ISSC / OAO CORPORATION
Vendor Agreement
AGREEMENT NUMBER
The Vendor ("you" or "your") and Integrated Systems Solutions Corporation
("ISSC") agree that the terms and conditions of this ISSC Vendor Agreement
("Agreement") and any applicable Statement(s) of Work and/or Purchase Order(s)
will apply to the Services, Materials and/or Program Products that you provide
ISSC.
1. Definitions
a) "Acceptance" means, with respect to each Deliverable, written notification
from ISSC to you that indicates that the Deliverable has been evaluated and
satisfies the completion and acceptance criteria set forth in the Statement
of Work. Acceptance may be partial or complete, as dictated in such
notification.
b) "Customer" means ISSC's Customer identified in this Agreement or Statement
of Work or if no customer is specified, then the Customer is ISSC.
c) "Deliverable(s)" means any Services, Materials, Inventions or Program
Products procured or prepared by you under this Agreement or Statement of
Work. The Deliverable(s) also include all works subject to ISSC ownership
of license rights hereunder, if any (e.g., Materials and Inventions).
d) "Background Materials" means any materials included in the Deliverables
necessary for effective utilization thereof, in which the copyright rights
are owned by a third party or that you prepared or had prepared outside the
Statement of Work encompassed by this Agreement.
e) "Derivative Work" means a work based on Preexisting Materials including a
compilation. A Derivative Work prepared without authorization of the
copyright owner of the Preexisting Materials would be a copyright
infringement.
f) "Invention(s)" means any ideas, concepts, designs, techniques, discoveries
or improvements, whether patentable or not, that are conceived of or
reduced to practice by you or by one or more of your employees or agents in
the performance of the Services for ISSC or its Customer under this
Agreement and its Statement(s) of Work or Purchase Order.
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g) "Materials" means work products such as programs, program listings,
programming tools, all code (including machine readable media with
code), devices, documentation, reports, drawings and other tangible
materials which you deliver to ISSC as set forth in the Statement of Work.
Materials do not include Background Materials and/or Program Products.
h) "Program Products" means commercially available software products and
associated user documentation.
i) "Services" means those functions being delivered to ISSC or its Customer
pursuant to this Agreement and its associated Statement of Work.
j) "Statement of Work" means the document which will describe the project,
work to be performed (Services), Materials to be delivered, detailed
technical and administrative requirements, payment schedule, and any
Program Products to be provided as well as any additional terms or
modifications to this Agreement.
k) "Purchase Order" means the document which will describe the project, work
to be performed (Services), Materials to be delivered, payment terms, as
well as standard terms and conditions.
2. Statement of Work / Purchase Order
a) You will furnish Services, Materials, and Program Products to ISSC as set
forth in a Statement of Work and/or a Purchase Order issued from time to
time by ISSC and accepted by you. The following order of precedence shall
control in the event of any conflict in terms and conditions:
1) the Statement of Work,
2) this Agreement, and
3) the Purchase Order
b) This Agreement and each Statement of Work shall be signed by an authorized
representative of each party. Either party may request a change to this
Agreement or a Statement of Work; provided, however, only an amendment to
the Agreement or a written approval for a change to a Statement of Work (a
"Change Authorization") signed by the authorized representative of each
party will modify this Agreement or Statement of Work.
c) Each party shall appoint a coordinator for the work to be performed under a
Statement of Work. Your coordinator shall have the authority to represent
you. ISSC's coordinator shall represent ISSC and be responsible for
determining the adequacy and acceptability of the Services. Materials, or
any Program Products you provide.
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3. Payments and Records
You will be paid for goods and/or services delivered under a Statement of Work
or Purchase Order issued under this Agreement in accordance with the Statement
of Work and/or Purchase Order.
Invoices are to be sent to ISSC National Accounts ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇. ▇▇▇ ▇▇▇▇,
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇. The Purchase Order number and/or the Service Agreement
number and the terms of payment shall be stated on the invoice(s).
The date used for calculation of terms of Payment shall be the date ISSC
receives an acceptable invoice.
