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EXHIBIT 10.12
BASIC ORDERING AGREEMENT
THIS AGREEMENT ("Agreement") is hereby entered into on May __, 1999 (the
"Effective Date") by and between Alta Software, Inc., 00000 Xxxxxx Xxxxx Xxxx,
Xxxxxx, Xxxxxxxx 00000 ("Alta") and Equifax Secure, Inc., 0000 Xxxxxxxxx
Xxxxxx, X.X. Xxxxxxx, Xxxxxxx 00000 ("Equifax") subject to the following terms
and conditions. For purposes of this Agreement and any Addendum thereto, Alta
and Equifax shall be collectively referred to as the Parties, and each
individually as a Party.
1. General Undertaking. The Parties are entering into this Agreement to
establish a relationship whereby Equifax may, from time to time, commission
Alta to perform certain technical consulting, software design, development,
training, support or other professional or technical services agreed to by the
Parties.
2. Task Orders.
(a) Work to be performed under this Agreement shall be described
in a Task Order ("TKO"), which in each instance shall become effective and
accordingly be incorporated herein as an Addendum to this Agreement at the time
it is signed by the President of Alta and by an authorized representative of
Equifax. Such execution of a TKO shall represent a commitment by and between
Equifax and Alta whereby Equifax shall commission and pay Alta for, and Alta
shall perform, the services described in such TKO in accordance with the hourly
rates and terms, and subject to the conditions, set forth therein and in this
Agreement. Alta's workers shall maintain contemporaneous daily time records of
every hour spent and all tasks performed, which shall be submitted to Equifax
as written attachments to each invoice. Any total dollar amounts or time
schedules referenced in a TKO shall be considered reasonably accurate
estimates, subject to revision. Alta generally does not perform services on a
fixed price basis, so any exception must be separately negotiated in a TKO with
a clear Statement of Work.
(b) Quality assurance meetings will be held between the designated
representatives of the Parties on a regular basis as described in the project
management plan for each TKO, but in any event at least monthly. At a minimum,
the project management plan will provide for Alta to report to Equifax, in a
mutually agreed upon time frame and report format, orally and in writing, on
the following issues: (i) progress against milestones; (ii) a short description
of technical problems in meeting such milestones (if any); (iii) the proposed
recovery method, if needed, to meet next milestone; (iv) any potential schedule
delays in meeting next
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milestone; (v) detailed cost estimates incurred to date (including all hours
billed to Equifax in the previous week); and (vi) if applicable, detailed cost
estimates for suggested recovery methods to meet milestones or costs
attributable to schedule delay in meeting next milestone.
(c) To the extent reasonably required by Alta when Alta is
performing work at the Equifax site, Equifax shall provide the tools,
materials, equipment and other business items necessary to perform the services
as set forth in each TKO.
3. Term.
(a) Generally. This Agreement shall become effective on the
Effective Date and, unless terminated earlier in accordance with Section
3(b)("Early Termination of TKO"), Section 10(c) ("Acceptance Test and Remedy"),
or with Section 12 ('Default"), shall continue in full force and effect for a
period of one (1) year ("Term"), and shall automatically be renewed for
successive one (1) year Terms unless either Party gives the other Party written
notice within thirty (30) days prior to expiration of the then current Term
that the Agreement shall not be renewed; provided, however, that if at the time
such Party notifies the other in writing of its intent not to renew the
Agreement there is outstanding one or more TKOs, then the Term of the Agreement
shall be deemed automatically extended as needed to be coterminous with any
such outstanding TKO.
(b) Early Termination of TKO. The Parties agree that execution of
a TKO establishes a mutual commitment to the project described therein for the
stated duration or, if not stated, the reasonably anticipated duration of the
TKO. If Equifax determines for any reason that it does not want to complete a
TKO, Equifax may terminate the TKO for convenience by giving Alta a minimum of
thirty (30) days written notice of termination (the "Termination Notice"). If
there is an outstanding TKO, Alta may only terminate the TKO if Equifax fails
to cure a material breach of its obligations under this Agreement pursuant to
Section 12 (Default).
(c) Transitional Assistance by Alta. If Equifax determines, in
its sole discretion, that it needs transitional assistance with respect to one
or more outstanding TKOs (the "Transitional Assistance"), Equifax will give
Alta written notice of such need for the Transitional Assistance within five
(5) business days after Equifax delivers the Termination Notice to Alta (the
"Assistance Notice"). Alta hereby agrees that, upon delivery by Equifax of the
Assistance Notice, Alta shall provide to Equifax and its Affiliates, and
Equifax agrees to pay for, at the applicable rates hereunder and in accordance
with Section 3(c)(i) below, the Transitional Assistance. If Equifax is in
material breach of the payment obligations under this Agreement, Alta may
condition Transitional Assistance on payment or mutual resolution of
outstanding amounts due and receiving adequate assurance of
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prompt payment for the final period of performance, including Transitional
Assistance.
