KINKO'S AGREEMENT WITH GENISYS
Acquisition, Modification, and Implementation of the
Genisys
Enterprise Project Management System
Consulting and Software License Agreement
THIS AGREEMENT is made as of this 1st day of August, 1999 ("Effective
Date") by and between Genisys Information Systems, Inc., a Colorado
corporation with offices at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇
▇▇▇▇▇, its affiliates and subsidiaries (collectively "Genisys" or
"Consultant") and Kinko's, Inc., a Delaware corporation with offices located
at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇, (hereinafter
referred to as "Kinko's").
A. Kinko's owns and operates more than 900 retail service locations that
provide a variety of business services and reproduction products to
commercial and retail customers around the world under the trademark,
Kinko's(-Registered ▇▇▇▇-).
B. Consultant provides software applications and consulting services
designated to facilitate the integration and management of project
information to enable organizations to improve business performance.
C. Consultant has been providing services from time to time for Kinko's
since on or about July 13, 1999. Kinko's and Consultant desire to
memorialize their agreement regarding such services on the terms and
conditions contained herein.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which hereby acknowledged, the parties agree as follows:
1. Engagement of Consultant. Kinko's hereby engages Consultant to perform
consulting services from time to time, as specifically agreed and
described in this Agreement and on each schedule issued hereunder and
attached hereto and incorporated herein by this reference (collectively
"Services"). Consultant hereby accepts the engagement, and agrees to
perform the Service upon the terms and conditions set forth herein.
Additional schedules may be added fromtime to time as mutually agreed
between the parties. The term "Services" as used herein shall include
all services and deliverables described in all schedules attached hereto.
Consultant may be required to perform Services at the Kinko's offices
located at ▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, Consultant's
Houston office, or at another location as may be authorized in writing by
Kinko's. To the extent that any provision of any schedule(s) attached
hereto and incorporated herein conflicts with any provision of this
Agreement, the specific provision of the schedule(s) shall take
precedence over this Agreement.
2. Term. This Agreement shall remain in effect from the Effective Date
through July 12, 2000, unless terminated sooner in accordance with the
provisions of this Agreement ("Term"). Each schedule issued hereunder
may define its own term which may extend beyond the Term of this
Agreement in which case the terms and conditions of this Agreement shall
survive and continue through the expiration date of each respective
schedule. The Term of this Agreement may be extended by the mutual
written consent of the parties as evidenced by an amendment to this
Agreement.
3. Consultant agrees to provide to Kinko's, if requested, periodic written
reports if its activities in sufficient detail to evidence the nature and
scope of the Services provided, and to provide work products and related
documents such as trip reports indicating persons visited and subjects
discussed, minutes of meetings and collateral memoranda and reports.
4. Consulting Fees and Expenses. For Services rendered under this Agreement,
Consultant shall be paid in accordance with the applicable Schedule(s)
attached hereto. Consultant shall submit invoices for all Services
rendered hereunder in accordance with the applicable schedule attached
hereto. Upon presentation of such invoices in form and detail
satisfactory to Kinko's, Kinko's shall make payment within thirty (30)
days of receipt of an acceptable invoice. If Kinko's makes payment within
ten (10) days of the date of receipt of the invoice, Consultant will
allow for a one percent (1%) early payment discount of the amount billed.
Except as may otherwise be provided in any Schedule, Consultant shall be
entitled to reimbursement of certain expenses in accordance with Kinko's
expense reimbursement policies. All expenses must be preapproved by
Kinko's and shall be supported by appropriate documentation.
5. Staffing, Fiduciary Standards and Conflict of Interest. (A) Staffing. If
Consultant assigns employees or agents to perform the Services or any
portion thereof under this Agreement, then in such event, such parties
shall be adequately trained to perform the Services ("Team") and informed
of the relevant terms and conditions of this Agreement. Consultant agrees
to allow Kinko's the right to approve each member of the Team who will
then be listed on the applicable Schedule attached hereto. Consultant
shall not remove any person from the Team unless Kinko's is given ten
(10) business days prior written notice of such change, along with the
names of potential replacements. In the event Kinko's finds any of the
Consultant's personnel unsuitable, Kinko's shall notify Consultant.
Consultant must submit replacement candidates for Kinko's approval within
five (5) days following receipt of such notice. (B) Fiduciary Standards
and Conflict of Interest. At all times during the performance of
Consultant's, its employees, agents and/or subcontractors, if any, duties
under this Agreement, each party shall adhere to the highest, fiduciary
standards, ethical practices and standards of care and competence. During
the period of their respective assignment to perform Services under an
applicable Schedule, Consultant's Team members performing such Services
shall not concurrently provide services to the named competitors of
Kinko's identified in the attached "Listing of Kinko's, Inc. Competing
Organizations" ("Kinko's Competitor List") which is incorporated herein
by this reference. Kinko's may amend the Kinko's Competitor List from
time to time upon written notice to Consultant. If Consultant is
currently performing Services for a newly identified competitor,
Consultant may continue such engagement and such engagement shall not be
a breach of this section. Consultant shall not otherwise be prohibited
from providing consulting services to other persons and organizations.
Consultant shall devote such reasonable time, effort, and attention to
the performance of Consultant's Services under this Agreement as Kinko's
deems reasonably necessary under the circumstances. Consultant shall be
liable for the acts of its agents and employees.
6. Compliance with Laws. Consultant shall, at its sole expense, promptly
comply with all lawful statutes, ordinances, rules, orders, regulations,
and requirements of the federal, state, local or municipal governments
now in force or hereafter enacted insofar as the conduct of business and
its performance of the Services and all of its other obligations pursuant
to this Agreement throughout the term of this Agreement including without
imitation, all applicable requirements of the Fair Labor Standards Act,
as amended.
7. Indemnification by Consultant. Consultant shall indemnify, defend and
hold harmless Kinko's, its affiliates, subsidiaries or assignees, and
their respective directors, officers and employees, agents and
shareholders from and against all losses, claims, actions, liabilities,
damages and all expenses incidental to such claims or actions, (including
without limitation reasonable attorneys' fees and costs), based upon or
arising out of damage to property or injury to persons or other tortious
acts caused by the negligent acts, errors or omissions of Consultant or
any person whom Consultant is legally responsible;; or any untrue or
inaccurate representation made in the course of performance under this
Agreement, provided the Consultant's aforesaid indemnity and hold
harmless agreement shall not be applicable to any liability based upon
the sole negligence of Kinko's.