You shall maintain account records, in accordance with generally accepted
accounting practices, to substantiate all invoices. Such records shall be made
available to ISSC during normal business hours and shall include payroll
records, expense accounts, attendance cards, and job summaries. You shall
maintain such records for one year from the date of final payment.
4. Ownership of Materials
a) ISSC shall own exclusively all Materials which result from the Services you
provide. Such Materials shall be deemed "Works Made for Hire." To the
extent that any of the Materials may not, by operation of law, be owned by
ISSC, you hereby assign to ISSC the ownership of copyright in such
Materials. ISSC shall have the right to obtain and hold in its own name
copyrights, registrations, and similar protection which may be available in
such Materials. You agree to assist ISSC as may be required to perfect
such rights.
b) You will identify in the applicable Statement(s) of Work all Background
Materials and their Owners. You will not include any Background Materials
in a Deliverable that have not been identified. You grant ISSC an
irrevocable, nonexclusive, worldwide, paid-up license to use, execute,
reproduce, display, perform, transfer, distribute, sublicense, and prepare
Derivative Works of, Background Materials and their Derivative Works. You
grant ISSC the right to authorize others to do any of the above. Such
license shall also apply to associated audio and visual works.
c) If a Statement of Work or Purchase Order issued under this Agreement
requires you to deliver Program Products to ISSC or ISSC's Customer wherein
such Program Products will be licensed to ISSC, the terms and conditions of
the "ISSC Software License - Outsourcing Agreement" shall apply to such
Program Products and shall be incorporated into and become part of this
Agreement.
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If a Statement of Work or Purchase Order issued under this Agreement
requires you to deliver Program Products that will be licensed by an ISSC
Customer, you shall allow ISSC the right to install, test and operate such
Program Products for the Customer. The Customer will be the licensee of
the Program Products. ISSC will not be a party to the license agreement
for any such Program Products nor assume any obligation for violations of
it.
d) No license or right is granted to you either expressly or by implication,
estoppel or otherwise to publish, reproduce, prepare derivative works of,
distribute copies of, publicly display or perform any of the Deliverables
except Background Materials of yours, either during or after the term of
this Agreement.
5. Invention Rights
a) With respect to any Invention, you hereby assign to ISSC, its parent,
International Business Machines Corporation (IBM) and IBM Subsidiaries and
Affiliates, any Invention together with the right to seek protection by
obtaining patent rights therein, and to claim all rights of priority
thereunder, and the same shall become and remain ISSC's property whether or
not such protection is sought. You shall, upon ISSC's request and at
ISSC's expense, cause patent applications to be filed on any Invention,
through solicitors designated by ISSC, and forthwith assign all such
applications to ISSC, its successors and assigns. You shall give ISSC and
its solicitors all reasonable assistance in connection with the preparation
and prosecution of any such patent applications and shall cause to be
executed all such assignments and other instruments and documents as ISSC
may consider necessary or appropriate to carry out the intent of this
Section.
b) To the extent that ISSC has the right to do so, ISSC hereby grants to you
an irrevocable, nonexclusive, nontransferable and fully paid-up license
throughout the world under any Invention assigned to ISSC pursuant to this
Section, and under any patents throughout the world issuing thereon,
including reissues, extensions, divisions, and continuations thereof
provided, however, that such license is not applicable to any Inventions,
patent applications, or patents related to appearance designs.
c) Nothing contained in this Agreement shall be deemed to grant either
directly or by implication, estoppel, or otherwise, any license under any
patents or patent applications arising out of any other Inventions of
either party.
6. Quality
You are expected to participate in achieving and demonstrating consistent and
sustained quality in the Deliverables you produce or supply on behalf of ISSC.
In conjunction with ISSC, you shall develop quality performance standards or
goals and your progress towards attaining these performance standards or goals
shall be identified through measurements described in applicable
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Statements of Work. Your quality performance on completed projects for ISSC
will be considered in planning future ISSC contracting activities.
