIES AND
LOST DATA) RESULTING FROM THE PROVISION OF ANY LOC, WORK,
DELIVERABLES, SOFTWARE, SERVICES, COMPUTER CODE AND/OR OTHER
MATERIALS TO CLIENT.
7.3: TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, CLIENT AGREES
THAT PERITUS SHALL NOT BE LIABLE FOR ANY CLAIMS FOR DIRECT OR ACTUAL
DAMAGES, HARM OR FOR ANY RESULTING MONETARY DAMAGES, IN EXCESS OF
THE AMOUNTS PAID TO PERITUS UNDER THE APPLICABLE SERVICE ORDER.
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AFTER DECEMBER 31/ST/, 2000, IT IS FURTHER AGREED THAT, TO THE
MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, THERE WILL BE NO
LIABILITY FOR PERITUS TO CLIENT FOR ANY DAMAGES, INCLUDING BUT NOT
LIMITED TO DIRECT, ACTUAL, CONSEQUENTIAL, INCIDENTAL, PUNITIVE OR
OTHER INDIRECT DAMAGES (INCLUDING LOST PROFITS, LOST OPPORTUNITIES
AND LOST DATA) RESULTING FROM THE PROVISION OF LOC, SOFTWARE,
SERVICES, COMPUTER CODE AND/OR OTHER MATERIALS TO CLIENT.
7.4: Notwithstanding anything to the contrary in Sections 7.1, 7.2, 7.3
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or 7.4, no limit of liability in Sections 7.1, 7.2, 7.3 or 7.4 shall
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be applicable with regard to damages resulting from i) personal
injury (including death) caused by Peritus, ii) real or personal
property damage caused by Peritus, or iii) the willful misconduct of
Peritus. Nothing in Sections 7.1, 7.2, 7.3 or 7.4 alters or amends
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Peritus' obligations under Section 7.6.
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7.5- INDEMNITY:
Peritus agrees to indemnify and save harmless CLIENT, its affiliates
and its customers and their officers, directors, employees,
successors and assigns (all hereinafter referred to as
"Indemnified") from and against any losses, damages, claims,
demands, suits, liabilities, and expenses (including reasonable
attorneys' fees) that arise out of or result from: (1) injuries or
death to persons or damage to property, including theft, in any way
arising out of or occasioned by, caused or alleged to have been
caused by or on account of the performance of services performed by
Peritus or persons furnished by Peritus, (2) assertions under
Workers' Compensation or similar acts made by persons furnished by
Peritus or by any subcontractor of Peritus, or by reason of any
injuries to such persons for which indemnified would be responsible
under workers' compensation or similar acts if the persons were
employed by indemnified, (3) any breach by Peritus of Sections 7.6,
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12, and 13.4.
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Peritus agrees to defend CLIENT, at CLIENT's request, against any
such claim, demand, or suit of the nature described in this Section
7.5. CLIENT agrees to notify peritus within a reasonable time of any
written claims or demands against CLIENT for which Peritus is
responsible under this Section 7.5.
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7.6- INFRINGEMENT:
Peritus shall indemnify and save harmless the Indemnified from and
against any losses, damages, liabilities, fines, penalties, and
expenses (including reasonable attorneys' fees) that arise out of or
result from any and all claims (1) of infringement of any U.S.
patent, copyright, trademark
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or trade secret right, or other intellectual property right, private
right, or any other proprietary or personal interest, and (2) are
related by circumstances to the existence of this Agreement or
performance under or in contemplation of it (an "Infringement
Claim"). If the Infringement Claim arises solely from Peritus'
adherence to the indemnified's written instructions regarding
services or tangible or intangible goods provided by Peritus
("Items") and if the Items are not (1) commercial items available on
the open market or the same as such items, or (2) items of Peritus's
designated origin, design or selection, the Indemnified shall
indemnify Peritus. The Indemnified or Peritus (at the Indemnified 's
request) shall defend or settle, at its own expense, any demand,
action or suit on any Infringement Claim for which it is the
indemnitor under this Section 7.6 and each shall timely notify the
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other of any assertion against it of any Infringement Claim and
shall cooperate in good faith with the other to facilitate the
defense of any such claim.