8. Intellectual Property Infringement Indemnity. Consultant, at its own
expense, shall indemnify and hold harmless Kinko's, its subsidiaries,
affiliates or assignees, and their directors, officers, employees, agents
and shareholders and defend with counsel approved by Kinko's any action
brought against same with respect to any claim, demand, cause of action,
debt or liability, including attorneys' fees and costs, to the extent
that such action, claim, demand, cause of action, debt or liability
arises out of a claim that any of the Services or Software (as defined in
Schedule A attached hereto and incorporated by this reference) provided
hereunder infringes, violates or misappropriates any patents, copyrights,
trade secrets, licenses, or other intellectual property rights of any
third party. Kinko's may, at its own expense, assist in such defense if
it so chooses, provided that, as long as Consultant can demonstrate
sufficient financial resources, Consultant shall control such defense and
all negotiations relative to the settlement of any such claim. Kinko's
shall promptly provide Consultant with written notice of any claim that
Kinko's believes falls within the scope of this paragraph. In the event
that the Software provided hereunder, or any portion thereof is held to
constitute an infringement and its use is enjoined, Consultant shall have
the obligation to, at its expense, (i) modify the infringing Software
without impairing in any material respect the functionality or
performance, so that it is non-infringing, (ii) procure for Kinko's the
right to continue to use the infringing Software, or (iii) replace the
Software with equally suitable, non-infringing software. If none of the
foregoing alternatives are available to Consultant, and an action, claim,
demand, cause of action, debt or liability arises during the first twelve
(12) months of this Agreement then Kinko's at its option; may terminate
this Agreement without liability and receive repayment of all monies paid
to Consultant. If such action, claim, demand, cause of action, debt or
liability arises following such initial twelve (12) month period, then in
such event Kinko's, at its own option, may terminate this Agreement
without liability to Consultant. Notwithstanding anything herein to the
contrary, Consultant may not settle any action or claim without the prior
written consent of Kinko's, which consent shall not be unreasonably
withheld.
9. Insurance.
a. Consultant agrees to maintain at its own expense, during the Term of
this Agreement, and for one (1) year thereafter if Consultant's
coverage as depicted below is on a claims made basis, with an
insurer of insurers acceptable to Kinko's with a current rating by
Best of an A-VII or higher, the following insurance coverage:
(1) Commercial general liability insurance including
products/completed operations, blanket contractual liability,
and personal injury and advertising injury liability coverage
in amounts no less than Five Million Dollars ($5,000,000.00)
combined single limit for each single occurrence for bodily
injury and property damage and Five Million Dollars
($5,000,000.00) in the general aggregate;
(2) Disability Insurance, as required by federal or state law, for
each of its employees;
(3) Automobile liability insurance covering owned, non-owned and
hired automobiles with a bodily injury and property damage
combined single limit in the amount of no less than One Million
Dollars ($1,000,000.00) per occurrence; and
(4) Worker's compensation insurance, as required by law, for each
of its employees.
b. Prior to the commencement date of this Agreement Consultant shall
submit to Kinko's a certificate evidencing such insurance and the
appropriate additional insurance endorsement evidencing that Kinko's
has been named and is covered as an additional insured party on said
insurance and, with respect to any claim for which Consultant is
obligated to indemnify Kinko's, that said insurance shall be primary
coverage before any other similar insurance available to Kinko's.
The certificate and/or endorsement, as applicable, shall provide for
at least thirty (30) days advance written notice to Kinko's of any
cancellation or reduction in such coverage. In the event that
Consultant fails to obtain or maintain said insurance coverage as
provided herein, Kinko's shall have the right, but not the
obligation, to obtain such insurance coverage and ▇▇▇▇ the
Consultant for the cost thereof.
c. LIMITATIONS ON INDEMNIFICATION. EXCEPT FOR OBLIGATIONS OF
INDEMNIFICATION AND BREACHES OF CONFIDENTIALITY UNDER NO THEORY OF
LIABILITY SHALL EITHER PARTY TO THIS CONTRACT BE LIABLE TO THE OTHER
OR TO ANY THIRD PARTY FOR LOST PROFITS, LOST SAVINGS, LOSS OF
INFORMATION OR DATA OR ANY OTHER SPECIAL, INDIRECT, CONSEQUENTIAL OR
INCIDENTAL DAMAGES, HOWEVER CAUSED, ARISING IN ANY WAY OUT OF ANY
PERFORMANCE OR FAILURE TO PERFORM UNDER THIS AGREEMENT EVEN IF THE
PARTIES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND
NOT WITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED
REMEDY.
d. None of the requirements contained herein as to the types, limits
and approval of insurance coverage to be maintained by Consultant
are intended to and shall not in any manner limit or qualify the
liabilities and obligations assumed by Consultant under this
Agreement
10. Independent Contractor. Consultant is and shall continue to be an
independent contractor and not an employee of Kinko's and is not
authorized to act as or represent itself as an agent of Kinko's for any
purpose whatsoever and shall not, commit Kinko's to any agreement,
contract or undertaking. Consultant shall not use the Kinko's name on its
business cards, stationary or in any promotional material. Consultant
shall conduct all of its business in its name and not in the name of or
as a representative of Kinko's. The Consultant shall be obligated to pay
any and all applicable state, federal and employment taxes applicable to
Consultant, its employees, agents and/or subcontractors. Kinko's shall
not be responsible to Consultant, its employees, agents and/or
subcontractors, or any governing body for any payroll related taxes
related to the performance of the Services.
11. Taxes.
a. Income Taxes. By reason of the independent status of Consultant,
Kinko's is not required to and will not withhold federal, state or
local income or any other tax from any payment to Consultant under
this Agreement. Consultant agrees to execute the necessary
documentation and/or provide such information as Kinko's may need to
document the independent status of Consultant. From the information
provided by Consultant, Kinko's may file information returns with
the United States Internal Revenue Service or similar state or local
agencies regarding such payment under conditions imposed by
applicable law or regulations.
b. Sales and Use Tax. Consultant agrees to collect and remit to any
taxing jurisdiction in which Consultant is registered all applicable
sales and use taxes that may be due under the terms of this
Agreement. However, due to the method of delivery required by
paragraph 23, no sales or use tax will be due on any software
delivered electronically to Kinko's at the location designated by
Kinko's.
c. Property Tax. Consultant shall be liable for all property taxes due
on any property to be sold, transferred, or delivered to Kinko's
under the terms of this Agreement until such time as title to such
property passes to Kinko's.