(i) The Transitional Assistance shall be performed as
follows:
(A) Within (5) business days after Equifax delivers the Assistance Notice,
the designated representatives of the Parties will need to assess and agree to
a written list of objectives, services, deliverables, milestones and schedules
that Alta will provide to Equifax and its Affiliates (the "Transitional Plan").
In the event that the Parties cannot complete the Transitional Plan in one
meeting, the designated representatives will set a schedule for finalizing the
Transitional Plan, which must be completed within thirty (30) days following
the date of the Termination Notice, unless otherwise agreed to in a writing
mutually executed by the Parties. If Equifax delivers the Assistance Notice,
each Party agrees that it will commit the reasonably required resources to (a)
finalize the Transitional Plan and (b) meet the objectives and schedule of the
Transitional Plan.
(B) Unless otherwise agreed to in a writing mutually executed by the
Parties, Alta shall commence providing the Transitional Assistance no later
than thirty (30) days following the date of the Termination Notice. Once the
Transitional Assistance begins, Alta agrees that it will provide the
Transitional Assistance for a period of thirty (30) days; provided, however,
that if during the third week of Transitional Assistance, Equifax determines,
in its reasonable discretion, that a critical component(s) of the Transitional
Plan will not be complete by the 30th day of Transitional Assistance, Equifax
will provide written notice thereof to Alta, whereupon Alta agrees that it will
continue to provide for an additional fifteen (15) day period, the reasonable
Transitional Assistance required to address such critical component(s).
(d) Effect of Termination. Termination shall have no effect on
Equifax's obligation to pay the applicable labor rate for services performed
prior to the effective date of termination (including any period of Transition
Assistance). Termination shall have no effect on the provisions of Section
3(c)("Transitional Assistance by Alta"), Section 5 ("Proprietary Rights to
Intellectual Property"), Section 6 ("Confidential Information"), Section 7
("Nonsolicitation"), Section 9 ("Warranties"), Section 10 ("Limitation of
Remedies & Liabilities"), Section 11 ("Notices") or other provision which by
its nature governs post-termination events.
4. Invoices, Payment, Certain Costs & Taxes.
(a) Generally. All services are rendered on a time and materials
basis and shall be invoiced monthly as work progresses. Invoices shall be
submitted monthly and shall be paid within thirty (30) days from date of
Equifax's receipt of the invoice.
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(b) Payment Disputes. If Equifax disputes any portion of an
invoiced amount, it shall give Alta's Chief Financial Officer notice within
fifteen (15) days after receiving the invoice of the amount in dispute and the
reasons for the dispute. Equifax shall pay the undisputed portion within the
original thirty (30) day payment period. The Parties shall promptly evaluate
the disputed amount and use their commercially reasonable efforts to resolve
the issue within such thirty (30) day payment period. Equifax may not withhold
or "setoff" any undisputed amounts due and Alta reserves the right to cease
work without prejudice if undisputed amounts are not paid when due. Alta may
contest withheld payments by invoking the dispute resolution procedures set
forth in Section 18 ("Dispute Resolution").
(c) Late Payment. Extension of trade credit is conditioned upon
prompt payment of undisputed amounts due hereunder. Any late payment which is
subsequently determined by both Parties or by a court of competent jurisdiction
to be unexcused shall be subject to any costs of collection (including
reasonable legal fees) and shall bear interest which shall commence accruing on
the thirty-first (31st) day following Equifax's receipt of the invoice at the
rate of one (1) percent per month until paid.
(d) Certain Costs and Taxes. Unless otherwise stated in a TKO,
prices quoted do not include, and Equifax shall reimburse Alta for, all costs
of travel (air & cab fare, lodging and auto rental) and out-of-pocket costs for
overnight courier, long-distance telephone and the like, provided such costs of
travel and out-of-pocket costs are pre-approved by Equifax or budgeted in the
respective TKO, or relate to travel made at the specific request of Equifax.
