CERTAIN PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH
THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT UNDER RULE 406 UNDER THE SECURITIES ACT OF 1933, AS AMENDED.
Exhibit 10.12
AGREEMENT
(CONSULTING SERVICES)
THIS AGREEMENT, hereinafter called "Agreement", made as of October 15, 1998, by
and between FIRST UNION CORPORATION, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇
▇▇▇▇▇-▇▇▇▇, hereinafter called "First Union" and PREDICTIVE SYSTEMS, INC, ▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, hereafter called
"Supplier".
IN CONSIDERATION of the mutual premises, covenants, and agreements made and
contained herein, and intending to be legally bound hereby, the parties hereto
agree as follows:
1. Definitions: When used herein with initial capitalization whether in
the singular or in the plural, the following terms shall have the
following meanings:
"Changes Order" = An official document issued by First Union, and
countersigned by Supplier, after the Effective Date of this Agreement to
amend the method, manner or the performance of the work, the Statement of
Work, Statement of Work or Project Plan within the general scope of
services provided under this agreement.
"Effective Date" = The date first set forth above.
"First Union" = First Union Corporation and all banks and other
organizations which are or hereafter became subsidiaries of, or otherwise
controlled by, First Union Corporation, and any bank or other organization
which may hereafter acquire a controlling interest in First Union
Corporation or any of its subsidiaries.
"First Union Representative" = A First Union employee designated to
coordinate the performance of Services (as hereinafter defined).
"Statement of Work" = The more particular description of Services to be
provided by Supplier to First Union, executed and delivered by Supplier and
First Union, sequentially numbered, attached hereto and made a part hereof.
"Work Order" = A document drafted hereunder by First Union to Supplier, and
countersigned by Supplier setting forth, without limitations, a description
of specific Services to be performed, the performance schedule, a list of
the personnel required from Supplier, and the name of the First Union
Representative.
2. Acceptance: First Union hereby engages Supplier to perform the services
(the "Services") described in the Statement of Work attached hereto and
such additional statements of Work, Change Orders and/or Work Orders as
may be mutually entered into by First Union and Supplier from time to
time. Supplier hereby accepts said engagement, and agrees to provide
personnel to render such Services to the best of their ability at such
place or places as shall be mutually agreeable to First Union and
Supplier. First Union shall have the right to reject at any time any of
Supplier's personnel whom First Union determines to be unqualified or
otherwise unsatisfactory to perform such Services.
3. Supplier Warranty: Supplier shall perform the Services during the
period commencing on the date hereof and ending on the completion of
work specified on attached Statement(s) of Work, or any exception
thereof. Supplier warrants that the Services shall be performed in
a workmanlike manner in accordance with the prevailing reasonable
commercial standards applicable hereto, and in compliance with all
applicable statutes, acts, ordinances, laws, rules, regulations,
odes, and standards. The warranties provided herein are cumulative
of any other warranties agreed to by Supplier and are subject to
Section 28 hereof.
4. Fees & Invoices: First Union agrees to pay the Fees provided in the
Statement of Work in U.S. dollars at the address of the Supplier stated
herein. If provided for in the Statement(s) of Work, First Union shall
reimburse Supplier for transportation (except for normal commuting),
lodging and substances for travel authorized in advance by First Union.
Travel expenses will be paid only in accordance with the effective
policy of First Union covering such expenses invoices shall be sent by
Supplier for all payments hereafter. Invoices shall describe the items
charged for in the invoice and shall be subject to approval by the
First Union Representative for conformity with this Agreement and the
statement(s) of Work. Invoices shall be payable within thirty (30) days
after the receipt at First Union's Accounts Payable Division. First
Union may [****]. Supplier agrees to arrange for an account to
receive payment made by electronic transfer, at First Union's
option. No payment made by First Union shall be considered as
acceptance of satisfactory performance of Suppliers obligations
under this Agreement, nor shall any payment be construed as
acceptance of substandard or careless products or services or as
relieving Supplier from its full responsibility under the Agreement.