12. Termination.
a. Notwithstanding anything herein contained to the contrary, Kinko's
may terminate this agreement at any time, on (14) fourteen days
written notice, for default of the Consultant. The following events
shall each constitute an event of default: (a) Consultant's failure
to perform one or more of its material obligations provided for in
this Agreement; or (b) Consultant's failure to maintain in full
force and effect the insurance referred to herein above; or (c)
Consultant's inability to pay its debts when due, or assignment for
the benefit of its creditors, or the filing of any petition under
the bankruptcy or insolvency laws of any jurisdiction, county or
place, or the appointment or suffer the appointment of a receiver or
trustee for its business or property, or adjudication as a bankrupt
or an insolvent; (d) Consultant's use of the Kinko's ▇▇▇▇ (as
hereinafter defined) without the prior written approval of Kinko's.
This event of default is not subject to cure.
b. Effect of Termination for Consultant's Breach: Termination by
Kinko's of any Schedule for Services or software support and
maintenance due to Consultant's default shall not, unless
specifically provided in Kinko's notice of default, affect Kinko's
rights to continue using the software provided to Kinko's under any
Schedule. This Agreement shall continue in effect as to the license
to use any such software. Kinko's shall be entitled to a pro-rata
refund of any support fees paid in advance for such software support
being terminated.
c. Termination for Convenience. Unless otherwise specifically provided
in any applicable Schedule, Kinko's may terminate support and
maintenance for any software product licensed to Kinko's at any time
upon thirty (30) days written notice to Consultant. Kinko's shall be
entitled to a pro-rata refund of any support fees paid in advance
for such software support being terminated. Either party may
terminate this Agreement at any time for any reason or no reason
upon thirty (30) days prior written notice. Notwithstanding the
foregoing, if Kinko's terminates this Agreement under this section,
Kinko's sole obligation shall be to pay Consultant for Services
performed up through the date of the termination notice in
accordance with any applicable Schedule; and if Consultant
terminates this Agreement under this Section, such termination shall
no affect any software license granted to Kinko's hereunder or
license to use the Creations and deliverables provided to Kinko's
under any applicable Schedule. Such termination shall not affect
Consultant's obligation to complete the Services outlined in any
Schedule.
13. Confidentiality and Non-Disclosure. Both parties acknowledges that during
the performance of Services hereunder, each party will have access to
certain of the other party's information, including without limitation,
technology, trade secrets, know-how, inventions, techniques, documents,
processes, schematics, drawings, contracts, customer lists, financial
information, computer programming code, methods of conducting business,
sales and marketing plans and information, and business plans relating to
the disclosing party's business which are proprietary and confidential to
the disclosing party (the foregoing, as well as all information and
materials developed pursuant to this Agreement, are collectively referred
to as "Confidential Information"). Confidential Information shall also
include, without limitation, any software, documentation, computer
programming code, processes, financial information or other information
of third parties which the disclosing party is required to maintain as
Confidential Information. All such third party property is also referred
to herein as Confidential Information. Both parties agrees that all items
of Confidential Information are proprietary to the disclosing party or
such third party, as applicable, and shall remain the sole property of
the disclosing party or such third party.
Each party agrees that all of its employees, agents and/or subcontractors
engaged by participating in the performance of Services under this
Agreement, shall be bound by the same confidentiality requirements as
those contained herein pursuant to a written agreement between said party
and such employee, agent and/or subcontractor.
Each party agrees as follows: (i) To use the Confidential Information
only for the purposes described herein; to not reproduce the Confidential
Information; to hold in confidence and protect the Confidential
Information from dissemination to and use by anyone not a party to this
Agreement; and to not use the Confidential Information to benefit itself
of others, except as contemplated by the terms of the applicable Schedule
and this Agreement. Except as provided for under the applicable Schedule
and this Agreement, neither party shall acquire any rights in the other
party's Confidential Information and may not create any derivative work
from such Confidential Information; (ii) To restrict access to the
Confidential Information to its personnel, if any, who (a) have a need to
have such access and (b) have been advised of and have agreed in writing
to treat such information in accordance with the terms of this Agreement;
(iii) To return all Confidential Information in its possession upon
termination of the applicable Schedule or upon request, whichever occurs
first; and (iv) To hold in confidence information and materials, if any,
developed pursuant to the consulting services hereunder. The provisions
of this Section 14 shall survive termination or expiration of this
Agreement and any of its Schedules.
14. Acceptance and Warranty. Consultant represents and warrants as follows:
a. That the Services provided hereunder do not infringe any copyright,
trademark, patent or other intellectual property rightof any third
party.
b. That all Services provided hereunder shall be performed in a
professional and competent workmanlike manner.
c. That all Services covered by this Agreement will conform with the
applicable Schedule(s) attached hereto, including the mutually agree
"Final Design Document" as defined and described in Schedule A
attached hereto and incorporated by this reference.
d. That Consultant is adequately funded and will remain adequately
funded throughout the Term of this Agreement to conduct its business
and perform the obligations as provided herein.
e. Consultant agrees that these warranties shall survive acceptance of
the Services by Kinko's. The warranties hereunder shall inure to the
benefit of Kinko's, its successors and assigns, customers and users
of its products.
f. All Services and deliverables provided hereunder are subject to
Kinko's review, inspection and acceptance during the performance of
this Agreement including, without limitation, to final inspection
and acceptance.
15. Year 2000 Compliance. Consultant warrants that the Services, Software,
Documentation and deliverables supplied hereunder, or associated with the
development, manufacture, delivery or support of products or services
hereunder shall accurately calculate dates up to, during, and after the
Year 2000 including leap year calculation capabilities required for
century date recognition, calculations which accommodate the same century
and multi-century formulas, and processing date values that reflect
century dates. All Services, Software, Documentation and deliverables,
individually and in combination, shall also provide correct results when
moving forward and backward in time across the Year 2000.
16. Attorney Fees. In the event that any dispute between the parties should
result in litigation or arbitration, the prevailing party in such dispute
shall be entitled to recover from the other party all reasonable fees,
costs and expenses or enforcing any right of the prevailing party,
including without limitation, easonable attorney's fees and expenses.
17. Assignment. This Agreement and the rights, duties, and obligations
hereunder may not be assigned or delegated by Consultant without the
prior written consent of Kinko's. This Agreement shall be binding upon
and inure to the benefit of the parties, and their respective successors
and assigns.