7.7- IMPLEADER:
Peritus shall not implead or bring an action against CLIENT based on
any claim by any person for personal injury or death to an employee
of CLIENT for which CLIENT has previously paid or is obligated to
pay worker's compensation benefits to such employee or claimant and
for which such employee or claimant could not otherwise bring legal
action against CLIENT.
7.8- INSURANCE:
Peritus shall maintain and cause Peritus's subcontractors to
maintain during the term of this Agreement: (1) Workers'
Compensation insurance as prescribed by the law of the state or
nation in which this Agreement is performed, (2) employer's
liability insurance with limits of at least $500,000 for each
occurrence; (3) automobile liability insurance if the use of motor
vehicles is required, with limits of at least $1,000,000 combined
single limit for bodily injury and property damage per occurrence,
(4) Comprehensive General Liability ("CGL") insurance, including
Blanket Contractual Liability and Broad Form Property damage, with
limits of at least $1,000,000 combined single limit for personal
injury and property damage per occurrence; (5) if the furnishing to
CLIENT (by sale or otherwise) of products or material is involved,
CGL insurance endorsed to include products liability and completed
operations coverage in the amount of $5,000,000 per occurrence; and
(6) Errors and Omissions Insurance in the amount of at least
$1,000,000 per claim with an annual aggregate of at least $3,000,000
inclusive of legal defense costs. All CGL and automobile liability
insurance shall designate CLIENT, its affiliates, and its officers,
directors, and employees (all referred to as "CLIENT") as additional
insured. All such insurance must be primary and non-
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contributory and required to respond and pay prior to any other
insurance or self insurance available. any other coverage available
to CLIENT shall apply on an excess basis.
Peritus agrees that Peritus, Peritus's insurer(s) and anyone
claiming by, through, under, or in Peritus's behalf shall have no
claim, right of action, or right of subrogation against CLIENT and
its customers based on any loss or liability insured under the
foregoing insurance. At the request of CLIENT, Peritus and Peritus's
subcontractors shall furnish certificates or adequate proof of the
foregoing insurance including, if specifically requested by CLIENT,
copies of the endorsements and policies. CLIENT shall be notified in
writing at least thirty (30) days prior to cancellation of or any
change in the policy. Insurance companies providing coverage under
this agreement must be rated by A-M Best with at least an A- rating.
SECTION 8- FEES:
8.1: For each Service Order, the fees due Peritus shall be calculated as
set forth in the applicable SO, subject to readjustment pursuant to
Section 8.2.
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8.2- READJUSTMENTS:
In the event that for any Service Order, the Assumptions set forth
in Section 3.1 are not accurate and the applicable Service Order
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does not specifically address such deviation from the Assumptions,
then Peritus and CLIENT shall negotiate in good faith regarding a
readjustment of the services to be provided under the Service Order
or readjustment of fees for such services.
In the event that Peritus and CLIENT cannot reach a mutually
agreeable readjustment, Peritus shall have at its option the right
to cancel all further work and obligations under the applicable
Service Order and receive payment with regard to work and services
previously delivered.
8.3- GENERAL PAYMENT TERMS:
CLIENT shall pay fees and other payments due to Peritus, including
but not limited to reimbursement of expenses, within thirty (30)
days of the issuance by Peritus of an invoice.
Unless or until CLIENT designates otherwise in writing, invoicing
shall be sent to the following address:
Attn: Xxxxxxx X. Xxxxxxx, Vice President, Personal Lines Address:
Great American Insurance Company--49 Xxxx Xxxxxx Xxxxxx, Xxxxxxxxxx,
Xxxx 00000
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LOC and related materials returned to CLIENT shall be delivered free
from all claims, liens, and charges whatsoever. CLIENT reserves the
right to require, before making payment, proof that all parties
furnishing labor and materials for the LOC and related materials
have been paid.