7. Warranties
a) You warrant that all Services will be performed in a workmanlike manner in
accordance with industry standards and practices applicable to the
performance of such Services.
b) You warrant that the Services, Materials, and Program Products that you
provide shall perform as described in any documentation relating to a
Statement of Work and shall be free from defects. For Program Products and
Materials, this warranty shall extend for three months following acceptance
by ISSC. In the event of a warranty breach, you agree to replace, repair,
and/or modify the Services, Materials, and Program Products without charge
and without delay. Additionally, you agree to test programming Materials
for virus(es) and to remove any such virus(es) before use by ISSC or its
Customer.
c) You certify the originality of the Materials prepared for or submitted to
ISSC hereunder. You shall satisfactorily complete and submit to ISSC, when
required, a certificate of originality and acceptance of such certificate
by ISSC shall be a condition of final payment to you. You warrant that the
rights that you grant to ISSC for the use or distribution of Materials,
Background Materials and Program Products do not violate any intellectual
property rights of yours or any third party.
d) You warrant that no portion of the Materials or Program Products is
confidential to you or any third party.
8. Confidential Information
a) "Confidential Information" means that information:
1) disclosed to you by ISSC or its Customer in connection with and during
the term of this Agreement;
2) which relates to ISSC's or its Customer's past, present and future
research, development and business activities, including financial and
client/Customer data; or
3) which has been identified to you at the time of disclosure as
Confidential Information of ISSC or its Customers.
It shall also mean the Deliverables specified in the Statement of Work or
Purchase Order of this Agreement, including drafts and associated
materials. The term "Confidential Information" shall not mean any
information which is previously known to you without
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obligation of confidence, or, without breach of this Agreement. is publicly
disclosed prior to or subsequent to your receipt of such information, or
which is rightfully received by you from a third party without obligation
of confidence.
b) You agree to hold all such Confidential Information in trust and confidence
for ISSC and its Customer and not to use such Confidential Information
other than for the benefit of ISSC and its Customer. Except as may be
authorized by ISSC in writing, you agree not to disclose any such
Confidential Information, by publication or otherwise, to any person other
than those persons whose services you require who have a need to know such
Confidential Information for purposes of carrying out the terms of this
Agreement, who agree in writing to be bound by, and comply with, the
provisions of this Section, and who ISSC or its Customer has approved in
writing for receipt of such Confidential Information.
c) You may not copy any Confidential Information except as explicitly approved
in writing by ISSC or its Customer.
d) You agree to secure all writings, documents and other media that embody
Confidential Information in locked files at all times when not in use to
prevent its loss or unauthorized disclosure, and to segregate Confidential
Information at all times from the material of others.
e) Upon completion of the Services detailed in the Statement of Work or
termination or expiration of this Agreement, you will return to ISSC all
written or descriptive matter, including but not limited to drawings,
blueprints, descriptions, or other papers, documents, tapes, or any other
media which contain any such Confidential Information. In the event of a
loss of any item containing such Confidential Information, you shall
promptly notify ISSC in writing.
f) In providing Services under this Agreement, you understand that ISSC does
not wish to receive from you and you agree not to provide to ISSC directly
or through others any information which may be considered confidential
and/or proprietary to you and/or to any third party, except as otherwise
expressly set forth in this Agreement or the Statement of Work.
9. Personnel
a) Personnel provided by you will not for any purpose be considered employees
of ISSC. Your personnel shall make no commitments on behalf of ISSC for any
purpose. You assume full responsibility for their actions while performing
hereunder and shall be responsible for their supervision, daily direction
and control. You will retain full responsibility for payment of salary
(including withholding of income taxes and social security), workers
compensation, disability benefits and the like. Nothing in this
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Agreement grants you or any of your employee(s) any additional right under
any ISSC employee benefit plan.
b) You shall inform ISSC when you plan to assign a former ISSC or IBM employee
to perform work under this Agreement. ISSC reserves the right to
disapprove the assignment.
c) You agree to adhere to the reasonable workplace rules of conduct of the
Customer when performing work on the Customer's premises. If work is to be
performed on ISSC's and/or Customer's premises, you agree to sign and abide
by the terms and conditions of the ISSC Residency Agreement.