18. Prohibition Against Use of Trademark. In order to preserve the value of
the Consultant's and Kinko's respective name and/or any trademarks,
service marks, or tradenames (collectively, "▇▇▇▇") neither the
consultant nor the Kinko's shall make any use of any of the other's Marks
for any reason, including but not limited- to, advertising, press
releases, or other publicity, except upon the written authorization of
the releasing party in each instance.
19. Notices
a. All notices or communications permitted or required hereunder must
be in writing, delivered in person or transmitted by Registered or
Certified United States Mail, postage prepaid return receipt
requested, addressed as follows, unless such address is changed by
written notice: General Counsel, Kinko's, Inc., Legal Department ▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇. If to Genisys: GENISYS
Information Systems, Inc., Attn: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇.
b. Anything herein contained to the contrary notwithstanding, written
reports required by Paragraph 3 hereof, and invoices and payments
hereunder, may be transmitted to the parties' addresses and to the
persons indicated herein by First Class United States Mail or by
facsimile.
20. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of California.
21. Books and Records. Consultant shall keep all usual and proper records
related to the performance of Services described in this Agreement as
required in accordance with Generally Accepted Accounting Principles at
its principal place of business for a period of two (2) years following
the expiration or termination of this Agreement. Kinko's reserves the
right, upon seven (7) days notice, to audit Consultant's records, only as
such records relate to services under this contract, for the purpose of
verifying Consultant's compliance with the performance of Services
pursuant to the terms of this Agreement during the term of this Agreement
and for a period of two (2) years thereafter. Such audits shall be
conducted during normal business hours in such a manner as to not
unreasonably interfere with the normal business operations of Consultant
and shall be paid for by Kinko's unless material discrepancies are
disclosed. "Material" shall mean a discrepancy of five percent (5%) or
higher between the amounts billed to Kinko's and amounts detailed in the
pricing structure under this Agreement. If Material discrepancies are
disclosed, Consultant agrees to promptly reimburse Kinko's for the costs
associated with the audit. Consultant agrees to promptly correct any
deficiencies detected in an audit and shall promptly refund any
overpayments disclosed by such audit, or Kinko's may, in its election,
set-off any such overpayment against any monies subsequently due by
Kinko's to Consultant.
22. Survival. The obligations of either party hereunder with respect to
paragraphs 7. Indemnification; 8. Intellectual Property Infringement
Indemnity; 13. Confidentiality and Non-Disclosure;. 14. Acceptance and
Warranty; 15. Year 2000 Compliance; 16 Attorney Fees; and 18. Prohibition
Against Use of Trademark; and 20 Governing Law; shall survive termination
of this Agreement and remain binding on the parties.
23. Electronic Delivery. Any Software delivered hereunder, shall be
transmitted electronically via the Internet or a modem at an electronic
location designated by Kinko's or Consultant, as the parties shall agree.
In lieu of electronic delivery, Consultant or an authorized agent of
Consultant, shall deliver the Software via the "load and leave". process
to a Kinko's location in California. As used herein "load and leave"
shall mean that Consultant or its authorized agent shall install the
Software on Kinko's equipment, as Kinko's shall direct, and Consultant,
or its agent, as applicable, shall immediately remove the Software media
from Kinko's premises. Consultant shall retain possession and control of
the Software media at all times. At no time shall title or possession of
the Software media pass to Kinko's.
24. Parties in Interest. Except as expressly provided in law controlling on
the subject matter and the parties to this Agreement, nothing in this
Agreement shall confer any rights or remedies under or by reason of this
Agreement on any persons other than the parties to this Agreement and
their respective successors and assigns nor shall anything is this
Agreement relieve or discharge the obligation or liability of any third
person to any party to this Agreement, nor shall any provision give any
third person any right of subrogation or action over or against any party
to this Agreement.
25. Headings. All headings herein are inserted only for convenience and ease
of reference and are not to be considered in the construction or
interpretation of any provision of this Agreement.
26. Interpretation. In the event any claim is made by any party hereto
relating to any conflict, omission or ambiguity in this Agreement, no
presumption or burden of proof or persuasion shall be implied by virtue
of the fact that this Agreement was prepared by or at the request of a
party or its counsel.
27. Multiple Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which
shall constitute one and the same instrument.
28. Entire Agreement. This Agreement contains the entire Agreement between
the parties hereto and supersedes any prior understandings, commitments,
or agreements, oral or written, with respect to the subject hereof. This
Agreement shall not be modified, varied or amended except by a written
instrument of subsequent date duly executed by an authorized
representative of each party. If any provision of this Agreement is found
invalid, unenforceable, or illegal by any court of competent
jurisdiction, any such finding shall not affect the validity of the
remaining provisions which shall remain in full force and effect.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement effective
as of the date first written above.
GENISYS INFORMATION KINKO'S, INC.,
SYSTEMS, INC. a Delaware corporation
"Consultant"
By: By:
--------------------------- ------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Name: ▇▇▇▇ ▇▇▇▇▇▇▇
Title: President Title: Vice President, Real Estate
and Purchasing
Date: 12/10/99 Date: 12/10/99
------------------------- ----------------------------
*Must be individual of the organization authorized in writing to legally bind
the organization
PLEASE BE ADVISED THAT ADDITIONS, DELETIONS, MODIFICATIONS OR INTERLINEATIONS
TO THIS AGREEMENT WILL NOT BE ACCEPTED UNLESS FULLY INITIALED BY ALL PARTIES
WHO HAVE EXECUTED THIS AGREEMENT.
LISTING OF KINKO`▇.▇▇▇. COMPETING ORGANIZATIONS
Quick Printers
--------------
Alphagraphics
American Speedy
Copy Club
Franklin's (owned by ICED)
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Ink Well (owned by ICED)
Insty -Prints
Kwik Kopy (owned by ICED)
Lazerquick
Minuteman Press
PIP Printing
Quick Print (XYAN)
Signal Graphics
Sir Speedy
Transamerica Printing
Triangle Repro Centers
Mail & Ship Companies
---------------------
Mail Boxes, Etc.(MBE)
Office Supply Superstores
-------------------------
OfficeMax/Co Max
Office Depot
Staples
Office Equipment Companies
--------------------------
Danka (Kodak)
Ikon
▇▇▇▇▇▇ (division of ▇▇▇▇▇▇)
Pitney ▇▇▇▇▇
Xerox
Retail
------
TRM Copy Centers Corp.
Your Office USA
Commercial Printers
-------------------
▇▇▇▇▇ Corp.
Big Flower Press
Corporate Express
▇▇▇▇▇ Co.