CLIENT shall reimburse Peritus only for the following tax payments
with respect to transactions under this Agreement unless CLIENT
advises Peritus that an exemption applies: state and local sales and
use taxes, as applicable. Taxes payable by CLIENT shall be billed as
separate items on Peritus' invoices and shall not be included in
Peritus' prices. CLIENT shall have the right to have Peritus contest
any such taxes that CLIENT deems improperly levied at CLIENT's
expense and subject to its direction and control.
8.4- DEFAULT SERVICE ORDER PAYMENT TERMS:
Fees shall be due Peritus under each and any Service Order as
follows;
i) 30% of the total of all such fees upon signing of the
applicable Service Order,
ii) 30% of the total of all such fees upon completion of the
"identification stage" of the Automate:2000/(R)/ service
provided under the applicable Service Order,
iii) 30% of the total of all such fees upon delivery by Peritus
of the LOC to CLIENT for Acceptance and testing by CLIENT,
and
iv) 10% of the total of all such fees upon the earlier of a)
Acceptance by CLIENT or b), 120 days after the delivery of
the LOC to CLIENT for Acceptance and testing by CLIENT if
CLIENT has neither provided final Acceptance or Rejection in
writing to Peritus prior to the end of such 120 day period.
v) All SO which are time and material based will be billed
monthly at actual incurred costs
14
8.5- OTHER ADJUSTMENTS:
On a monthly basis, the fees due under this Agreement (and hence
also under any SO) shall be recomputed to adjust for any additional
services or work performed or not performed, items provided or not
provided or expenses incurred. If the adjustment results in a
greater amount of money being due Peritus, Peritus shall invoice
CLIENT for such fees. If the adjustment results in a lesser amount
of money being due that is less than what Peritus has already
received for such services or items, then Peritus shall credit such
amounts to CLIENT's future debts, or, if requested in written by
CLIENT, return such excess amounts to CLIENT.
8.6- AUDIT:
Peritus shall maintain complete and accurate accounting records, in
a form in accordance with generally accepted accounting practices,
to substantiate Peritus' charges (if and only if such charges are
calculated on a time and material basis or are for reimbursements)
under this Agreement. Such records shall include, but not be limited
to, time cards, original receipts, job cards, attendance cards, job
summaries, and travel and living expense reports. All payments, if
any, made by CLIENT shall be subject to final adjustments as
determined by such audit(s). Peritus shall retain such records
relating to this Agreement for a period of two (2) years from the
date of final payment for services authorized herein. Reimbursable
expenses for which receipts are not available for review shall be
repaid promptly by Peritus to CLIENT.
CLIENT and its authorized agents and representatives shall have
access to such records no more than once per calendar quarter during
normal business hours during the term of this Agreement and during
the respective periods in which Peritus is required to maintain such
records as provided in this clause.
SECTION 9- GENERAL RESPONSIBILITIES OF CLIENT:
9.1- CONDUCT OF BUSINESS:
CLIENT shall pay all expenses, including without limitation, taxes
incurred by it in connection with its business and will be solely
responsible for the acts and expenses of its employees and agents.
9.2- CLIENT'S REPRESENTATIVES:
CLIENT's "Technical Representative" under this Agreement shall be
______________. Unless otherwise notified in writing, Peritus shall
assume that all inspection and Acceptance, as is set forth in this
15
Agreement, of services and work rendered under this Agreement shall
be conducted by the Technical Representative or others as may be
delegated in writing by the Technical Representative. CLIENT's
"Purchasing Representative" shall be ________________. CLIENT may
replace or change the representatives mentioned in this Section 9.2
-----------
by providing written notice to Peritus.
SECTION 10- TERM:
10.1: This Agreement shall be deemed effective as of the date of execution
set forth above and shall remain in effect for a term ending January
1/st/, 2001 unless sooner terminated in accordance with the terms of
this Agreement. The term of this Agreement may be extended by mutual
written consent of Peritus and CLIENT.