10. Term and Termination
a) IBM Global Services may, for reason other than cause, terminate a Statement
of Work or Purchase Order issued under this Agreement under the following
conditions:
1) If IBM Global Services' contract with its customer has been terminated
for cause, IBM Global Services may terminate any Statement of Work or
Purchase Order by giving you written notice of such termination in
accordance with the provisions of this Agreement. In the event such
termination by IBM Global Services, IBM Global Services shall not
incur any obligation to pay you a termination fee or penalty as a
consequence of such termination. IBM Global Services shall be
obligated to pay you, in addition to any other payments that may be
required under this Agreement, compensation in accordance with the
payment provisions of the terminated Statement of Work or Purchase
Order for all goods and/or Services delivered prior to the date of
termination.
2) If IBM Global Services' contract with its customer has been terminated
for convenience, IBM Global Services may terminate any Statement of
Work or Purchase Order by giving you written notice of such
termination in accordance with the provisions of this Agreement. In
the event such termination by IBM Global Services, IBM Global Services
shall pay you, in addition to any other payments that may be required
under this Agreement, both compensation in accordance with the payment
provisions of the terminated Statement of Work or Purchase Order for
all goods and/or Services delivered prior to the date of termination
and five per cent (5%) of the remaining contract value from the date
of termination."
b) In the event of a default by you, ISSC will provide you written notice
thereof. If the default is not remedied within ten days or within the
time stated in the notice, ISSC may terminate this Agreement, the Statement
Of Work or any portion thereof.
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c) In the event of any termination of this Agreement or Statement Of Work, you
agree to promptly provide ISSC with all Materials, Inventions, Program
Products and other items associated with the Statement Of Work and
otherwise comply with the terms and conditions of this Agreement and the
Statement Of Work with respect to intellectual property rights.
d) The rights and obligations of Sections 3, 4, 5, 6, 8, 9, 10 and 11 shall
continue after expiration or termination of this Agreement and shall bind
the parties and their legal representatives, successors, heirs, and
assigns.
11. Indemnification
a) You shall be liable for damages, expenses, claims, costs and liabilities,
including, without limitation, costs of settlement and investigation, court
costs and attorneys' fees and disbursements (collectively "Losses") which
result from the wrongful or negligent acts or omissions of your employees
or of the personnel you provide.
b) You shall indemnity, defend, and hold ISSC harmless from and against any
and all Losses arising out of or in connection with bodily injury or death
or for damage to real property or to tangible personal property arising out
of or in connection with your performance under this Agreement.
c) You shall indemnify, defend, and hold ISSC and its Customer harmless from
and against any and all Losses that may result by reason of any
infringement or claim of infringement of any intellectual property rights
associated with the use of Services, Materials, Inventions or Program
Products provided in connection with this Agreement.
12. Limitation of Liability
a) Each party's liability for actual or direct damages from any cause
whatsoever arising under this Agreement will be limited for each event to
the greater amount of $100,000 or the Statement of Work value.
b) IN NO EVENT WILL EITHER PARTY BE LIABLE FOR ANY CONSEQUENTIAL DAMAGES
(INCLUDING LOST PROFITS, LOST REVENUE OR SAVINGS) OR INDIRECT, PUNITIVE,
SPECIAL OR INCIDENTAL DAMAGES, EVEN IF INFORMED OF THEIR POSSIBILITY. The
foregoing limitation shall not apply to any obligations you may have under
Sections 8 and 11. Any procurement costs associated with your breach of
this Agreement or a Statement of Work shall be deemed direct damages.
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13. Applicable Laws
You shall at your own expense comply with all laws and regulations of federal,
state, and local government authorities relating to your obligations under this
Agreement. including without limitation, the Occupational Safety and Health Act
of 1970, Executive Order 11246 (as amended) of the President of the United
States on Equal Employment Opportunity and the Rules and Regulations issued
pursuant thereto, all environmental laws, ordinances. codes, rules, regulations,
license and permit provisions, guidelines and directives, the Immigration Reform
and Control Act of 1986, the Foreign Corrupt Practices Act. and the import and
export laws and regulations of the United States Customs Services. the United
States Department of Commerce and Department of State, and shall procure all
licenses and pay all fees and other expenses required thereby.