Quad/Graphics
Quebecor Printing
R.R. ▇▇▇▇▇▇▇▇ & Sons
Standard Register
▇▇▇▇▇▇▇ Computer Services
World Color Press
Paper Companies
---------------
Action Communications, Inc.
American Greetings
Ampad Corporation
Beaver Print
Colors by Design
Computer Sensations
Domtar Papers
Fitzgraphic
FMI
Geographics, Inc.
Graphics Papers
Great Papers
Hallmark
Idea Art
MM Design
▇▇▇▇ School & Office Products
Micro Format
Paper Access
Paper Adventures
Paper Company
Paper Showcase
Papers by Design
Pride Paper
Queblo
Quill
Rediform
Reliable
Sonborn
▇▇▇▇▇▇ Corporation
Viking
Williamhouse Regency
Z-International
SCHEDULE A
To
Consulting and Software License Agreement
between Genisys Information Systems, Inc. and Kinko's, Inc.
Acquisition, Modification, and Implementation of the
Genisys Enterprise Project Management System
General Description of Services:
GENISYS (herein also referred to as "Consultant") will implement and configure
its Genisys Enterprise Project Management system (collectively "GEM", or
"Software") to create a project management tool (the "GENISYS Application")
for Kinko's that conforms to the requirements described herein and in the
Final Design Document. If there is a conflict in the Deliverables of this
Schedule A and the Final Design Document, the provisions of the Final Design
Document will prevail. The purpose of the GENISYS Application is to
efficiently track and manage Kinko's real estate development program. The
GENISYS Application tool will be comprised of the GEM Software and will use
Microsoft SQL 7.0 for its database with Microsoft Project 98 as the scheduling
engine.
The GEM Software is a state-of-the-art project management tracking and
reporting tool that shall enable Kinko's to manage and monitor large projects
more effectively. Mission critical information shall become available to all
levels of Kinko's management through the integration of Internet browsers and
web pages into the GEM system and shall enable appropriate users to access and
query project information across the Kinko's enterprise.
I. Scope of Work
A. Consultant shall configure its GEM for Kinko's Consultant Project as
follows:
1. Consultant will work with the Kinko's development team,
including a Kinko's retained consultant, The ▇▇▇▇▇▇▇▇ Group,
(collectively, "Kinko's Team") to complete a needs assessment
as specified by Kinko's prior to beginning the design of the
final system.
2. Consultant will produce a system design document ("Final Design
Document") for Kinko's Team approval that describes all of the
components and how they will be used at Kinko's. Consultant
shall deliver the Final Design Document to Kinko's within five
(5) days after full execution of this Agreement. Kinko's will
have seven (7) days after receipt of the Final Design Document
or seven (7) days after full execution of this Agreement,
whichever is later, to accept the Final Design Document or
provide Consultant with comments on this Document. If
additional iterations of the Final Design Document are made,
Kinko's will have seven (7) days in which to accept the Final
Design Document as modified from the date of resubmission by
Consultant. Consultant will have seven (7) days to make the
requested revisions. If no comments are received within seven
(7) days, the Final Design Document as last submitted to
Kinko's will be considered accepted by Kinko's.
3. Consultant will develop scheduling templates that will be used
to populate the Kinko's database. These templates will be
accessible from a Kinko's web site for creating new project
plans and shall be developed in coordination with Kinko's.
4. Consultant will convert Kinko's existing access database for
Kinko's Real Estate Project Management Information System
("KinkoBuilder") to populate the GEM. The GEM shall contain all
of the data in KinkoBuilder excluding those fields that appear
on the Details tab, which can be contained in the fields of the
Microsoft Project 98 database schema. The exact data mapping
will be defined in the Final Design Document. Data converted
will be synchronized by Consultant, however Kinko's is
responsible for validity/ accuracy of such data.
5. Consultant will configure and implement its GEM status module
and GEM web generation module to meet the design requirements
listed in the final system design document as described in
subparagraph I. A. 2. above.
6. Consultant will work with Kinko's senior management or their
designees to implement the GEM business rules and those
specified by Kinko's Team as agreed upon in the Final Design
Document.
7. Data contained within the Kinko's Real Estate Project
Management Tool defined below in paragraph II. A. will be based
on the data that can be contained within the fields in
Microsoft Project 98.
8. Consultant will provide training documentation for each module
within the solution in electronic format such that Kinko's can
modify the documentation to tailor Kinko's needs for training
and ongoing documentation purposes.
9. Consultant will conduct four (4) levels of training for Kinko's
users in Kinko's Ventura, California offices. Level 1 is for
web viewers to gain an understanding of the GEM Kinko's web
site and how to use it. Level 2 is for Kinko's users who will
use the web for statusing and creating new projects. Level 3 is
for Kinko's users who need training in the use of Microsoft
Project 98. Level 4 is for Kinko's users in need of
administration training. Kinko's is responsible for providing
the facilities and required computer and audio/visual
equipment. A total of thirty-eight (38) hours of training will
be allocated as follows:
Maximum Number
Attendees of
Level Description per class Hours/class Classes
----- ---------------- ---------- ----------- --------
1 Web Viewers 100 6 1
2 Editors 16 16 3
3 MS Project 98 8 8 1
4 Administrator 8 8 1
10. Consultant shall at Kinko's request provide assistance,
including without limitation, in creating custom reports and
views; modeling a trainer class; and developing a recommended
next phase plan for the progression of the scheduling/ status
tools at an additional cost as agreed between the parties
before additional work has begun.
11. Consultant shall develop and test the GEM to enable the GEM to
accommodate Netscape Navigator.
II. Real Estate Project Management Tool Requirements
A. Hardware/ Software Requirements: The following hardware and software
requirements will apply.
1. The Kinko's co-worker's computer must be using one of the
following operating systems: Windows 95, Windows 98, or Windows
NT (version 4.0 or later) at Kinko's cost.
2. The Kinko's co-worker's computer will be able to access an MS
SQL 7.0 database located on a network data server at Kinko's
cost. If the Kinko's co-worker's computer is located at a site
not serviced by Kinko's corporate network, it must be capable
of accessing the Kinko's corporate network via the Internet.
Connections to the Internet are Kinko's responsibility.
B. Consultant Application Requirements
1. The Consultant Application will run on the Kinko's co-worker's
computer. It will access data stored in an MS SQL database
located on a Kinko's network data server. The data server will
be accessible from any remote location using the current
Kinko's Intranet architecture.