Equifax shall pay, indemnify and hold Alta harmless from all federal state or
local sales, use, value-added, gross receipts, personal property or sales tax,
duty or other levy (other than taxes imposed on the net income, profits or
capital gains of Alta), and any interest or penalties imposed thereon, with
respect to the services or deliverables contemplated herein Alta shall pay,
indemnify and hold Equifax harmless from all workers compensation and payroll
taxes applicable to Alta personnel.
5. Proprietary Rights to Intellectual Property.
(a) Custom Work Product Defined. "Custom Work Product" means the
resulting work product (including all functional and technical designs,
software programs, modules, code, algorithms, flowcharts, data diagrams,
documentation and the like) created by Alta after the Effective Date on behalf
of Equifax and in furtherance of a specific TKO. Custom Work Product does not
include any pre-existing software owned by Alta, its workers or by any third
party that is (i) incorporated or "embedded" into the Custom Work Product; and
(ii) separately identified in writing in an attachment or amendment to the TKO
or otherwise in writing by Alta prior to the work being performed; and (iii)
approved in writing by Equifax's designated project representative(s), for Alta
to incorporate or "embed"
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into the Custom Work Product ((i), (ii) and (iii) collectively referred to
herein as the "Embedded Software").
(b) Ownership of Custom Work Product. Subject only to Equifax's
payment of amounts due hereunder for Custom Work Product at issue:
(i) Work for Hire. Equifax shall own all right, title and interest to all
Custom Work Product. Alta expressly acknowledges and agrees that all such
Custom Work Product constitutes "work made for hire" under the Federal
copyright laws (17 U.S.C. Sec. 101) owned exclusively by Equifax.
(ii) Back--Up Assignment. If and to the extent that Alta may, under
applicable law, be entitled to claim any ownership interest in the Custom Work
Product, Alta irrevocably transfers, grants, conveys, and relinquishes
exclusively to Equifax all of its right, title and interest in the Custom Work
Product under patent, copyright, trade secret, and trademark law, in perpetuity
or for the longest period otherwise permitted by law.
(iii) Further Assurances. Alta shall sign upon request, all documents
necessary to vest title in Equifax to any specific patent, trademark and/or
copyright or application, or filing therefore prepared by Equifax, and covering
the Custom Work Product, or efforts related to the Custom Work Product. Alta
shall also sign upon request, any document necessary for the filing and
prosecution of patent, trademark and/or copyright applications in the United
States and elsewhere, including divisional continuation, revival renewal or
reissue applications. Alta shall cooperate and assist Equifax in preparing,
filing and prosecuting any and all such patent, trademark and copyright
applications during the Term of this Agreement and for two (2) years following
its termination. Equifax shall bear all costs associated with the prosecution
of such patent, trademark and/or copyright applications.
(iv) License to Equifax of Embedded Software. Except as otherwise
specifically set forth in a TKO addressing the subject: (i) this Agreement
conveys no ownership rights to Equifax with respect to Embedded Software, and
(ii) Equifax and its Affidavits are hereby granted a royalty-free,
transferable, perpetual irrevocable, world-wide, nonexclusive right and
license:
A. To use, execute, reproduce, display, perform, and prepare derivative
works of the Embedded Software in conjunction with and as an integral part of,
Equifax's or its Affiliates' use of the Custom Work Product or any derivative
work thereof, or other systems in support of Equifax's or its Affidavits'
business operations including, without limitation, providing so-called "on-
behalf of' processing services or other substantial outsourcing services to
Equifax's or its Affiliates' clients and providing the Services. As used in
this Agreement the term "Services" means the services provided by Equifax and
its Affiliates in the certification authority services, registration authority
services, authentication services, directory services and other
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electronic commerce services Equifax and its Affiliates provides now or in the
future;
B. To authorize third party consultants to exercise the foregoing rights
on behalf of Equifax, subject to such consultants' execution of nondisclosure
agreements in a form substantially similar to that referenced in Section 6
("Confidential Information, or as otherwise agreed by Alta;
C. To sublicense the Embedded Software in executable form as an integral
part of Custom Work Product to Equifax's or its Affiliates' clients to enable
them and their subcontractors to process data in support of their business
operations. Such licenses may not be further sublicensed by Equifax's or its
Affiliates' clients to other parties, except as necessary for such clients to
conduct their normal business operations.
Alta reserves all rights in Embedded Software not expressly granted.
As used in this Agreement, the term Affiliates means with respect to a Party,
any entity or person at any time Controlling, Controlled by or under common
Control with such Party. The terms "Control," "Controlling" and "Controlled"
means possessing, directly or indirectly, the power to direct or cause the
direction of the management and policies of an entity or other person, whether
through ownership of voting securities, by contract or otherwise.