14. General
a) Except as expressly provided in this Agreement, Statements of Work or
Purchase Orders, you shall be entitled to no further payment, cost
reimbursement or other compensation for Services, Materials, Inventions,
Program Products or other Deliverables hereunder.
b) You shall not use ISSC's or ISM's trademark, trade name, logo, or other
designation for any reason without ISSC's prior written consent.
c) You shall at your own expense, provide and keep in full force and effect
during the term of this Agreement at least the following kinds and minimum
amounts of insurance covering services you provide in the state(s) in which
the work is to be performed:
1) Worker's Compensation Insurance including employer's liability for the
statutory amounts.
2) Commercial General Liability Insurance with combined single limits of
$1,000,000 each occurrence for bodily injury and property damage,
including personal and advertising injury with the following
extensions of coverage:
a) Premises Operations.
b) Products and Completed Operations, for at least two years
following expiration or termination of this Agreement.
c) Contractual Liability for the liability assumed by you under the
Section entitled Indemnification.
General Liability insurance requirements for sole proprietors
operating as ISSC vendors will be satisfied by procuring a Business
Owners Policy with a $1.000.000 limit of liability.
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3) Comprehensive Automobile Liability Insurance with limits of $250,000
per person/$500,000 per occurrence for personal injury and $200,000
per occurrence for property damage for owned, non-owned, and hired
vehicles used by you while performing Services in connection with this
Agreement.
You shall provide ISSC with a Certificate of Insurance upon request,
evidencing this insurance and providing that the insurer shall give
ISSC at least thirty days prior written notice of material change in
or cancellation of such insurance. Such Certificates of Insurance
must name ISSC as an additional insured under items 14.c.2 and 14.c.3
above.
d) Nothing in this Agreement shall be construed as prohibiting or restricting
ISSC from independently developing or acquiring and marketing materials
and/or programs which are competitive with those delivered hereunder.
e) You shall not sell, transfer, assign or subcontract any right or obligation
hereunder without the prior written consent of ISSC.
f) You represent that you are under no obligation or restriction, nor will you
assume any, which would interfere or present a conflict of interest with
the work that you perform under this agreement.
g) You represent that you are incorporated or organized as a partnership under
the laws of a state in the United States.
h) ISSC is free to determine the price charged to its Customer for the
Services, Materials and Program Products that you provide to ISSC.
i) This Agreement does not obligate ISSC to issue any Statement(s) of Work or
Purchase Order(s), nor are you obligated to accept any specific Statement
of Work or Purchase Order.
j) The laws of the State of New York shall govern this Agreement.
THE PARTIES ACKNOWLEDGE THAT THEY HAVE READ THIS AGREEMENT, UNDERSTAND IT, AND
AGREE TO BE BOUND BY ITS TERMS AND CONDITIONS. FURTHER, THE PARTIES AGREE THAT
THE COMPLETE AND EXCLUSIVE STATEMENT OF THE AGREEMENT BETWEEN THE PARTIES
RELATING TO THE OBLIGATIONS DESCRIBED HEREIN CONSISTS OF 1) THIS AGREEMENT, 2)
ITS ATTACHMENT(S), 3) ITS ADDENDA, 4) ANY STATEMENT(S) OF WORK, 5) ANY CHANGE
AUTHORIZATIONS(S), AND 6) ANY OTHER AGREEMENTS REFERENCED HEREIN. THIS
STATEMENT OF THE AGREEMENT SUPERSEDES ALL PROPOSALS
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OR OTHER PRIOR AGREEMENTS, ORAL OR WRITTEN, AND ALL OTHER COMMUNICATIONS BETWEEN
THE PARTIES RELATING TO THIS SUBJECT.
Accepted by: Accepted by:
Integrated Systems Solutions Corporation OAO Corporation
By_______________________________ By____________________________
Authorized Signature Authorized Signature
_________________________________ _______________________________
Name (Type or Print) Name (Type or Print)
_________________________________ _______________________________
Address Address
_________________________________ _______________________________
City, State and Zip Code City, State and Zip Code
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