2. The Consultant Application will provide the Kinko's graphical
user interface features of a typical windows-based application.
3. The Consultant Application will be the primary data capture
tool. Such application shall contain a security feature that
enables a "system administrator" to grant or restrict a Kinko's
coworker's capability to add, delete, modify, or view the data.
4. The Consultant Application will provide the capability to print
pre-defined reports as listed in Section C below. The data
contained in the reports shall be able to be filtered and
printed at runtime. Reports will be a combination of Microsoft
Project Views; Web Page Views; and Crystal Reports with drill
down capability. The pre-defined reports will be designed based
upon the example reports listed below in Section C.
5. The Consultant Application will provide the capability to
build, clear, and run queries based on most of the fields in
the database.
C. Report Requirements: The following reports will be able to be
filtered at runtime on the following data columns: personnel,
division, branch opening year; and scope. In the event that the
report requirements change by the delivery date, the Consultant will
make every effort to substitute, replace or deliver an equivalent
report. Any reports requested beyond those provided herein and which
are not a substitute, replacement or equivalent report will be
provided at an additional cost to be mutually agreed between the
parties before the report is provided.
1. Management Reports
a. New Branch Opening Calendar Report: Purpose is to provide
operations and corporate executive management with a list
of openings for a specified period into the future. It is
used in real estate task force meetings held every-other
week. Summarizes a list of projected and actual NEW BRANCH
openings by period (month). Organized at summary level and
by division.
b. Program Summary Report: Purpose is to provide operations
and corporate executive management with a "report card"
illustrating the status of the overall program against
plan. Summarizes openings for a defined program year in
terms of project scope and class. Organized at summary
level and by division.
2. Real Estate Reports
a. Real Estate Key Measures Report: No description available.
b. Real Estate Report For Real Estate Meeting: Purpose is to
provide operations with an update of the status of the
program and is a means to surface and resolve key issues
between real estate and operations. Status of projects
organized first by division, then status (open, dead,
active/hold), then area, then opening date.
c. REM Report: Purpose is to provide REM's with a day-to-day
working tool to manage their individual projects. Status
of projects for a specific REM, organized first by status
(active/hold only), then by area, then by location (state,
city?). Contains key information and a look ahead feature.
d. SIR Authorize To Proceed/Design In Report: Purpose is to
communicate to design the key information that initiates
the design-in milestone.
e. Signage Proposal Request Report: Purpose is to communicate
to sign vendor the key information that authorizes sign
proposal. Report is generated available on the Web Site
and can be printed to a hard copy. All key information for
a single project along with special instructions,
contacts, etc.
3. Design Reports
a. Architect/ATP (By Scope) Report: Purpose is to communicate
to the architect the key information that initiates site
investigation report, space plan and construction
documents. Report is generated available on the Web Site
and can be printed to a hard copy. All key information for
a single project along with special instructions,
contacts, etc.
b. Equipment List Request Report: Purpose is to communicate
to the AVP the key information that initiates the
equipment list preparation. Report is generated available
on the Web Site and can be printed to a hard copy. All key
information for a single project along with special
instructions, contacts, etc.
c. Design And Image Key Measures Report: Purpose is to
provide the director with summary level information about
the performance of his/ her department. Key performance
measures include durations between milestones, variance
from norms, workload and are organized by department, by
division, by area and by individual manager (PM, Senior
designer).
d. Design Report For Real Estate Meeting: Purpose is to
provide operations and real estate with an update of the
status of the Design & Image function's responsibilities
within the program and is a means to support real estate
in surfacing and resolving key issues between real estate
and operations. Note: The purpose is not for surfacing and
resolving issues between Real Estate and Design. Status of
projects organized first. by division, then status (open,
dead, active /hold), then area, then opening date.
e. Permit Summary Report: Purpose is to provide management
with historical information about the duration of
permitting for planning purposes and perspective. List of
projects that have completed permitting organized by
division and area with their permit in and out dates and
length of time in days, with average durations summarized
by division, area, project manager.
f. Pending Permits Report: Purpose is to provide management
and others with a specific view of the status of projects
in permitting within a division and area. List of projects
that are in permitting organized by division and area with
their permit in, permit due dates and comments. First sort
within area will be overdue by length of time overdue
(longest to shortest), then sorted by due date.
g. PM Report: Purpose is to provide PM's with a day-to-day
working tool to manage their individual projects. Status
of projects for a specific PM, organized first by status
(active/hold only), then by area, then by design status
(SIR, Space planning, CD's, Permitting, Construction)
location (state, city?). Contains key information and a
look ahead feature.
h. Designer Report: Purpose is to provide Designers with a
day-to-day working tool to manage their individual
projects. Status of projects for a specific Designer,
organized first by status (active/hold only), then by
area, then by design status (space planning, CD's), then
by location (state, city?). Contains key information and a
look ahead feature.
III. Fees
A. Kinko's agrees to pay Consultant the following sums for Services and
GEM Software, Maintenance and Support:
1. GEM Software License:
a. Twenty Five Thousand Dollars ($25,000.00), payable upon
full execution of this Agreement.
2. Services: Kinko's agrees to pay Consultant the following
hourly rates for Services depending on the title of the Team
member performing the Services. The total fees payable under
this Schedule for the Services outlined herein shall not exceed
the sum of One Hundred Twenty Three Thousand Five Hundred
Dollars ($123,500.00).
Principal or Senior Manager 250.00/per hour
Project or Technical Manager 185.00/per hour
Senior Developer 165.00/per hour
Senior Staff Consultant 150.00/per hour
3. Changes: Any changes requested by Kinko's which materially
affects Consultant's services resulting in an increase or
decrease in the scope of effort required by Consultant
described herein shall be referred as a "Change." If the Change
decreases the scope of effort required by Consultant,
Consultant shall submit its proposal for the associated
decrease in Consultant's cost of Services. If the Change
materially increases the scope of effort required, Consultant
shall submit a written proposal for any equitable adjustment in
fees directly associated with the scope of such Change.
Consultant shall submit all proposals to Kinko's designated
co-worker. All such Changes shall be negotiated in good faith
and mutually agreed upon between the parties and shall require
a written amendment to this Agreement.
B. Travel Expenses.
Kinko's shall pay Consultant for Consultant's reasonable out of
pocket expenses such as transportation, hotels, meals, on-line data
base fees and telephone, necessarily incurred by Consultant while
performing Services at Kinko's specific request not to exceed the
total sum of Twenty One Thousand Dollars ($21,000.00). These
expenses are in addition to the fees described in Section A.2.
above. Any expenses in excess of Twenty One Thousand Dollars
($21,000.00) shall require Kinko's prior written consent pursuant to
Section 4 of this Agreement.