5. Performance and Personnel: Supplier's personnel working at First Union
location shall meet the rules and requirements of First Union as may be
in effect from time to time, regarding the conduct, appearance,
cleanliness, work history and qualifications, and personal history
including violent or criminal conduct for persons working at First
Union locations, and Supplier shall perform all drug testing,
background and credit checks and other procedures required by First
Union policy. At the request of First Union Supplier shall provide
services to First Union satisfactory to First Union, that Supplier's
personnel meet the rules and requirements of First Union pertaining to
work history and qualifications and personnel history. Supplier shall
not assign any personnel to work hereunder who would under current
First Union policy be disqualified from employment with First Union due
to a relationship by blood or marriage with a First Union employee, and
shall also apply said policy to its own personnel assigned to work
hereunder, so that none of them are so related to each other. First
Union shall disclose the above employment rules, requirements, and
policies to Supplier, and Supplier shall screen its personnel to ensure
compliance. Supplier shall provide First Union with the name, address,
date of birth, and social security number of each personnel assigned to
work on First Union's premises, and shall update such information
whenever changes occur. While at any First Union location, Supplier and
Suppliers personnel shall follow all
**** Represents material which has been redacted and filed separately with
the Commission pursuant to a request for confidential treatment pursuant
to Rule 406 under the Securities Act of 1933, as amended.
2
reasonable directions and instructions given by First Union. Upon the
request of First Union, which request may be made without reasons,
Supplier shall reassign or otherwise arrange so that a particular
employee or agent of Supplier does not work at any Firsts Union
location.
6. Locations: At any time during the term hereof, First Union may add or
eliminate locations to be served by Supplier. If locations are
eliminated, payment to Supplier shall be reduced by the charges for
Services attributable to such locations. If location are added, First
Union shall pay the additional location charges set forth in the
Statement of Work. First Union may, from time to time, change the
description of Services in the Statement of Work and in such event
First Union and Supplier shall agree to an adjustment in the price of
Services to reflect any changes in cost to Supplier attributable to
such charges.
7. Security: When Supplier is performing Services on First Union's
premises, Supplier shall comply with First Union's security, safety,
and fire protection procedures. If Supplier is given keys or other
access devices to First Union premises or equipment, Supplier shall use
reasonable efforts to protect such keys or access devices, shall
maintain a log book of the matters of personnel and times when they
have possession of such keys or access devices, shall account for all
such keys and access devices whenever requested to do so by First
Union, and shall return all such keys and access devices upon request
and upon termination of its obligations hereunder. First Union may
require Supplier's personnel to carry or display identification cards
when on First Union's premises. First Union shall have the right to
inspect the contents of all containers or packages being brought into
or removed from First Union' locations.
8. Copyrights: Supplier agrees that all right, title and interest in and
to all Deliverables, as identified in the applicable Statement(s) of
Work which Supplier produces or composes in connection with the
Services to be performed hereunder for First Union or any of its
affiliates shall be considered work made for hire and shall belong to
First Union. Supplier hereby assigns all rights, title, and interest to
each work to First Union and agrees to execute any additional documents
appropriate to further such assignment. Notwithstanding anything to the
contrary herein, Supplier shall retain all ownership rights in and to
underlying ideas or constituent elements of procedures, processes,
architectures, systems, concepts, techniques and methods of operation
embodied in such Deliverables (collectively the "Know How"), provided,
however, that First Union shall have a perpetual personal,
non-exclusive license to use the Know-How contained in any Deliverables
hereunder solely in connection with First Union's use of such
Deliverables.
9. Disaster Recovery: Supplier shall provide disaster recovery and backup
capabilities and facilities through which Supplier will be able to
order the Services to First Union with minimal disruptions or delays.
