HomeMy WebLinkAbout406312 WISDOMNET - CONTRACT - CONTRACT - 6608237WisdomNet, Incorporated Contract Number: 12112006
WisdomNet, Incorporated
l-TMST"" Integrated Talent Management System
Software Services Agreement
This Agreement ("Agreement'), and any Exhibits and/or Appendices attached hereto, is effective
this 12 day of December, 2006 ("Effective Date") and made by and between WisdomNet, Inc., a
Colorado corporation with its place of business at 1600 Stout Street, Suite 1800, Denver, CO
80202 ("WisdomNet' or "Consultant') and THE CITY OF FORT COLLINS, COLORADO, a
Municipal Corporation with its place of business at 215 North Mason Street, Fort Collins, CO
80522-0580 ("Client'), all as indicated on the signature page hereto. Each of WisdomNet and
Client may be referred to herein individually as "Party' or collectively as "Parties".
WITNESSETH
WHEREAS, WisdomNet is the developer, designer and owner of the I-TMSTm Integrated Talent
Management System (hereinafter defined), a proprietary software solution which automates or
enhances various human resource business processes;
WHEREAS, Client desires to use the I-TMSTm Talent Management System for its own internal
use under the terms and conditions hereinafter specified;
WHEREAS, WisdomNet is willing to provide Client with access to a hosted instance of the I-
TMS M Talent Management System;
NOW, THEREFORE, in consideration of the foregoing and the mutual covenants contained in this
Agreement, the Parties agree that the following terms shall govern the Agreement:
1. Certain Definitions
1.1. "Agreement"
These terms and conditions contained herein and any terms and conditions contained in
any attached Appendices.
1.2. "Affiliate(s)"
Any third party entity that now or in the future, directly or indirectly controls, is controlled
with or by or is under common control with Client. For purposes of the foregoing,
"control" shall mean, with respect to (a) a corporation, the ownership, directly or indirectly,
of fifty (50) percent or more of the voting power to elect directors thereof or, for purposes
of foreign corporations, if less than fifty percent (50%), the maximum amount allowed by
applicable law; and (b) any other entity, fifty percent (50%) or more ownership interest in
said entity, or with respect to other foreign entities, the power to direct the management
of such entity.
1.3. "Authorized User"
Defined as those individuals who have been given access to the Software Services by
Client by means of a username and password combination or those users whose
information has been stored in the I-TMSTm Talent Management System.
1.4. "Use"
To execute, access, employ, utilize, store, or display the Software or Software Services.
I.S. "Software Product"
The I-TMSTm Talent Management System which are proprietary computer software
programs in object code format, and their related materials which include user manuals,
Supporting Materials, and software release notes associated with them, including
updates, Modifications, new Versions, or new Releases of such software programs and
Supporting Materials as may be provided by WisdomNet to Client from time to time.
1.6. "I-TMSTm Talent Management System"
WisdomNet, Incorporated Contract Number: 12112006
profits, or anticipated sales, or on account of expenditures, investments, leases
or commitments in connection with the business or goodwill of the other party.
5. Continuing obligations. The respective rights and obligations of WisdomNet
and Client under the provisions of Sections 3, 6.2, 7, and 8 shall survive
termination of this Agreement.
6. Return or Destruction of Materials. Upon termination for cause, Client and its
Affiliate(s), shall either return to WisdomNet all Supporting Materials and
Proprietary Information (including all copies thereof) then in its possession,
custody or control or destroy all such Supporting Materials and Proprietary
Information and certify to WisdomNet in writing its election.
10. Independent Contractor
Client and WisdomNet are and at all times shall be and remain independent contractors as to
each other. At no time shall any persons furnished by WisdomNet be considered employees
or agents of Client, and no joint venture, partnership, agency or other similar relationship
shall be created or implied by virtue of this Agreement. WisdomNet shall be solely
responsible for its member's compliance with all applicable laws, rules, and regulations while
performing under this Agreement. Except as is expressly set forth herein, Client and
WisdomNet shall bear full and sole responsibility for their own expenses, liabilities, costs of
operation, and the like. The Parties do not and shall not have the power to bind one another
nor to assume or create any obligation or responsibility, express or implied, on behalf or in
the name of the other Party.
11. Assignment
Neither party shall assign this Agreement or any right of interest under this Agreement, nor
delegate any work or obligation to be performed under this Agreement, without the other
party's prior written consent. Any attempted assignment in contravention of this Section 11
shall be void and ineffective.