C. Invoices.
Invoices shall be submitted at least monthly to Kinko's designated
co-worker. All invoices shall contain the following detail: (a)
Consultant's hours where hourly work is involved; (b) a description
of Services performed by Consultant substantiating the hours worked
as applicable; (c) identify project by name as such project is
defined by Kinko's designated co-worker; (d) other information as
reasonably required by Kinko's. Invoices shall be payable in
accordance with Section 4 of this Agreement; and (e) for any invoice
containing charges relating to software licensing, the invoice shall
state that the Software is being transmitted electronically via the
Internet or modem to Kinko's, or via the "load and leave" process to
a Kinko's location in California.
IV. Deliverables
A. Electronic Delivery. Any Software delivered hereunder, shall be
transmitted electronically via the Internet or a modem at one
electronic location designated by Kinko's or Consultant, as the
parties shall agree. In lieu of electronic delivery, Consultant or
an authorized agent of Consultant, shall deliver the Software via
the "load and leave" process to a Kinko's location in California. As
used herein "load and leave" shall mean that Consultant or its
authorized agent shall install the Software on Kinko's equipment, as
Kinko's shall direct, and Consultant, or its agent, as applicable,
shall immediately remove the Software media from Kinko's premises.
Consultant shall retain possession and control of the Software media
at all times. At no time shall title or possession of the Software
media pass to Kinko's.
B. Consultant's "Deliverables" may be in the form of hardcopy or
softcopy graphics, electronic files, written documentation, written
comments, or other tangible form ("Deliverables"). All documentation
shall be provided in the Kinko's specified softcopy version, and/or
software version on disk with a hard copy for each Deliverables, as
specified by Kinko's, providing the format can be produced using one
of Microsoft's standard Office Suite products (i.e. Word, Excel,
PowerPoint, Access). Certain Deliverables may be delivered to
Kinko's in Adobe Acrobat format.
V. Consultant's Team
The Team assigned to perform the Services under this Agreement shall be
Consultant's Sr. Vice President; Sr. Project Manager; Los Angeles Area
Representative; and a Sr. Developer. Team members may be changed pursuant
to Section 5. of the Agreement.
VI. Kinko's Team
Kinko's designated co-worker(s) under this Agreement shall be ▇▇▇▇ ▇▇▇▇▇▇
or his respective designee(s).
Kinko's Team assigned under this Agreement shall consist of Kinko's
Program Manager; Kinko's Project Manager, Kinko's Lease Administration
Manager; Kinko's Director of Real Estate; Kinko's Director of Design and
Image; Division Counsel, Eastern Division; or each of their respective
designee(s).
VII. Term
The Term of this Schedule A shall begin as of the Effective Date and
continue through February 15, 2000 or until Kinko's has accepted
Consultant's completed performance of the Services, unless terminated
sooner in accordance with the provision of this Agreement. Subsequent
phases of work will be addressed in additional schedule(s) to the
Consulting and Software License Agreement as mutually agreed upon by
Consultant and Kinko's.
VIII. Warranty
Consultant hereby warrants that the GEM Software developed by Consultant
provided hereunder will contain features and functionality that Kinko's
agreed to in the Final Design Document. Such warranty shall be in effect
for one hundred and twenty (120) days from acceptance of the Software by
Kinko's. Acceptance of Software shall begin after Consultant has
installed the GEM Software. Kinko's shall conduct all its own testing
against the criteria established in the Final Design Document. In the
event that the GEM Software fails to meet the criteria established in the
Final Design Document as shown from the results of Kinko's testing and
provided in writing by Kinko's to Consultant, Consultant will have thirty
(30) days from Kinko's notice in which to correct such defect and cause
the GEM Software to fulfill the Final Design Document's criteria. In the
event Consultant is unable to cause the GEM Software to fully fulfill the
criteria as defined in the Final Design Document, Kinko's shall be
entitled to a refund as follows: (a) If the GEM Software as a result of
such defect or failure to meet the Final Design Document specifications
is unusable for Kinko's purposes as described in this Agreement and as
specified in the Final Design Document, then Kinko's shall be entitled to
an immediate refund of up to the $25,000 paid to the consultant for the
software. Kinko's shall remove and return to Consultant all copies of the
Software or certify that such Software has been destroyed; or (b) if
Kinko's desires to retain the Software despite the fact it does not fully
meet the Final Design Document specifications, then Kinko's shall receive
a prorata refund of the $25,000 software fee which are attributable to
the feature or function that is not performing as provided in the Final
Design Document.
IX. Kinko's Approval
Approval of Services and Deliverables. Services and Deliverables provided
to Kinko's by Consultant hereunder shall be reviewed and approved by
Kinko's designated co-worker. Kinko's shall accept or reject each.
Deliverable in writing within fifteen (15) days of receipt. Acceptance
shall not be unreasonably withheld. Any rejection shall state
specifically the manner in which the Deliverable is materially defective.
Consultant shall make the modifications necessary to correct such
material defects promptly, but no later than thirty-(30) days of receipt
of such notice of rejection, except as noted in the Section VIII.
Warranty, above.
X. License to Deliverables
Kinko's shall receive a license for the GEM Software as modified and
specifically configured hereunder as provided in Schedule B, attached
hereto and incorporated herein by this reference. Kinko's shall receive a
worldwide, perpetual, irrevocable, non-exclusive license to use the
Deliverables (except the GEM Software, which is provided pursuant to
Schedule B) in any manner in which Kinko's deems desirable, including
without limitation the right to transfer, assign or sublicense such
Deliverables.