Supplier shall provide to First Union copies of the writing plan or
plans for any such disaster recovery and backup arrangements.
10. Remedies: Services are "Non-conforming" when particular services do not
meet the requirements of this Agreement (including the applicable
Statements(s) of Work), the warranties set forth herein, or other
applicable express warranties or implied warranties.
3
First Union may require Supplier to , at Supplier's expense, re-perform
or replace non-conforming Services. In the event Supplier has attempted
and failed to satisfactorily perform such Non-conforming Services,
First Union, at is option, may engage another person to re-perform or
replace Non-conforming Services at Supplier's expense, if First Union
has paid Supplier for said Services.
11. Indemnification: Supplier agrees to indemnify and hold harmless First
Union, and any employee or agent thereof (each of the foregoing being
hereinafter referred to individually as the "Indemnified Party")
against all liability (including reasonable attorney's fees and costs)
to third parties (other than to the extent such liability is
attributable to the fault of the Indemnified Party) arising from the
negligence of the Supplier or its agents in the performance of its
obligations hereunder. Supplier's obligation to indemnify shall survive
the expiration or termination of this Agreement by either party for
any reason. Supplier may, at its option, conduct the defense in any
such third party action arising as described herein and First Union
shall cooperate fully with such defense.
12, Insurance: For and during the term of this Agreement and for as long as
Supplier is performing Services hereunder, Supplier shall maintain
insurance coverage and bonding as follows:
Commercial General $1,000,000 per occurrence Covering, bodily injury,
Liability $2,000,000 general aggregate personal injury, including
without limitation, all
contractual liability for such
injury or damage assumed by
supplier under this Agreement.
Worker's Compensation Statutory In accordance with all federal
State & local requirements.
Employers Liability $500,000 each accident Covering bodily injury by
$500,000 disease/policy limit disease (including death)
$500,000 disease/each employee
Automobile Liability $1,000,000 combined single limit Covering bodily injury
(including death) and property
damage for all vehicles that
Supplier owns, hires or leases
Employee Dishonesty $500,000
Umbrella Liability $5,000,000
Errors and Omissions Liability $1,000,000
First Union Corporations shall be named as additional insured under each
such policy of insurance obtained by Supplier. [****]. These insurance
provisions set
**** Represents material which has been redacted and filed separately with
the Commission pursuant to a request for confidential treatment pursuant
to Rule 406 under the Securities Act of 1933, as amended.
4
forth the minimum amounts and scopes of coverage to be maintained by
Supplier and are not to be construed in any way as a limitation on
Supplier's liability under this agreement. The insurance coverage shall be
primary and will not participate with nor will be access over any valid and
collectable insurance or program of self-insurance carried or maintained by
First Union.
Supplier shall furnish Certificate of Insurance evidencing all of the
foregoing insurance coverage prior to or upon execution of this Agreement.
Full copies of the policies required above shall be furnished to First
Union Upon request, subject to availability. All of the above described
policies shall provide that no less than (30) days prior written notice of
cancellation, notification, reduction in coverage or non-renewal shall be
given to First Union. The failure of Supplier to comply with any of the
terms of these policies shall not adversely affect First Union's coverage
thereunder. Certificates of Insurance evidencing any notification renewal
or replacement of any of these insurance coverages shall be furnished to
First Union promptly after such modification, renewal, replacement, or
reduction in coverages below the limits set forth above. In the event that
any Services under this Agreement are to be rendered by persons other than
the Suppliers own employees, Supplier shall arrange for such persons
forward to First Union, prior to commencement of Services by them,
Certificates of Insurance evidencing such amounts, in such form, and with
such insurance companies as are satisfactory to First Union.