(c) License Back to Alta. Equifax irrevocably grants Alta a
royalty-free, perpetual worldwide, nonexclusive license to use, execute,
reproduce, display, perform, prepare derivative works, sublicense and reuse on
projects to be performed by Alta for other Alta clients any Custom Work Product
of a Generic nature. For these purposes, "Generic" means Custom Work Product
that is of more general application and not uniquely associated with Equifax's
proprietary processes or technology (giving special regard to the competitive
advantage the technology provides Equifax in its actual and demonstrably
anticipated fines of business). To clarify the status of particular
components, the Parties may (but are not required to) identify in the relevant
TKO components that are of a Generic nature, and components that are unique to
Equifax or its Affiliates and that do not fall within the scope of the license
granted by this Subsection 5(c).
6. Confidential Information. The provisions of a certain "Mutual
Nondisclosure Agreement" between the Parties dated November 19, 1998, is hereby
incorporated by reference into this Agreement in its entirety as if fully set
forth herein The Parties agree that the term "Initiative" as defined in Section
Recitals(A.) of the Mutual Nondisclosure Agreement is hereby revised as
follows: "In connection with this Agreement and any current or anticipated TKO
between the parties or any related products, services and/or cooperative
arrangements with respect to or supporting electronic commerce initiatives by
either or both of the parties (the "Initiative") To the extent there is a
conflict between the Mutual Nondisclosure
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Agreement and this Agreement, the terms and conditions of this Agreement shall
control
7. Nonsolicitation. During the Term and for a period of two (2) years
after the termination of this Agreement, each Party agrees not to hire,
solicit, nor attempt to hire or solicit the services or business of any teaming
partner, employee, subcontractor (or employee/second tier subcontractor
thereof) of the other Party or any of its Affiliates without the prior written
consent of such other Party. The covenant against solicitation does not apply
to general solicitation in publications or other media.
8. Injunctive Relief. The Parties acknowledge that violation by one
Party of the provisions of Section 5 ("Proprietary Rights to Intellectual
Property"), Section 6 ("Confidential Information") or Section 7
("Nonsolicitation") may cause irreparable harm to the other Party not
adequately compensable by monetary damages. In addition to other relief it is
agreed that temporary and permanent injunctive relief shall be available to
prevent any actual or threatened violation of such provisions as provided by
law.
9. Warranties. Compliance with the warranty described in Subsection
9(a)("Performance Warranty") shall be determined at the time of final delivery,
either by written Acceptance by Equifax or by substantial beneficial use of the
deliverable by Equifax in a production environment for a period of thirty (30)
consecutive days pursuant to Section 10(c) ("Acceptance Test and Remedy"). The
warranty described in Subsection 9(b)("Year 2000 Warranty") shall not expire
prior to the completion of the one (1) year period immediately following the
date of such Acceptance for all work performed under a specific TKO. The
warranties described in Subsection 9(c)("Non-infringement Warranties") shall
continue during the Term hereof and shall survive the termination of this
Agreement and any TKO.
(a) Performance Warranty. Alta represents and warrants that it
will use its best reasonable efforts to perform services in a competent and
workmanlike manner substantially in accordance with applicable specifications
included in the relevant TKO and to assign personnel having a level of skill
commensurate with the requirements of the work to be performed. Alta does not
warrant that the services, Custom Work Product or any Embedded Software or
other deliverable provided hereunder will be entirely free from error or
defect. Nothing herein shall preclude Alta from being compensated at its
normal rates for revising or debugging deliverables, which is a normal part of
the design and development process.
(b) Year 2000 Warranty. Alta represents and warrants that all
Custom Work Product Embedded Software and all other services or deliverables
developed by Alta personnel under this Agreement ("Alta Deliverables") shall be
Year 2000 compliant. To be Year 2000 Compliant, the Alta Deliverables must at
all times before, during and after January 1, 2000 accurately process and
handle date and
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time data (including, but not limited to, calculating, comparing, storing,
sorting, defining, managing and sequencing) from, into, and between the
twentieth and twenty-first centuries, and the years 1999 and 2000, including
leap year calculations, to the extent that other information technology used in
combination with the Alta Deliverables likewise properly exchanges date/time
data with them in a manner that is similarly Year 2000 Compliant. To the
extent that Alta Deliverables must perform collectively as unified information
processing system, the Alta Deliverables all must properly exchange date/time
data among themselves in accordance with the foregoing "Year 2000 Compliant"
definition. The foregoing warranty does not apply insofar as an Alta
Deliverable derives date functions from other programs (e.g., operating system
run-time libraries, databases or firmware) not developed or provided by Alta
personnel nor does it require Alta to workaround or accommodate other programs
or data (i.e., non-Alta Deliverables) that are not Year 2000 Compliant using
the same or other agreed-upon methodology.