SECTION 11- TERMINATION:
11.1- Termination of an SO:
Any SO may be terminated and the obligations thereunder discharged;
(i) by either party, without cause, by giving 180 days prior
written notice of termination to the other party;
(ii) by either party, effective immediately and without notice,
if either party shall assign or attempt to assign the SO
without the prior written approval of the other;
(iii) by either party, upon written notice, if the other party
shall breach any other material provision of the SO or this
Agreement (other than Section 11.1(ii) ), and such breach is
-----------------
not cured within 30 days after notice thereof from the other
party; or
(iv) by either party, upon written notice, if there is (A) a
dissolution, termination of existence, liquidation,
insolvency or business failure of the other party, or the
appointment of a custodian or receiver of any party of such
party's property, if such appointment is not terminated or
dismissed within 30 days; (B) a composition or an assignment
or trust mortgage for the benefit of creditors by the other
party (other than solely as assignment of monies due); (C)
the commencement with respect to the other party of any
proceeding under the United States Bankruptcy Code or any
other federal or state bankruptcy, reorganization,
receivership, insolvency or other similar law, or any law of
any applicable country or jurisdiction, affecting the
16
rights of creditors generally, which proceeding, if
initiated against such party, is not dismissed within 30
days; or (D) if the other party evidences an inability to
pay debts as they become due, unless adequate assurance of
such ability to pay is provided within thirty (30) days of
such notice.
11.2- TERMINATION OF THIS AGREEMENT:
If a proceeding is commenced under any provision of the United States
Bankruptcy Code, voluntary or involuntary, by or against either
party, and this Agreement has not been terminated, the non-debtor
party may file a request with the bankruptcy court to have the court
set a date within sixty (60) days after the commencement of the case,
by which the debtor party will assume or reject this Agreement, and
the debtor party shall cooperate and take whatever steps necessary to
assume or reject the Agreement by such date.
If and only if all SOs have either previously expired or been
terminated or are contemporaneously terminated or expire at the time
this Agreement is to terminate, then this Agreement may be terminated
at any time, by either party, immediately upon notice.
11.3- RIGHTS:
Neither party shall be entitled to any compensation or claim for
goodwill or other loss, cost or expense which either of them may
suffer or claim to have suffered solely by reason of termination or
expiration of this Agreement or an SO, provided, however, that
nothing herein shall operate to limit any other rights or remedies
available to a non-defaulting party at law or in equity upon the
breach of this Agreement or an SO by the other party.
SECTION 12- CONFIDENTIAL INFORMATION:
12.1- CONFIDENTIAL INFORMATION:
Peritus and CLIENT acknowledge that as a result of their
relationship, they may be exposed to or receive the confidential
and/or proprietary information of the other. The party disclosing
the confidential and/or proprietary information shall be referred to
as the "Discloser". The party receiving the confidential and/or
proprietary information shall be referred to as the "Recipient".
"Confidential Information" herein refers to the confidential and/or
the proprietary information of the party disclosing the information.
This Confidential Information may include but is not limited to
software in source code and/or object code forms, documentation,
program libraries, program listings, methods of processing,
technical
17
processes, operational methods, tools, trade secrets,
client lists, methodologies, financial information (including
information regarding sales and profits) and training materials.
Confidential Information also includes information which the
Discloser is obligated to maintain the confidentiality of, such as
the confidential information of parties with whom the Discloser
conducts business.
12.2- NOTICE THAT INFORMATION RECEIVED FROM DISCLOSER IS CONFIDENTIAL
INFORMATION:
Information which Discloser discloses to Recipient shall be
considered Confidential Information if:
(i) such information is designated or indicated in writing as
proprietary or confidential by the Discloser, prior to or at
the time any such information is disclosed. Notwithstanding
the foregoing, information that is disclosed orally,
visually, in writing or by other means, to the Recipient by
the Discloser without a written indication or designation of
its confidential or proprietary nature shall constitute
Confidential Information if the Discloser, within thirty
(30) days after such disclosure, notifies the Recipient, in
writing, that the information disclosed is Confidential
Information and provides a brief description of the
information sufficient to identify it;
(ii) it is material containing or incorporating Peritus' training
methodologies or is material relating to the
Automate:2000/(R)/ service, the PCA software, the
AutoEnhancer/2000/(TM)/ software, or other related software;
or
(iii) is source code for CLIENT's computer software application
and any related information as well as any information
relative to CLIENT's plans for Year 2000 compliance.