13. Termination Assistance: In connection with the termination of this
Agreement for any reason, and notwithstanding any dispute between the
parties, Supplier shall provide to First Union such termination
assistance as it may reasonably request in order to provide an orderly
transition from Supplier to another provider of Services. If any such
termination assistance requires resources in addition to those being
used by Supplier in the performance of the Services, First Union shall
pay Supplier therefor on a mutually acceptable basis. First Union shall
continue to pay for all Services performed by Supplier after the
termination date, provided that if termination was by reason of a
payment default by First Union, Supplier shall be entitled to
reasonable assurances acceptable to it prior to commencing such
termination assistance that it will be fully compensated for such
termination assistance.
14. Authority: Supplier and First Union each represent to the other that
the execution, delivery and performance of this Agreement by such party
has been fully approved by all necessary corporate action, and does not
conflict with, or result in a material breach of, the articles of
incorporation or by-laws of such party, any material agreement by which
such party is bound, or any law, regulation, rule, judgment or decree
of any governmental instrumentality or court having jurisdiction over
such party; and this Agreement has been duly executed by such party and
constitutes a valid and legally binding obligation of such party
enforceable in accordance with its terms.
15. Compliance with Laws: Supplier warrants that it shall perform its
obligations under this Agreement in accordance with the prevailing
reasonable commercial standards applicable thereto, and in compliance
with all applicable statues, acts, ordinances, laws, rules,
regulations, codes, and standards.
5
16. Year 2000 Date Change Warranty: Supplier warrants that all Goods,
Equipment, and Software delivered in connection with the Services
("Deliverables") include, at no additional cost to First Union, design
and performance capabilities so that prior to, during, and after the
calendar year 2000, the Deliverables will not malfunction, produce
invalid or incorrect results, or abnormally cause to function because
of the year 2000 date change. Such design and performance capabilities
shall include without limitation the ability to recognize the century
and to manage and manipulate date involving dates, including single
century and multi-century formulas and date values, without resulting
in the generation of incorrect values involving such dates or causing
an abnormal ending; date data interfaces with functionalities and data
fields that indicate the century; and date related functions that
indicate the century. Supplier warrants that all Services performed
shall not cause any affected Goods, Equipment or Software supplied by
it to breach this warranty. Supplier further warrants that all methods
and procedures by which it interfaces with First Union hereunder,
including without limitation, its ordering involving, and payment
procedures, shall be Year 2000 compliant.
17. Taxes: First Union shall pay all sales, excise, or use taxes due on the
transactions hereunder or provide Supplier customary proof that the
transactions are exempt from sales taxes. Invoices shall separately
identify any tax and shall include either Supplier's sales tax or use
tax permit number. Supplier shall pay any other taxes, assessments or
fines arising from Supplier's performance or the transactions under
this Agreement, including taxes based upon Supplier's Net Income and
penalties imposed due to failure to file or pay collected sales or
use taxes.
18. Good Standing and Permits: Supplier represents and warrants that it is
in good standing in the state of its incorporation and that it has all
licenses and permits necessary or required to provide such products
and/or services. Supplier shall provide copies or other evidence
thereof to First Union upon request. Any fees for licenses and permits
required by law or regulation that may be necessary to Supplier's
performance hereunder shall be the responsibility of Supplier.
19. Employee Matters: Supplier's personnel shall not be considered
employees of First Union within the meaning or application of any
federal, state, or local laws or regulations. Supplier shall be
responsible for the payment of wages, salaries, and other amounts due
its employees in connection with the services performed hereunder, and
shall be responsible for all payroll reports and obligations,
including, but not limited to withholding, social security,
unemployment insurance, worker's compensation, immigration and
naturalization, and similar items.