(c) Non-infringement Warranties.
(i) Alta Non-infringement Warranty.
A. Copyrights and Trade Secrets. Alta represents and warrants that none
of the Custom Work Product, Embedded Software, services or deliverables
provided by Alta under this Agreement (collectively the "Intellectual
Property") will violate or infringe any copyright or the trade secrets of any
third party, and Alta further represents and warrants that it is aware of no
claim by any third party regarding the violation or infringement of any such
copyright or trade secrets in the Intellectual Property.
B. Patents. Alta represents and warrants that, to the best of its
knowledge and belief, none of the Intellectual Property will infringe any
Patent, and that to the best of its knowledge and belief Alta is aware of no
claim by any third party regarding any such infringement.
(ii) Certain Limitations. The warranty described in clause (i)
above does not apply to the extent a claimed infringement is caused by Alta's
adherence to Equifax's specifications, or to the extent caused by technology or
services not supplied by Alta. In the event of a breach of this Alta Non-
infringement Warranty, Alta shall at its own expense, either (a) procure for
Equifax and its Affiliates all the rights and licenses granted in this
Agreement with respect to the violating or infringing Intellectual Property,
(b) replace or modify the violating or infringing Intellectual Property to make
it non-infringing while preserving its original functionality, or (c) if
neither of the foregoing remedies (a) and (b) is commercially feasible, remove,
and refund the price paid by Equifax for, the violating or infringing
Intellectual Property.
(iii) Alta Infringement Indemnity. Alta agrees to indemnify, defend
and hold Equifax and its Affiliates and each of their officers, directors,
employees,
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agents, successors and assigns (the "Equifax Group") harmless from and against
any and all losses, liabilities, damages, penalties and claim and all related
costs and expenses (including reasonable attorneys' fees) related to claims
made by third parties against the Equifax Group or against any of its
components alleging a breach of Alta's warranties set forth in Subsection
(c)(i) above. Equifax hereby agrees to promptly give notice to Alta of any
indemnifiable claim. Equifax hereby agrees to cooperate in all reasonable
respects with Alta and its attorneys in the investigation, trial, defense and
settlement of any such claim and any appeal arising therefrom. Alta hereby
agrees and acknowledges that the Equifax Group or any of its components may,
through its attorneys or otherwise, at its own cost and expense, participate in
any such investigation, trial, defense and settlement that is being conducted
by Alta, of any such claim and any appeal arising therefrom No settlement of a
claim that involves a remedy other than the payment of money by Alta shall be
entered into without the consent of Equifax, which consent will not be
unreasonably withheld.
(iv) Equifax Non-infringement Warranty. Equifax represents and
warrants that, to the best of its knowledge and belief there are no third party
patents or other intellectual property rights that would be infringed by Alta's
performance of the Equifax specifications required by any TKO.
(v) No Conflicts Warranty. Alta warrants that it has the full
right, power and authority to enter into and perform its obligations under this
Agreement and to grant the rights and licenses contained in this Agreement.
Alta further warrants that it has neither assigned nor entered into any other
relationship by which it purports to transfer any right, title or interest to
any technology, process, material or intellectual property right that would be
in conflict with the terms of this Agreement, and shall not do so in the
future.
(d) Disclaimer. EXCEPT AS SPECIFICALLY PROVIDED IN THIS SECTION
("WARRANTIES"), ALTA HEREBY DISCLAIMS WITH RESPECT TO ALL SERVICES, CUSTOM WORK
PRODUCT, EMBEDDED SOFTWARE OR OTHER DELIVERABLES PROVIDED HEREUNDER, ALL
EXPRESS AND IMPLIED WARRANTIES, INCLUDING ANY IMPLIED WARRANTIES OF
MERCHANTABILITY, TITLE, ACCURACY, INTEGRATION OR FITNESS FOR A PARTICULAR
PURPOSE.