12.3- EXCEPTIONS:
Notwithstanding the foregoing Section 12.2, Confidential Information
------------
shall not include any information to the extent that it:
(i) is or becomes a matter of public knowledge without the fault
of the Recipient; or
(ii) was lawfully obtained and known to Recipient prior to the
disclosure to it by Discloser; or
(iii) was developed independently by Recipient; or
18
(iv) was rightfully disclosed to Recipient by a third party which
is not under an obligation to maintain such information in
confidence; or
(v) is disclosed under operation of law, government regulation,
or court order, provided that Recipient first gives Discloser
notice and a reasonable opportunity to secure confidential
protection of such Confidential Information if such notice is
not prohibited by the applicable law, government regulation
or court order.
Furthermore, information which is disclosed by either Peritus or
CLIENT to the other for the first time after and only after the
termination or expiration of this Agreement shall not be considered
Confidential Information under the terms of this Agreement.
12.4: Recipient shall maintain the confidentiality of all Confidential
Information, holding such information in strict confidence, using at
least such degree of care as it uses to protect its own Confidential
Information of a similar nature.
12.5: Recipient will not, directly or indirectly, disclose any
Confidential Information to anyone outside of Recipient, except with
Discloser's prior written consent.
12.6: Recipient shall not make use of any Confidential Information for
any purpose or for the benefit of anyone or any other entity other
than Discloser, except as permitted by this Agreement and an SO.
12.7: Recipient shall be permitted to disclose the Confidential
Information only to its employees and agents ("Employees") having a
need to know such information in connection with the performance of
this Agreement and an SO, and who are bound by a written agreement,
enforceable by the Recipient, that obligates the Employees to comply
with the provisions set forth in this Section 12. Recipient shall
----------
instruct all such Employees as to Recipient's and their obligations
under this Agreement.
12.8: Recipient, upon termination of this Agreement or at any time
Discloser may so request, shall deliver promptly to Discloser, or,
at Discloser's option, shall destroy all memoranda, notes, records,
reports, and other documents, media and materials (and all copies
thereof) regarding or including any Confidential Information which
Recipient may then possess, have under its control or in its
custody.
12.9: Recipient acknowledges that the disclosure of Confidential
Information will cause irreparable injury to Discloser. Discloser
shall, therefore, be entitled to injunctive relief upon a disclosure
or threatened disclosure of any Confidential Information, without a
requirement that Discloser prove
19
irreparable harm or the posting of a bond. Without limitation of the
foregoing, Recipient shall advise Discloser immediately in the event
that it learns or has reason to believe that any person or entity
which has had access to Confidential Information has violated or
intends to violate the terms of this Agreement or an SO with regard
to confidentiality, and will reasonably cooperate with Discloser in
seeking injunctive relief against any such person or entity. This
provision shall not in any way limit such other remedies as may be
available to Discloser at law or in equity.
12.10: The terms and conditions of this Agreement shall be considered the
Confidential Information of Peritus and Peritus shall be considered
the Discloser of this Confidential Information.
12.11- IDENTIFICATION:
Peritus shall not, without CLIENT's prior written consent, engage
in advertising, promotion or publicity related to this Agreement, or
make public use of any identification in any circumstances related
to this Agreement, except as may be required to comply with law,
court order administrative order or government regulation.
"Identification" means any copy or semblance of any trade name,
trademark, service xxxx, insignia, symbol, logo, or any other
product, service or organization designation, or any specification
or drawing of CLIENT or its affiliates or evidence of inspection by
or for any of them. Peritus shall remove or obliterate any
identification prior to any use or disposition of any material
rejected or not purchased by CLIENT, and, shall indemnify, defend
(at CLIENT's request) and save harmless CLIENT and their affiliates
and each of their officers, directors and employees from and against
any losses, damages, claims, demands, suits, liabilities, fines,
penalties and expenses (including reasonable attorneys' fees)
arising out of Peritus' failure to so remove or obliterate.
In the event that Peritus requests to make any Identification,
CLIENT shall promptly review and consider such request.