20. Equal Employment: Both parties agree that they shall not discriminate
against any employee or applicant for employment because of race,
creed, color, age, sex, national origin, marital status, liability for
services in the armed forces, disability due to veteran status, status
as veteran of the Vietnam era, or the handicapped, and they shall
comply with all the requirements of the Equal Opportunity Clause set
forth in Executive Order 11246, as amended, and its implementing
instructions, as well as the Rehabilitation Act
6
of 1973 and the Vietnam Era Veterans' Readjustment Assistance Act
of 1974, which are incorporated herein by reference. In the event
that and at such time as First Union requests, Supplier shall furnish
to First Union written certification that Supplier is in compliance
with Executive Order 11246 and applicable regulations thereunder. Both
parties certify that they do not and shall not maintain facilities for
their employees in a segregated manner or permit their employees to
perform their services at any location under their control where
segregated facilities are maintained, and agree to obtain similar
certifications from any subcontractors.
21. Non-Solicitation of Employees: Both Supplier and the First Union agrees
not to directly solicit employment of each other" employees directly
associated with this Agreement during the term hereof and for a period
of one (1) year thereafter.
22. Confidential Information: Each party agrees that information concerning
the other party's business (including that of all corporate affiliates
and subcontractors) is "Confidential Information" and shall be
maintained in confidence and not disclosed, used or duplicated, except
in accordance with this Agreement. Confidential Information may
include, without limitation, list of customers, business volumes or
usage , financial information, pricing information, information related
to mergers or acquisitions, software, software documentation, and
information concerning business plans or business strategy. Each party
may use Confidential Information of the other only in connection with
performance under this Agreement. The parties shall not copy
Confidential Information or disclose Confidential Information to
persons who do not need Confidential Information in order to perform
under this Agreement. Confidential Information shall be returned to the
party seeking to protect such information upon request of the other
party. Confidential Information does not include information that is
(i) generally known or available to the public, (ii) not treated as
confidential by the party claiming information to be confidential,
(iii) was already known to Supplier or in Supplier's procession, (iv)
Supplier can reasonably demonstrate was developed by Supplier without
making use of First Union Confidential Information (which may
include providing other customers of Supplier having network
environments similar to that of First Union with solutions similar to
those provided by it to First Union), or (v) Supplier rightfully
received from a third party without knowledge of violation of any
obligation of confidentiality. Nothing contained in this Section 22 or
otherwise shall prohibit Supplier from making disclosure of
Confidential Information to the extent required by law, rule or
regulation, provided that Supplier shall give First Union prior notice
as to the nature of the required disclosure so as to afford First Union
the opportunity to challenge the need for such disclosure. Supplier
shall not advertise, market or otherwise make known to others any
information relating to the subject matter of this Agreement, including
mentioning or implying the name of First Union. If requested by First
Union any employee, representative, agent or subcontractor of
Supplier's shall enter into a non-disclosure agreement with First Union
to protect the Confidential Information of First Union satisfactory to
First Union. A breach of either party's confidentiality obligations or
the use by Supplier of First Union's name without prior consent may
cause First Union to suffer irreparable harm in an amount not easily
ascertained. The parties agree that such breaches whether threatened or
serious, will give
7
the non-breaching party the right to terminate this Agreement
immediately, obtain equitable relief, i.e., obtain an injunction to
restrain such disclosure or use, and pursue all other remedies said
party may have at law or in equity. The provisions of this section
shall survive the termination of this Agreement.
23. Use of Name: Neither party shall use the name of the other for
advertising or other such purposes without the prior written approval
of the other party.
24. First Union's Instructions: During the term of the Agreement, Supplier
shall cause its employees and agent to obey all reasonable instructions
and directions issued by First Union concerning the First Union's
business operations when Supplier's employees and agents are on First
Union's premises.
25. Change Orders: Supplier shall promptly evidence its acceptance of each
Change Order by promptly executing the Acceptance Copy of such Change
Order and returning such Acceptance Copy to First Union. Supplier shall
promptly notify First Union of any objections to the Change Order and
Supplier's failure to timely object shall constitute acceptance of the
Change Order.
26. Audits: The audits personnel of First Union, as well as examiners and
representatives of First Union's regulatory agencies, will have the
right to make such audits, examinations and inspections of Supplier's
financial records and procedures as maybe reasonably relevant to
Supplier's compliance with its obligations under this Agreement,
following reasonable prior notice and conducted so as to minimize any
interference with Supplier's business. Supplier may require such
persons to provide reasonable evidence of their authority before being
admitted to Supplier's facilities.