10. Limitation of Remedies & Liabilities. The Parties acknowledge the
following provisions have been negotiated and reflect a fair allocation of
risk:
(a) Remedies. Except for certain injunctive relief authorized
under Section 8 ("Injunctive Relief') and Section 18 ("Dispute Resolution
Procedures"), and except as otherwise provided in Subsections 9(c)(i) ("Alta
Non-infringement Warranty"), 9(c)(iii) (Alta Infringement Indemnity), Section
10(c) ("Acceptance Test and Remedy"), and Section 16(b) (Indemnity), Equifax's
sole and exclusive remedies
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with respect to Alta's services and Deliverables hereunder shall be (i) to
obtain from Alta the repair, replacement or correction of the defective
services or Alta Deliverables in a manner that provides the same functionality
and performance levels as provided for in Section 9 ("Warranties") and to the
TKO at issue, or, if either Party reasonably determines that such remedy is not
economically, timely or technically feasible, (ii) to obtain a full refund of
amounts paid with respect to the defective services or Alta Deliverables under
the TKO at issue. In the event that either Party determines that such remedy is
not economically, timely or technically feasible, Alta agrees to provide the
transition services to Equifax as set forth in Section 3(c) above.
(b) Liabilities. EXCEPT FOR (I) BREACH OF THE NONINFRINGEMENT
WARRANTIES IN SECTION 9(c)("NON-INFRINGEMENT WARRANTIES"); (II) THE INDEMNITY
DESCRIBED IN SECTION 16(b)("INDEMNITY"); (III) THE RECKLESS OR WILLFUL
MISCONDUCT OF A PARTY OR ITS PERSONNEL ARISING OUT OF OR IN CONNECTION WITH THE
SCOPE OF THEIR DUTIES; OR (IV) FOR NONPAYMENT BY EQUIFAX OF AMOUNTS DUE
HEREUNDER.
(i) THE PARTIES SHALL NOT BE LIABLE FOR ANY AMOUNT EXCEEDING THE TOTAL
PORTION OF THE CONTRACT PRICE ACTUALLY PAID BY EQUIFAX UNDER THE TKO AT ISSUE;
(ii) NEITHER PARTY SHALL BE LIABLE, WHETHER IN CONTRACT, TORT (INCLUDING
NEGLIGENCE) OR OTHERWISE, FOR ANY INDIRECT, INCIDENTAL, SPECIAL, MULTIPLE,
PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES (INCLUDING LOST SAVINGS, LOST
PROFITS, BUSINESS INTERRUPTION OR ATTORNEY FEES, EVEN IF NOTIFIED IN ADVANCE OF
SUCH POSSIBILITY) ARISING OUT OF OR PERTAINING TO THE SUBJECT MATTER OF THIS
AGREEMENT.
(c) Acceptance Test and Remedy.
(i) Acceptance Criteria. Equifax shall in conjunction with Alta, develop
mutually acceptable acceptance criteria for each Custom Work Product, Embedded
Software, service or deliverable developed or provided, or required to be
developed or provided, by Alta under each TKO (collectively the "Deliverables"
and individually a "Deliverable"). All acceptance tests shall be promptly
prepared at the inception of each TKO or as otherwise agreed, shall be signed
by both Parties and shall be attached to the project management plan preferably
at the onset of the work under the applicable TKO, but not later than thirty
(30) days prior to the delivery date for each respective Deliverable
thereunder, and shall form part of this Agreement. If Equifax cannot in good
faith agree with Alta as to the acceptance criteria for an individual TKO,
Equifax may initiate the dispute resolution procedures in Section 18, and if
the dispute is not resolved, may, in its sole
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discretion, terminate the applicable TKO or this Agreement in accordance with
the provisions of Section 3 ("Term").
(ii) Acceptance Testing. Following delivery for each respective
Deliverable under any TKO, Equifax will have the right to evaluate and test
each such Deliverable to ensure that the Deliverable meets the acceptance
criteria and the product specifications set out in the applicable TKO. Equifax
shall promptly give notice to Alta after completing the evaluation and testing
whether the Deliverable met the acceptance criteria and is functioning in
accordance with the specifications (the "Acceptance"). Any such notice by
Equifax to Alta that the Deliverables failed to meet the acceptance criteria or
function according to specification shall describe such failure in reasonable
detail.
(iii) Acceptance Remedy and Termination Right. In the event that a
Deliverable fails to meet the acceptance criteria or to function according to
specification, Equifax shall deliver a written prioritized fist of items to be
addressed by Alta. Upon completion of further debugging, Equifax will again
perform the acceptance testing in accordance with Subsection (ii) above. If
Equifax determines that Alta's work does not comply with this Agreement, it may
invoke the procedures set forth in Section 18 ("Dispute Resolution Procedures')
and/or terminate this Agreement or the applicable TKO in accordance with the
procedures set forth in Subsection 3(b)("Early Termination of TKO"). A
deliverable shall be deemed accepted by Equifax if Equifax issues its written
acceptance or if Equifax obtains substantial beneficial use of the deliverable
in a production environment for a period of thirty (30) consecutive days.