SECTION 13- GENERAL PROVISIONS:
13.1- ENTIRE AGREEMENT:
This Agreement and the attachments to this Agreement constitute the
entire agreement between the parties with reference to the subject
matter hereof and supersedes all prior agreements. No waiver,
consent, modification or change of the terms of this Agreement or of
the attachments to this Agreement shall bind either party unless it
is in writing signed by both parties by their duly authorized
representatives. There are no understandings, agreements,
representations or warranties, express or
20
implied, with respect to the subject matter hereof except as
expressly set forth in this Agreement and the attachments to this
Agreement. Only the terms and conditions of this Agreement and the
attachments to this Agreement shall govern the transactions
contemplated hereunder, notwithstanding any additional, different or
conflicting terms which may be contained in any other document
provided by one party to the other.
13.2- RELEASES VOID:
Neither party shall require (i) waivers or releases of any personal
rights or (ii) execution of documents, if any of the foregoing
conflict with the terms of this Agreement, from employees,
representatives, or customers of the other in connection with visits
to its premises and both parties agree that no such releases,
waivers or documents shall be pleaded by them or third persons in
any action or proceeding.
13.3- FORCE MAJEURE:
Neither party shall be held responsible for any delay or failure in
performance of any part of this Agreement (or any SO) to the extent
such delay or failure is caused by fire, flood, explosion, war,
strike, embargo, governmental requirement, civil or military
authority, act of God, or other similar causes beyond its control and
without the fault or negligence of the delayed or nonperforming party
or its subcontractors ("force majeure conditions"). Notwithstanding
the foregoing, Peritus' liability for loss or damage to CLIENT's
material in Peritus' possession or control shall not be modified by
this clause. If any force majeure condition occurs, the party delayed
or unable to perform shall give immediate notice to the other party,
stating the nature of the force majeure condition and any action
being taken to avoid or minimize its effect, and the party affected
by the other's delay or inability to perform may elect to: (1)
suspend this Agreement or any SO for the duration of the force
majeure condition and (i) at its option buy, sell, obtain, or furnish
elsewhere material or services to be bought, sold, obtained, or
furnished under this Agreement or SO (unless such sale or furnishing
is prohibited under this Agreement) and deduct from any commitment
the quality bought, sold, obtained, or furnished or for which
commitments have been made elsewhere and (ii) once the force majeure
condition ceases, resume performance under this Agreement or SO with
an option in the affected party to extend the period of this
Agreement or SO up to the length of time the force majeure condition
endured and/or (2) when the delay or nonperformance continues for a
period of at least fifteen (15) days, terminate, at no charge, this
Agreement or an SO or the part of it relating to material not already
shipped or services not already performed. Unless written notice is
given within forty-five (45) days after the affected party is
notified of the force majeure condition, (1) shall be deemed
selected.
21
13.4- COMPLIANCE WITH LAWS:
Peritus and all persons furnished by Peritus shall comply at their
own expense with all applicable federal, state, local and foreign
laws, ordinances, regulations, and codes, including those relating to
the use of chlorofluorocarbons, and including the identification and
procurement of required permits, certificates, licenses, insurance,
approvals, and inspections in performance under this Agreement.
13.5- CHOICE OF LAW:
This Agreement and all SOs shall be governed by the laws of Ohio,
excluding however its conflicts of laws principles. This Agreement
and all SOs shall be deemed when executed to have been made in Ohio.
The CLIENT agrees to submit to the venue and jurisdiction of the
state and federal courts of Ohio in disputes concerning this
Agreement and/or any SOs.
13.6- NOTICES:
Any notice, demand or other communication required, or which may be
given unless otherwise specifically provided for in this Agreement,
shall be in writing and shall be effective: five (5) days after
mailed, if sent by certified, postage prepaid U.S. mail; upon receipt
of confirmation, if delivered by confirmed facsimile; upon delivery
if delivered in person; or the day after dispatch if sent by an
overnight courier service that provides the sender with written
record of delivery, and shall be addressed to the respective parties
as follows:
To CLIENT:
Great American Insurance Company
00 Xxxx Xxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxxxx, Xxxx 00000
To Peritus:
Peritus Software Services, Inc.