27. Force Majeure: In the event that either party is unable to perform any
of its obligations under this agreement, or to enjoy any of its
benefits because of fire, natural disaster, action or decrees
governmental bodies (a "Force Majeure Event"), the party who has been
so affected shall immediately give written notice to the other party
and shall do everything possible to resume performance. Upon receipt
of such notice, all obligations under this Agreement shall be
immediately suspended. If the period of nonperformance exceeds
thirty (30) days from the receipt of notice of the Force Majeure Event,
the party whose ability to perform has not been so affected, may by
giving written notice, terminate this agreement. Delays in delivery
due to Force Majeure Events shall automatically exceed the delivery
date for a period equal to the duration of such Events, any warranty
period affected by a Force Majeure Event shall likewise be extended
for a period equal to the duration of such Force Majeure Event. As
applied to this section and to determine whether an event is wholly
beyond control of a party, strikes, slowdowns or other labor related
delays are not Force Majeure Events.
28. Limitation of Liability: Neither First Union nor Supplier shall be
liable to the other party for any consequential, incidental or
punitive damages. This limitation shall not diminish Supplier's
obligation to indemnify, hold harmless and defend First Union under
the express terms of this Agreement. WITHOUT LIMITING THE FOREGOING,
8
SUPPLIER MAKES NO EXPRESS OR IMPLIED REPRESENTATIONS WITH RESPECT TO
ITS PERFORMANCE OF THE SERVICES HEREUNDER OR ANY DELIVERABLES
CONTEMPLATED HEREBY, INCLUDING, WITHOUT LIMITATION, ANY REPRESENTATION
OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. In performing
the evaluation of risk contemplated by the Statement of Work attached
hereto, Supplier will perform certain procedures referred to in the
Statement of Work in an attempt to identify certain risks referred to
therein and to develop estimates as to their probability and risk
potential, based in part on information supplied by First Union.
Supplier will also utilize certain publicly available information in
performing the Services, but makes no representation or warranty with
respect thereto or with respect to my analysis based thereon. While
Supplier believes that the procedures to be performed by it provide a
reasonable method of attempting to analyze and qualify certain risk,
there can be no assurance that all applicable risks will be identified
or that any such risk can be adequately qualified, and Supplier makes
no representation or warranty with respect to any risk identification
or qualification made or delivered by it. In no event shall Supplier
have any liability for any loss or harm suffered by First Union arising
out of or relating to any such risks or the failure to identify or
accurately quantify any thereof.
29. Future Acquisitions: If during the term of this Agreement, First Union
shall acquire control of any entity which is under an existing contract
with Supplier that covers or relates to the subject matter of the
Agreement, First Union, at its option, may keep the acquired entity's
existing contract in effect until the date of termination of the
existing contract, after which, such acquired entity may receive the
benefits of this Agreement, or may immediately cancel such existing
contract after which such acquired entity may receive the benefits of
this Agreement.
30. Term: The term of this Agreement shall commence on the Effective Date,
and end on date on which all Services to be performed under the
Statement(s) of Work issued hereunder are completed.
31. Termination for Convenience: First Union may terminate this Agreement
at any time by providing at least thirty (30) days written notice of
termination to Supplier.