11. Notices. Except where written notice is required to be given under
this Agreement, notices required to be given under this Agreement shall be
effective as follows: (a) when delivered in person or successfully transmitted
by telecopier ("fax") machine; (b) 1 day after being sent by overnight courier;
(c) 2 days after being sent by first class mail postage prepaid, to the other
Party's principal place of business; or (d) 24 hours after being successfully
sent by electronic mail return receipt, to the other Party's designated e-mail
address. Where written notice is required to be given under this Agreement,
such written notices sent to either Party shall be effective as follows: (a)
when delivered in person or successfully transmitted by telecopier ("fax")
machine; (b) 1 day after being sent by overnight courier; or (c) 2 days after
being sent by first class mail postage prepaid, to the other Party's principal
place of business. A facsimile of this Agreement and notices generated in good
form by a fax machine (as well as a photocopy thereof) shall be treated as
"original" documents admissible into evidence unless a document's authenticity
is genuinely placed in question.
12. Default. Either Party may be declared in default of this Agreement if
it breaches any material provision hereof and fails within ten (10) days after
receipt of written notice of default to correct such default or to commence
corrective action
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reasonably acceptable to the other Party and proceed with due diligence to
completion. Either Party shall be in default hereof if it becomes insolvent,
makes an assignment for the benefit of its creditors, a receiver is appointed
or a petition in Bankruptcy is filed with respect to it and is not dismissed
within thirty (30) days. In the event of the bankruptcy of Alta pursuant to
the Bankruptcy Act and an attendant rejection of this Agreement or any license
or assignment granted hereunder pursuant to Section 365 thereto the Parties
intend that the provisions of the Bankruptcy Act shall apply and Equifax shall
be entitled to retain possession of all Custom Work Product delivered to it by
Alta under this Agreement and to the extent permitted by law, retain the
license rights granted thereunder, subject to the obligations to pay amounts
due hereunder.
13. Choice of Law. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE SUBSTANTIVE LAWS OF GEORGIA WITHOUT REGARD TO PRINCIPLES OF
CONFLICTS OF LAWS.
14. Contractor Status. Each Party and its people are independent
contractors in relation to the other Party with respect to all matters arising
under this Agreement. Nothing herein shall be deemed to establish a
partnership, joint venture, association or employment relationship between the
Parties.
15. Compliance with Export Regulations. Equifax has or shall obtain in a
timely manner all necessary or appropriate licenses, permits or other
governmental authorizations or approvals; shall indemnify and hold Alta
harmless from and bear all expense of complying with all foreign or domestic
laws, regulations or requirements pertaining to the importation, exportation,
or use of the technology to be developed or provided herein. Equifax shad take
no action, nor omit to take any required action, which would cause either Party
to violate the Foreign Corrupt Practices Act of 1977 or the U.S. Export
Administration Regulations. The provisions of this section and assurances made
herein shall survive termination of this Agreement.
16. Certain Personnel Issues.
(a) Generally. If Equifax believes an individual assigned by Alta
to a TKO does not perform with the level of skill required by this Agreement,
it will give notice thereof to Alta and the Parties will reach a good faith,
reasonable accommodation to the staffing assignments, the TKO, or both, that
most nearly achieves each Party's legitimate interests. It is acknowledged
that Equifax's security and safety policies must be observed at all times while
Alta performs work at Equifax's facilities. Alta may appoint an independent
agent to conduct drug testing or financial credit checks on Alta personnel
assigned to Equifax's premises according to mutually acceptable procedures and
criteria to satisfy Equifax's workplace requirements.
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(b) Indemnity. Alta will defend, indemnify and hold Equifax
harmless from any bodily injury or damage to tangible property caused by the
negligent or will misconduct of Alta personnel acting within the scope of their
duties while at Equifax's premises.
17. Insurance Requirements. Subject to the terms and conditions of this
Agreement, Alta will maintain the following policies of insurance during the
Term hereof:
(a) Worker's compensation insurance in accordance with the
applicable statutory requirements of all states of operation covering all
employees who will be used in the performance of this Agreement;
(b) Employers' Liability insurance with limits no less than
$500,000/$500,000/$500,000.
(c) Commercial General Public Liability insurance with a combined
single limit of not less than $1,000,000 for bodily injury and property damage.