12. Non -solicitation
12.1. Neither Client nor WisdomNet shall directly or indirectly: (a) Induce any employee to
leave the employ of the other party or; (b) Solicit any employee of the other party to
work for any organization of which a party is an officer, director, employee, consultant,
independent contractor or owner of an equity or other financial interest;
12.2. The covenants contained in this Section 12 shall commence as of the effective date of
this Agreement, and shall continue for a period of six (6) months following the
termination of the Agreement.
13. Binding Effect
This Agreement shall be binding upon and shall inure to the benefit of the Parties, their
successors and permitted assigns.
14. Severability
In the event that any provision of this Agreement shall be held invalid, illegal, or
unenforceable in any jurisdiction, the validity, legality and enforceability of the remaining
provisions shall not in any way be affected or impaired thereby, nor shall the validity, legality
or enforceability of such provisions in anyway be affected or impaired in any other
jurisdiction.
15. Notices
WisdomNet, Incorporated Contract Number: 12112006
Notices or other communications to be given hereunder shall be in writing and may be
delivered personally, or shall be deemed delivered forty-eight (48) hours after depositing the
notice in the United States mail, postage prepaid, sent certified or registered mail, return
receipt requested, and addressed to the party to whom notice is required to be given at the
address set forth in Appendix 5 of this Agreement, or at such other address as any party
hereto may designate to the other party in writing.
16. Section Headings
The article, section, and paragraph headings in this Agreement are for convenience only, and
shall not affect the construction thereof.
17. Force Majeure
Neither party shall be held responsible for any delay or failure in performance of any part of
this Agreement to the extent such delay or failure is caused by fire, flood, explosions, war,
acts of terrorism, strike, embargo, government requirement, civil or military authority, act of
God, inability to secure material or transportation facilities, act of omission of carriers or other
causes beyond the affected Party's control.
18. No -waiver
No waiver of the terms and conditions of this Agreement, or the failure of either party strictly
to enforce any such term or condition on one or more occasions shall be construed as a
waiver of the same or any other term or condition of this Agreement on any occasion.
19. Applicable Law
The construction and interpretation of, and the rights and obligations of the parties, pursuant
to this Agreement, shall be governed by the laws of the State of Colorado.
20. Arbitration
If a dispute arises with respect to this Agreement, either party may submit the dispute to
mediation by the American Arbitration Association (AAA) or another similar body. If not thus
resolved, it shall be referred to a sole arbitrator selected by the parties or to AAA arbitration.
The arbitration shall be governed by the United States Arbitration Act and judgment on the
award may be entered by any court having jurisdiction. The arbitrator shall not limit, expand
or modify the terms of the Agreement nor award damages in excess of the limits specified
herein. Each Party shall bear its own expenses and an equal share of all costs and fees of
the mediation and/or arbitration. All participants shall hold the content and result of mediation
and/or arbitration in confidence.
21. Time of the Essence
The Parties agree and acknowledge that time is of the essence of this Agreement.
22. Counterparts
This Agreement may be executed in multiple counterparts, each of which shall constitute an
original, but all of which taken together shall constitute one and the same document.
23. Prohibition Against Employing Illegal Aliens.
Pursuant to Section 8-17.5-101, C.R.S., et. seq., Contractor represents and agrees that:
1. As of the date of this Agreement:
Wisdom Net, incorporated Contract Number: 12112006
A. Contractor does not knowingly employ or contract with an illegal alien; and
B. Contractor has participated or attempted to participate in the basic pilot employment
verification program created in Public Law 208, 104th Congress, as amended, and expanded
in Public Law 156, 108th Congress, as amended, administered by the United States
Department of Homeland Security (the "Basic Pilot Program") in order to verify that
Contractor does not employ any illegal aliens.
2. Contractor shall not knowingly employ or contract with an illegal alien to perform works
under this Agreement or enter into a contract with a subcontractor that fails to certify to
Contractor that the subcontractor shall not knowingly employ or contract with an illegal alien
to perform work under this Agreement.
3. If Contractor has not been accepted into the Basic Pilot Program prior to entering into this
Contract, Contractor shall apply to participate in the Basic Pilot Program and shall verify in
writing such application within seven (7) days of the date of this Agreement. Contractor shall
continue to apply to participate in the Basic Pilot Program and shall in writing verify same
every three (3) calendar months thereafter, until Contractor is accepted or the public contract
for services has been completed, whichever is earlier. The requirements of this section shall
not be required or effective if the Basic Pilot Program is discontinued.
4. Contractor is prohibited from using Basic Pilot Program procedures to undertake pre-
employment screening of job applicants while this Agreement is being performed.