32. Termination for Cause: If either party materially or repeatedly
defaults in the performance of any of its duties or obligations
hereunder (including defaults for which specific remedies, are provided
herein), and said default is not substantially cured within thirty (30)
days after written notices specifying the default is given to the
defaulting party, or, with respect to those defaults that cannot
reasonably be cured within thirty (30) days if the defaulting party
fails to provide in writing within thirty (30) days to the party not
in default a reasonable plan and completion date for curing such
default and thereafter proceed with all due diligence to substantially
cure the same in accordance with such plan and by such completion date,
then the party not in default may, by giving written notice thereof to
the defaulting party, terminate this Agreement as of the date specified
in such notice of termination. If either party becomes or is declared
insolvent or bankrupt, is the subject of any proceedings relating
to its liquidation or insolvency
9
or for the appointment of a receiver for it, makes an assignment for
the benefit of all or substantially all of its creditors, or enters
into an agreement for the composition, extension, or readjustment of
all or substantially all of its obligations, then the other party may,
by giving written notice thereof to such party, terminate this
Agreement as of a date specified in such notice of termination. If any
of the insurance coverages or policies required to be maintained by
Supplier under this Agreement is terminated, lapses or for any reason
does not remain in full force and effect, or any such coverage or
policy is replaced or partially modified without the prior written
consent of First Union, then First Union may, by giving written notice
thereof to Supplier, terminate this Agreement upon the date specified
in the notice, which date may be the date of the notice.
33. Mandatory Arbitration & Applicable Law: Any dispute, claim or
controversy arising out of, connected with or relating to this
Agreement shall be resolved by binding arbitration administered and
conducted under the Commercial Arbitration Rules of the American
Arbitration Association and Title 9 of the United States Code. The
prevailing party in any judicial action or arbitration shall be
entitled to reimbursement from the other party for costs, filing fees,
arbitration filing fees, reasonable pretrial, trial and appellate
attorney's fees, witness fees, expert fees, arbitration panel fees,
and travel fees. A judgment upon the arbitration award may be entered
in any court having jurisdiction. Any arbitration hearing shall take
place at Charlotte, North Carolina. Nothing in this section, however,
shall prevent either party from seeking equitable relief from a court
of competent jurisdiction for the other party's breach of the
Confidential obligation or infringement of intellectual property
rights and any proprietary sections of this Agreement. The Agreement
shall be governed by the laws of North Carolina.
34. Subcontracts and Assignment: Supplier shall not assign, in whole or
part, any of its obligations under this Agreement without First Union
written consent. First Union may assign any benefits or obligations
under this Agreement to any "affiliate" (as defined in 11 U.S.C.
101(2)) of First Union. The assignor under such assignment by First
Union shall remain liable under the Agreement. Supplier shall not
subcontract any portion of its performance obligations under
an Agreement without First Unions prior written approval of
the subcontractor.
35. Miscellaneous: Termination of this Agreement shall not release either
party form their respective obligations hereunder with regard to
products or services already delivered or performed, including, without
limitation, obligations of payment, warranty, and from the
confidentiality and indemnity provisions hereof. Any invalidity in
whole or in part, or any provision of this Agreement shall not affect
the validity of any other of its provisions. No term or provision
hereof shall be deemed waived and no breach executed unless such waiver
or consent shall be in writing and signed by the party claimed to have
waived or consented. Failure to exercise a right or remedy at law
granted hereunder shall not be deemed a waiver of such right or remedy.
Failure to claim default hereunder shall not waive any default.
36. Relationship Between the Parties: The services of Supplier are to be
rendered as an Independent contractor, and Supplier is not an employee,
agent, or partner of First Union.
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This Agreement and the transactions referred to herein were negotiated
in an "arms length" manner. Supplier warrants that this Agreement and
such transactions have not been procured through unfair or unethical
conduct. This Agreement is solely for the benefit of the parties hereto
and no other persons.
37. Notices: All notices of other communications required or contemplated
herein shall be sufficient and deemed delivered if in writing and
deposited with the Unites States Postal Service, postage prepaid via
certified mail, addressed to the parties as set forth below, or to such
other address as may be changed from time to time by notice duly given.
To: Predictive Systems, Inc To: First Union Corporation
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇.▇. ▇▇▇▇▇▇ ▇▇▇▇.
▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ Attention: ▇▇▇▇▇ ▇▇▇▇▇▇
cc: First Union Corporation
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: General Services
1. The Agreement: This Agreement, including all documents referred to herein
and attached hereto, constitutes the entire agreement of the parties on the
subject matter hereof and supersedes all prior representations,
understandings and agreements between the parties with respect to such
subject matter, and the signing of same by both parties shall cause this
Agreement to be valid upon the Effective Date designated hereof. The
documents referred to herein and attached hereto shall be read together
with this Agreement to determine the parties' intent. If there is a
conflict between or among such documents, this Agreement shall be the final
expression of the parties' intent.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
Effective Date.
FIRST UNION CORPORATION PREDICTIVE SYSTEMS, INC.
By: /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------- ------------------------
Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------- ------------------------
Title: Assistant V.P. Title: Regional Vice President
------------------------- ------------------------
Date: 10/29/98 Date: October 21, 1998
------------------------- ------------------------
This Agreement has been reviewed and authorized by the following First Union
business unit:
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇
---------------------------
11
Name: ▇▇▇▇▇▇ ▇▇▇▇▇
---------------------------
Title: Director Internet Center
---------------------------
Date: 10/27/98
---------------------------
12
STATEMENT OF WORK I
Attached to and made a part of Consulting Services Agreement Between
First Union Corporation and Predictive Systems, Inc. dated October 15, 1998
[****]
Stage One:
[****]
Week One Deliverables:
Week one deliverable will consist of:
[****]
Stage Two:
[****]
Week Two Deliverables:
[****]
Final Deliverables:
A final report of the approach, findings and recommendations will be delivered
to First Union twenty-one days from the start of the engagement.
The following information, if obtained in advance of our arrival to the First
Union site, will expedite the building of the [****], and facilitate a
familiarity of the operating environment to the Predictive team. We understand
the sensitive nature of this information, and leave the distribution at the
discretion of First Union.
[****]
**** Represents material which has been redacted and filed separately with
the Commission pursuant to a request for confidential treatment pursuant
to Rule 406 under the Securities Act of 1933, as amended.
[****]
**** Represents material which has been redacted and filed separately with
the Commission pursuant to a request for confidential treatment pursuant
to Rule 406 under the Securities Act of 1933, as amended.
2
Reporting Methods
Status Reports:
The Productive Systems team will provide a weekly status report in electronic
forms to the First Union Program Manager. The report form will be brief, listing
any items that were completed that week and the open items for the next week.
The purpose of the reports is to provide weekly information on the status of the
project and any outstanding issues from the week. The reports will be available
on Monday morning, by 10:00 a.m.
Status Meetings:
There will be weekly status meetings with First Union on the overall project.
The meeting should be held at the same time and day every week (the time and day
to be determined). The meeting will be to review any work that was performed by
the Predictive Systems' team and review the open items list of work that is
scheduled for the next week. This meeting will also provide a platform for
reviewing any new issues or additional project requirements.
Project Management Summary
Project Duration
[****]
Figure 1 Project Timeline
[****]
Project Cost and Billing
[****]
**** Represents material which has been redacted and filed separately with
the Commission pursuant to a request for confidential treatment pursuant
to Rule 406 under the Securities Act of 1933, as amended.
3
[****]
Assumptions:
The following assumptions were used for the development of this proposal.
o A significant amount of organization process and technical documentation
exists and First Union.
o Any deviation from the Scope of Work defined herein will be documented and
discussed during weekly status meetings.
o First Union will make the appropriate resources available for Predictive
Systems to conduct this engagement in a timely manner (e.g. personnel for
interview, work space, available documentation, etc.)
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
Effective Date.
FIRST UNION CORPORATION PREDICTIVE SYSTEMS, INC.
[****]
**** Represents material which has been redacted and filed separately with
the Commission pursuant to a request for confidential treatment pursuant
to Rule 406 under the Securities Act of 1933, as amended.
4