0 Xxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Attn: Xxxxx Xxxxxx
CC: General Counsel
The above addresses and contact persons may be changed at any time by
giving thirty (30) days prior written notice.
22
13.7- GOVERNMENT CONTRACT PROVISIONS:
The following provisions regarding equal opportunity, and all
applicable laws, rules, regulations and executive orders
specifically related thereto, including applicable provisions and
clauses from the Federal Acquisition Regulation and all supplements
thereto are incorporated in this Agreement as they apply to work
performed under specific U.S. Government contracts: 41 CFR 60-1.4,
Equal Opportunity; 41 CFR 60-1.7, Reports and Other Required
Information; 41 CFR 60-1.8, Segregated Facilities; 41 CFR 60-250.4,
Affirmative Action for Disabled Veterans and Veterans of the Vietnam
Era (if in excess of $10,000); and 41 CFR 60-741.4, Affirmative
Action for Disabled Workers (if in excess of $2500) wherein the
terms "contractor" and "subcontractor" shall mean "Peritus". In
addition, SOs placed under this Agreement containing a notation that
the material or services are intended for use under Government
contracts shall be subject to such other Government provisions
printed, typed or written thereon, or on the reverse side thereof,
or in attachments thereto.
13.8- SEVERABILITY:
If any of the provisions of this Agreement or an SO shall be invalid
or unenforceable, such invalidity or unenforceability shall not
invalidate or render unenforceable the entire Agreement (or SO), but
rather the entire Agreement (or SO) shall be construed as if not
containing the particular invalid or unenforceable provision or
provisions, and the rights and obligations of each party shall be
construed and enforced accordingly.
13.9- WAIVER:
The failure of either party at any time to enforce any right or
remedy available to it under this Agreement or otherwise with
respect to any breach or failure by the other party shall not be
construed to be a waiver of such right or remedy with respect to any
other breach or failure by the other party.
13.10- SECTION HEADINGS:
The headings of sections are inserted for convenience only and are
not intended to affect the meaning or interpretation of this
Agreement.
References to a section without inclusion of the section numbers
after a decimal place shall refer all such sections containing the
section number that is prior to the decimal place. For example, a
reference to Section 2 shall be understood and deemed to be
---------
reference to Sections 2.1, 2.2 and 2.3.
-------------------------
23
13.11- MEDIATION:
If a dispute arises out of or relates to this Agreement, or its
breach, and the parties have not been successful in resolving such
dispute through negotiation, the parties agree to attempt to resolve
the dispute through mediation by submitting the dispute to a sole
mediator selected by the parties or, at anytime at the option of a
party, to mediation by the American Arbitration Association ("AAA").
Each party shall bear its own expenses and an equal share of the
expenses of the mediator and the fees of the AAA. The parties, their
representatives, other participants and the mediator shall hold the
existence, content and result of the mediation in confidence. If
such dispute is not resolved by such mediation, the parties shall
have the right to resort to any remedies permitted by law. All
defenses based on passage of time shall be tolled pending the
termination of the mediation. Nothing in this clause shall be
construed to preclude any party from seeking injunctive relief in
order to protect its rights pending mediation. A request by a party
to a court for such injunctive relief shall not be deemed a waiver
of the obligation to mediate.
13.12- ASSIGNMENT AND SUBCONTRACTING BY PERITUS:
Peritus shall not assign any right or interest under this Agreement
(excepting solely for monies due or to become due) or delegate or
subcontract any work, services or other obligation to be performed
or owed under this Agreement without the prior written consent of
CLIENT. Any attempted assignment, delegation or subcontracting in
contravention of the above provisions shall be void and ineffective.
Any assignment of monies shall be void and ineffective to the extent
that (1) Peritus shall not have given CLIENT at least thirty (30)
days prior written notice of such assignment or (2) such assignment
attempts to impose upon CLIENT obligations to the assignee
additional to the payment of such monies, or to preclude CLIENT from
dealing solely and directly with Peritus in all matters pertaining
to this Agreement including the negotiation of amendments or
settlements of charges due. All work or services performed by
Peritus' subcontractor(s) at any tier shall be deemed work or
services performed by Peritus.