5. If Contractor obtains actual knowledge that a subcontractor performing work under this
Agreement knowingly employs or contracts with an illegal alien, Contractor shall:
A. Notify such subcontractor and the City within three days that Contractor has actual
knowledge that the subcontractor is employing or contracting with an illegal alien; and
B. Terminate the subcontract with the subcontractor if within three days of receiving the
notice required pursuant to this section the subcontractor does not cease employing or
contracting with the illegal alien; except that Contractor shall not terminate the contract with
the subcontractor if during such three days the subcontractor provides information to
establish that the subcontractor has not knowingly employed or contracted with an illegal
alien.
6. Contractor shall comply with any reasonable request by the Colorado Department of Labor
and Employment (the "Department") made in the course of an investigation that the
Department undertakes or is undertaking pursuant to the authority established in Subsection
8-17.5-102 (5), C.R.S.
7. If Contractor violates any provision of this Agreement pertaining to the duties imposed by
Subsection 8-17.5-102, C.R.S. the City may terminate this Agreement. If this Agreement is so
terminated, Contractor shall be liable for actual and consequential damages to the City
arising out of Contractor's violation of Subsection 8-17.5-102, C.R.S.
8. The City will notify the Office of the Secretary of State if Contractor violates this provision
of this Agreement and the City terminates the Agreement for such breach.
24. Entire Agreement / Amendment
This Agreement, including its Appendices, contains the entire integrated agreement between
the parties with respect to the subject matter hereof, and supersedes all prior negotiations,
representations or agreements, whether written or oral, with respect thereto. Except as
otherwise provided herein, only a written instrument signed by an authorized representative
of each Party may amend this Agreement. In the event of a conflict between the terms of the
Appendices and the terms of this Agreement or an Addendum, the terms of this Agreement
and such Addendum control.
WisdomNet, Incorporated Contract Number: 12112006
In order to bind the parties to this Agreement, their duly authorized representatives have signed
their names below on the dates indicated:
WisdomNet Incorporated
Signapdrg
1�Z�1� L
Date PT_
Gregg A. Wilkerson
President & COO
THE CITY OF FORT COLLINS, COLORADO
By:
Va s B. O'Neill II, CPPO, FNIGP
ctor of Purchasing & Risk Management
DATE
WisdomNet, Incorporated Contract Number: 12142006
APPENDIX I
Arrangement Letter
December 14, 2006
Janet Miller
Director of HR
215 North Mason Street
Fort Collins, CO 80522-0580
Dear Janet:
This Arrangement Letter outlines the services to be provided by WisdomNet, Incorporated
("WisdomNet") to THE CITY OF FORT COLLINS, COLORADO, ("City") in the
implementation of the WisdomNet Integrated Talent Management System ("I-TMS"). This
arrangement is subject to the terms and conditions of the applicable Software Services Agreement
between WisdomNet and City and is considered an exhibit there under. If there is any conflict
between this Arrangement Letter and the Software Services Agreement, the terms of the Software
Services Agreement shall prevail.
1.0 Services Provided
WisdomNet will provide City with access to a dedicated instance of the WisdomNet I-TMS that
has been configured within the default parameters to meet the needs of the organization. The
modules to be implemented will be:
• Performance
• Succession Planning
• Career
• Workforce
• Organization
• Learning
• Recruiting
• Administration
The I-TMS will be hosted on WisdomNet's servers and will be accessible to all in -scope City
employees via an Internet Browser (Microsoft Internet Explorer version 5.0 or later). WisdomNet
will also provide maintenance and support services related to bugs or application problems during
business hours, as well as pager access for emergency application problems, as set forth in the
Maintenance Services Agreement. Questions related to the actual use of the application in the
City environment will be directed to City super users. WisdomNet will also partner with City to
integrate the data feed from JD Edwards enabling automatic updating of employee job
information.
2.0 Implementation Activities
The key activities conducted during implementation will be:
WisdomNet, Incorporated Contract Number: 12142006
• Confirmation of performance management process, including career development, and
configuration options
• Confirmation of learning processes, and configuration of options.
Confirmation of recruiting processes, and configuration of options.
• Configuration of City -specific instance of the I-TMS.
• Integration of data feeds from City's HRIS ERP, JD Edwards.
• Development of an appropriate communications strategy.
• Testing of the application (both within WisdomNet and on City computers).
• Training of Super Users - We will conduct a training class for up to ten (10) City super
users on the configuration and administrative use of the application, as well as provide
training materials so that City can conduct internal training as required. WisdomNet
training shall take place in a maximum of two (2) group sessions.