That finance shall include, but not be limited to, contractual liability,
independent contractors, completed operations, broad-form property damage, and
personal injury coverage. Equifax, its officers, agents and employees will be
additional insureds for purposes of this Agreement.
(d) Automobile Liability insurance (including owned, non-owned and
hired vehicles) with a combined single limit of not less than $1,000,000 for
bodily injury and property damage combined. Equifax, its officers, agents, and
employees shall be additional insureds for the operations under this Agreement.
(e) Professional Liability insurance insuring the work performed
for Equifax under this Agreement with limits of liability of not less than $
1,000,000 each claim and $ 1,000,000 aggregate.
(f) A mutually acceptable Fidelity Bond in the amount of $500,000
will be addressed in the TKO.
Alta will place the insurance policies held above with insurance companies who
are licensed to do business in Alta's states of operation. The policies will
not be modified by any endorsement which restricts or reduces the required
coverage, nor will a policy be cancelled until at least thirty (30) days' prior
written notice has been given to Equifax Alta will provide certificates of
insurance to Equifax evidencing the required policies and coverages no later
than thirty (30) days after the effective date of this Agreement and, upon
request, after each policy renewal.
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18. Dispute Resolution Procedures.
(a) Any dispute between the Parties either with respect to the
interpretation of any provision of the Agreement or with respect to the
performance by Equifax or by Alta hereunder shall be resolved as specified in
this Section 18. Upon notice of a dispute ("Dispute Notice") being given by
either Party to the other Party, this dispute resolution procedure may be
invoked. The Dispute Notice should include a detailed description of the
dispute. The Party receiving such Dispute Notice will respond by giving notice
to the other Party ('Dispute Response") within five (5) business days. Within
eight (8) business days of delivery of the Dispute Notice, the designated
representatives of each Party will meet for the purpose of endeavoring to
resolve such dispute. Such representatives shall discuss the problem and
negotiate in good faith, for a period not to exceed 30 days from the date of
the Dispute Notice, in an effort to resolve the dispute without the necessity
of any formal proceeding relating thereto. If such efforts shall fail the
Parties and either of them may bring a civil action with respect to such
dispute in any court with jurisdiction over the matter and Parties.
(b) Notwithstanding anything to the contrary in this Section 18,
the representatives described in this Section 18(a) shall have the authority to
shorten or to stay the time periods set forth in this Section 18 upon the
written consent of both Parties' representatives. Notwithstanding any other
provision of this Section 18, either Party may resort to court action for a
temporary restraining order and/or other injunctive relief at any time if the
processes, time periods and delays attendant with the dispute resolution
processes set forth in this Section 18 might reasonably be considered to permit
or cause irreparable injury or delay to such Party or any third party claiming
against such Party.
19. Miscellaneous. This document, Task Order No. 1, any other TKO from
time to time executed in accordance with Section I ("General Undertaking") and
the Mutual Nondisclosure Agreement referenced in Section 6 ("Confidential
Information") constitute the entire agreement between the Parties with respect
to the subject matter hereof and supersede all other communications, whether
written or oral This Agreement may be modified or amended only by a writing
signed on behalf of Alta by the President and by an authorized representative
of Equifax. Equifax may assign the Agreement or any rights and/or obligations
hereunder to any Equifax Affidavit. Except as specifically permitted herein,
neither this Agreement nor any rights or obligations hereunder may be
transferred or assigned without the other Party's prior written consent and any
attempt to the contrary shall be void, except Alta may subcontract portions of
the work under a TKO. The rights and obligations of the Parties will inure to
the benefit of will be binding upon and will be enforceable by the Parties and
their lawful successors and assigns. Neither Party shall be liable for delays
caused by events beyond its reasonable control. Any provision hereof found by
a tribunal of competent jurisdiction to be illegal or unenforceable shall be
automatically conformed to the minimum
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requirements of law and all other provisions shall remain in full force and
effect. Waiver of any provision hereof in one instance shall not preclude
enforcement thereof on future occasions. Headings are for reference purposes
only and have no substantive effect.
IN WITNESS WHEREOF, for adequate consideration and intending to be legally
bound, the Parties hereto have caused this Agreement to be executed by their
duly authorized representatives.
ALTA SOFTWARE, INC. EQUIFAX SECURE, INC.
By: /s/ XXXXXX XXXXXXXXX By: /s/ XXXXXXX X. XXXXXXX
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Xxxxxx Xxxxxxxxx, President
Name: Xxxxxxx X. Xxxxxxx
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Date: 5/15/99
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Title: President & CEO
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Date: 5/5/99
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