XI. Source Code Escrow
Consultant shall place and maintain in escrow within sixty (60) days of
execution of this Agreement and at all times throughout the term hereof
and for a reasonable period thereafter as mutually agreed between the
parties at Kinko's sole cost and expense with an escrow agent as
designated by Kinko's specializing in software escrows, all versions of
the Software source code and any updates, upgrades and/or enhancements
thereto. This escrow shall contain the source code to the Software, any
updates, upgrades and/or enhancements thereto in magnetic media in the
original software programming language, a technical instruction manual,
an operator/user manual, maintenance tools (test software and software
specifications), descriptions of any proprietary or third party system
utilities (compiler, installer and assembler descriptions), descriptions
of system/software generation procedures, necessary non-Consultant
proprietary software to the extent that Consultant possesses a license or
other rights sufficient to allow transfer or sublicense, descriptions of
the system/software required for use and/or support for which Consultant
neither possesses, nor has rights sufficient to allow transfer or
sublicense, menu and support software or subroutine libraries in source
and object form, compilation procedures in machine readable form,
execution procedures in machine readable form and all other necessary and
available information which will enable a reasonably skilled computer
software programmer or analyst to reconstruct, maintain or enhance the
Software without the aid of Consultant, or any other person or reference
to any other materials. Such escrow agreement shall provide that Kinko's
shall be permitted to access and utilize all of the above referenced
items that are held in escrow in the event: (1) Consultant fails to
perform any material covenant or obligation contained in this Agreement;
(2) Consultant shall become insolvent, bankrupt, have an order of
receivership issued against it, file a petition of bankruptcy, make an
assignment of substantially all of its assets in favor of its creditors;
(3) Consultant, whether directly or through a successor or affiliate
ceases to be in the software business; (4) Consultant discontinues
Software as a product; or (5) Consultant elects not to provide Software
support to Kinko's. Such escrow agreement shall contain other terms and
conditions customary to software escrow transactions as mutually agreed
between the parties.
SCHEDULE B
To
Consulting and Software License Agreement
Between Genisys Information Systems, Inc., and Kinko's, Inc.
GEM SOFTWARE LICENSE AND SUPPORT
A. GEM Software Description. GEM is the state of the art Project
Management Tracking and Report tool enabling Kinko's organization to manage
and monitor large projects more effectively. Mission critical information
becomes available to all levels of management through the integration of
Internet browsers and web pages into the GEM system. This enables appropriate
users to access and query project information across the enterprise.
B. Software License. Consultant hereby grants to Kinko's a perpetual,
worldwide, irrevocable, non exclusive, enterprise-wide license (the "License")
to use the GEM computer software program supplied hereunder (the "Software")
on one server, and unlimited number of web viewers. Consultant shall provide
Kinko's with all appropriate materials applicable to the Software
("Documentation"). Consultant represents and warrants that it has all
necessary and appropriate rights to license the Software and Documentation
provided under this Agreement to Kinko's without violating any rights of any
third party; and there is currently no actual or threatened claim or
litigation pending by any third party against Consultant arising our of the
Software or Documentation.
C. Maintenance /Support Fees
1. The first fifty (50) hours of telephone support will be
provided at no additional charge.
2. Kinko's agrees to pay Consultant the total sum of Twelve
Thousand Five Hundred Dollars ($12,500.00) per year for
maintenance (defined below) for each year up to three (3)
years. Thereafter Consultant may increase maintenance fees for
the fourth year or any year thereafter. Provided however, such
increase shall not exceed ten percent (10%) of the prior year's
maintenance fees. All invoices shall be paid within forty-five
(45) days receipt.
3. If Kinko's exceeds the seventy-five (75) hours of telephone
support included in the annual maintenance fee provided in
paragraph C. 2 above, Kinko's shall have the following options:
Option 1: Kinko's may add seventy-five (75) hours of additional
telephone support for the sum of Five Thousand Dollars
($5,000.00) .
Option 2: Kinko's may add two hundred (200) hours of additional
telephone support for the sum of Ten Thousand Dollars
($10,000.00).
Option 3: Kinko's shall pay Seventy-Five Dollars ($75.00) per
hour for each additional hour of telephone support.
4. Telephone support will be tracked and billed in one-half (1/2) hour
increments.
5. Consultant shall provide Kinko's with a detailed report on a
quarterly basis during each annual maintenance term. Such report
shall set forth the number of calls made by Kinko's to Consultant,
the length of the call, and a description of the support required.
D. Software Maintenance.
1. Maintenance. Maintenance shall include without limitation,
seventy-five (75) hours of telephone support (pursuant to
Section 3 below) updates, upgrades, bug fixes, enhancements, if
any, to the Software. Consultant shall provide one (1) set of
documentation and one (1) machine executable copy of the object
code of the Software for each new release, update, upgrade
and/or enhancement. Kinko's may make additional copies of the
documentation and Software provided hereunder subject to the
terms and conditions of this Agreement.
2. Electronic Delivery. The Software and Maintenance shall be
provided electronically pursuant to paragraph 23 of the
Agreement.
3. Support. Telephone support shall be provided by professionally
trained personnel familiar with the Software and Kinko's
application(s).
a. Kinko's shall designate four (4) focal points for software
support issues, one from each of the following groups:
Kinko's Help Desk; Kinko's software development team;
Kinko's hardware engineering group; and Kinko's real
estate department.
b. Telephone support shall be available Monday through
Friday, 8:00 am through 5:00 pm, Central Standard Time
("CST") ("Standard Support Hours"), excluding
nationally-recognized holidays. A technician shall be
available to take Kinko's calls during Standard Support
Hours. After the Standard Support Hours, Consultant shall
have a technician available between the hours of 5:00 pm
and 12:00 am CST, Monday through Friday, excluding
nationally recognized holidays via a pager ("Non-Standard
Hours"). The technician shall return Kinko's page within
one (1) hour.
Consultant shall respond to Kinko's requests for Software support in
accordance with the severity levels described below:
Severity 1 Problems. Unrecoverable System Error. In the event the Software
does not operate or a substantial function or feature of the Software is
inoperable, which includes without limitation, processing of incorrect data or
the failure of any core module of the Software, then Consultant will assign
properly trained personnel familiar with the features and functions of the
Software to work on the problem within one (1) hour of Kinko's initial call.
Consultant shall coordinate its efforts and apply resources continuously on a
priority basis until the operation of the Software or the inoperable feature
or function is fully restored. It is understood that Consultant will make its
best efforts to resolve the error within forty-eight (48) hours. If such
correction is expected to take longer than forty-eight (48) hours, Consultant
will inform Kinko's in writing of such problem. However, Consultant agrees to
work continuously on such problem until it is resolved.
Severity 2 Problems. Application Database or other Error. In the event the
Software is operational but a specific function is inoperative or the
Software's functionality, taken as a whole, is significantly impaired or the
Software's performance is otherwise significantly degraded, Consultant shall
assign properly trained personnel familiar with the features and functions of
the Software to work on the problem within four (4) hours of Kinko's initial
call. Consultant shall continuously apply resources to restore the
functionality of the Software from the time of Kinko's notification to
Consultant and make every effort to fix and resolve the problem within
ninety-six (96) hours of notification.