• Upon implementation of I-TMS into production, WisdomNet will create a replica
environment for QA purposes (non -production), note this environment will not be
updated via the nightly feed.
3.0 Implementation Timeline
We anticipate that we can have the City instance of the I-TMS configured and ready for
deployment within 6 to 8 weeks after contract signing. Understanding that City wishes to have
the I-TMS deployed by March 15, 2007, we would require a start of implementation date of no
later than January 15, 2007.
This implementation timeline is highly dependent on the assumptions outlined below, and would
be impacted by any change in these assumptions.
4.0 Cost
The implementation fee will be US $43,000, and would cover all of the activities outlined in the
Implementation Activities section above. The ongoing cost for the application would be US
$4.00 per employee per month for the first 1,000 users and $2.00 per employee per month for the
users above 1,000. For example, the monthly cost for 2,000 users would be $6,000 ($4,000 +
$2,000). These fees will be billed on a monthly basis in advance, based on the number of
employees at the start of the quarter, and in accordance with the terms and provisions of the
applicable Software Services Agreement, and include Maintenance Services as outlined in
Appendix II of the Agreement.
At this point it has been determined that there are no required customizations to I-TMS in order to
meet the City's requirements.
WisdomNet, Incorporated Contract Number: 12142006
On the Effective Date of the applicable Software Services Agreement, we will invoice City for
the implementation fee and one-half of the Customization Fees which shall be due as outlined in
the Software Services Agreement. This initial invoice will be in the amount of US $21,500. On
the Launch Date, WisdomNet will invoice City for Monthly User Fees covering the period from
the date of launch through March 31, 2007. Invoicing for Monthly User Fees will then be done
on a monthly basis in advance of the provision of Services, with the invoices to be issued on the
first of the month.
5.0 Expenses
City shall be responsible for reasonable travel, material, and out-of-pocket expenses incurred by
WisdomNet in conjunction with the Agreement. WisdomNet will seek prior authorization before
incurring expenses in excess of US $100.00. At this time, WisdomNet estimates that no expenses
in excess of travel -related costs shall be required.
6.0 Assumptions
Certain assumptions were made in the preparation of this arrangement letter. Should any of these
assumptions be invalid or change, arrangement letter terms may need to be modified. The
assumptions used are:
• Current scope of the application is roughly equivalent to 2,000 FTE's.
• City will provide the resources to enter their proprietary data into the system, including
but not limited to corporate skills, corporate competencies, position descriptions, and
information regarding performance and review periods and processes.
• WisdomNet consultants will have access to key decision makers from within City for the
purpose of making configuration decisions, and that these decisions will be made without
significant delay.
• City shall select appropriate individuals within its organization to serve as "super users".
These individuals will be responsible for answering functional questions about the
application within City and performing various configuration and maintenance tasks once
the I-TMS has been deployed.
• All users of the I-TMS will have access to an Internet connection of at least 56 kbps, as
well as Microsoft Internet Explorer browser (version 5.0 or later).
• Work will be performed onsite at City's facilities and at WisdomNet's headquarters, as
appropriate. When onsite, City will provide WisdoniNet's consultants with access to a
desk, phone, copier, printer, and Internet connection as required.
If this Arrangement Letter is consistent with your understanding and acceptable to City, please so
indicate by counter -signing below.
Sincerely,
WisdomNet, Incorporated
by c
Gre A. Wilkerson, President & COO
3
WisdomNet, Incorporated Contract Number: 12142006
City Clerk
AS
Attorney
Acknowledged and Accepted:
THE CITY OF FORT COLLINS, COLORADO
By: r V ✓--ug-
J es B. O Neill II, CPPO, FNIGP
irector of Purchasing & Risk Management
DATE: / f 2.3 1 0-?
WisdomNet, Incorporated Contract Number: 12112006
APPENDIX II
Maintenance Services Agreement
1.0 Certain Definitions
1.1. "Application" means the WisdomNet Integrated Talent Management System (I-TMS) as
defined in the applicable Software Services Agreement.
1.2. "Support Request" means a request by an Authorized User for assistance in resolving
a problem relating to the Application.
1.3. "Requester" means the Authorized User who submits a Support Request.
1.4. "POC" means the Client's designated point of contact, as further defined below.
1.5. "Custom Programming Services" means, but is not limited to, development of custom
computer programs, and installation, training and maintenance with respect to
Modifications made to the Application. Any alterations or Modifications to the existing
Application at Client's request shall be considered Custom Programming Services.