13.13- SURVIVAL OF ADDITIONAL OBLIGATIONS:
Sections 1, 2, 3, 4.2, 4.3, 5, 6, 7, 8, 9, 11.3, 12, 13.1, 13.2,
----------------------------------------------------------------
13.4, 13.5, 13.8, 13.9, 13.10, 13.11 and 13.13 of this Agreement
----------------------------------------------
shall survive the expiration or termination of this Agreement and
continue to be enforceable.
24
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed by
their duly authorized representatives.
GREAT AMERICAN INSURANCE COMPANY PERITUS SOFTWARE SERVICES, INC.
(CLIENT)
By: _________________________ By:____________________________
Name: ______________________ Name: _________________________
Title: ______________________ Title: ________________________
25
ATTACHMENT A
------------
SERVICE ORDER #____
-------------------
( GOVERNED BY THE SERVICE AGREEMENT: AUTOMATE: 2000/(R)/ SERVICES)
Agreement dated, executed and effective as of this _______ day of ___________,
1998, (the "Effective Date") by and between Peritus Software Services, Inc., a
Massachusetts corporation having its principal place of business at 0 Xxxxxxx
Xxxxxx, Xxxxxxxxx, XX 00000-0000 ("Peritus"), and Great American Insurance
Company ("CLIENT"), an Ohio corporation, having its principal place of business
at 00 Xxxx Xxxxxx Xxxxxx, Xxxxxxxxxx, Xxxx 00000.
WHEREAS, Peritus is in the business of providing Automate:2000/(R)/ services;
and
WHEREAS, CLIENT desires to receive such services, subject to the terms and
conditions of the SA and this Agreement.
NOW THEREFORE, in consideration of the following mutual promises contained
herein, the Parties agree in good faith to the following obligations and duties:
SECTION 1- DEFINITIONS:
1.1: "SA" herein shall refer to the agreement entitled "Service
Agreement:Automate:2000/(R)/ Services", executed by CLIENT and
Peritus, and dated as of November 18/th/, 1997.
1.2: The terminology and definitions set forth in the SA, if used in this
Agreement shall have the same meaning and interpretation.
SECTION 2- WORK TO BE PERFORMED:
2.1: Peritus shall provide the Automate:2000/(R)/ service for the following
computer programs or applications:
______________________________________________________
______________________________________________________
______________________________________________________
2.2: The total number of LOC for which Peritus shall provide services or
resources pursuant to Section 2.1 of this SO herein is
-----------
_______________LOC. The applicable fee for such services shall be
____________.
2.3: The following activities are scheduled, subject to revision by CLIENT
and Peritus, as follows;
Action/Event Date for completion/Sign-off
------------ ----------------------------
i) _____ business days from____________
___________
ii) _____ business days from____________
__________
2.4- ADDITIONAL SERVICE WORK:
Peritus shall provide the following additional services or items:
______________________________________________________
______________________________________________________
2.5: Peritus shall be paid for the services or items provided pursuant to
Section 2.4 of this SO as follows:
-----------
______________________________________________________
______________________________________________________
SECTION 3- APPLICABILITY OF TERMS OF SA:
3.1: The SA provides definitions, terms and conditions that are to govern
the provision of products and/or services as defined and described by
a "Service Order", also referred to as an "SO". This Agreement is a
Service Order and hereby is governed by and incorporates the
definitions, terms and conditions of the SA. In the event that terms
of this Agreement conflict with the terms of the SA, the terms of the
SA shall control and take precedence over the terms and conditions of
this Agreement.
SECTION 4- ASSOCIATED PURCHASE ORDER:
4.1: In addition to any other applicable purchase orders, approval for
payments with respect to work, services or goods provided under this
SO are made
or will be made under the purchase order numbered or entitled as
_________________.
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed by
their duly authorized representatives.
GREAT AMERICAN INSURANCE COMPANY PERITUS SOFTWARE SERVICES, INC.
(CLIENT)
By: _________________________ By:____________________________
Name: ______________________ Name:__________________________
Title: ______________________ Title:_________________________