1.6. "Client Customizations" means existing Modifications to the Application completed
under separate agreement between WisdomNet and Client for which Client has paid, or
has agreed to pay, customization fees for such Modifications. Client Customizations are
supported to the same degree as original Application functionality.
2.0 Application Support
2.1. Overview. WisdomNet is committed to providing a trouble -free system environment for
our clients and is dedicated to providing superior levels of service and support. This
Maintenance Services Agreement identifies what our customers can expect from
WisdomNet Support Services. It specifies the services and commitments of WisdomNet
and the expectations and obligations of the Client.
2.2. Support Request Methods. Should problems arise with the Application, WisdomNet
offers several methods for submitting Support Requests as outlined below. Support
Request can be submitted 24 hours a day, 7 days a week.
2.2.1. Automatic Notification of System Errors. WisdomNet support staff members
are automatically notified by the Application whenever a system error occurs. This
allows support staff to begin investigation of any system errors immediately,
without any intervention from the user who has experienced the error. Users who
experience an error during use of the Application should make note of the error,
including details on the attempted action and the text of any specific system -
generated error message. Users should then submit a Support Request using one
of the methods below, providing information in as much detail as possible to help
ensure prompt resolution of the problem.
2.2.2. Online Support System. WisdomNet shall setup and maintain a dedicated online
support system for each Client for the purposes of submitting Support Requests
and tracking the status thereof. Client can access the online support system at
http:/lsupport.i-tms.com/clientnameorabbreviation, or by clicking on the "Support"
WisdomNet, Incorporated Contract Number: 03032004
link from within the Application. The online support system is the preferred method
submitting Support Requests. The online support system allows WisdomNet's
support staff to provide the maximum level of assistance since all information
regarding a support issue is cataloged and accessible by all support team
members, including any diagnostic information that has already been gathered
and/ or information on all troubleshooting efforts that have already been completed.
2.2.3. Email. Client may also submit Support Requests to a dedicated email address
(support@I-tms.com). Support Requests submitted via email must include, at a
minimum, the required information as outlined in Section 3.3 of this Maintenance
Services Agreement.
2.2.4. Telephone / Voicemail. During standard business hours as defined herein, Client
may request support by calling the I-TMS Support Line at (303) 316-0381. If no
support staff member is available to answer the call, Requester may leave a
voicemail message which shall be returned promptly. Voicemail messages must
contain, at a minimum, the required information as outlined in Section 3.3 of this
Maintenance Services Agreement. Support Requests submitted via phone during
non -business hours will receive a response as soon as reasonably practicable on
the next business day. Critical Support Requests should not be submitted by
phone outside of standard business hours.
3.0 Service & Support
3.1. Standard Business Hours. Standard Business Hours are 7:00am — 6:00pm Mountain
Time, excluding all public holidays. Subject to the payment of appropriate additional
fees, Maintenance Services may, at WisdomNet's option, be provided for hours not within
the Standard Business Hours as outlined above.
3.2. Client Point of Contact. Client is responsible for the designation of an internal Point of
Contact ("POC") who will be charged with handling basic user Support Request, such as
problems with user access, permissions at the module and sub -module level, problems
with usernames and passwords, and administrative requests (such as moving an
employee from one department to another). The internal POC will have access to an
administrative interface from within the application itself, as well as access to the online
support system. Problems that cannot be resolved by the POC may be forwarded to
WisdomNet's support staff using one of the Support Request methods outlined above.
Support Requests received by WisdomNet's support staff which are administrative or
training -oriented will be forwarded to Client's designated POC for resolution.
3.3. Responsibilities of Requester. Whenever possible, Requester should contact
WisdomNet support staff through the online support system while in front of the
Application. Requesters are required to provide the following information:
• Requester's Full Name
• Requester's direct email address or telephone number and extension
• A detailed description of the attempted action
• A detailed description of the problem
• Any system -generated error message, if applicable
Requester's should also provide the following information whenever possible:
0 Requester's preferred contact method (e.g.: email, phone)
WisdomNet, Incor orated Contract Number: 12112006
The proprietary business software programs, Supporting Materials, applications and
object code owned and developed by WisdomNet that function as an integrated software
solution for human resource business applications. The I-TMS"m Talent Management
System includes those programs and applications, relating to human resource business
processes, owned or developed by WisdomNet and/ or those software programs owned,
developed and designed by certain third parties who have licensed certain rights to
WisdomNet.
1.7. "Software"
Defined as the software component of the Software Product.
I.S. "Software Services"
Defined as the setup, configuration, and hosting of an instance of the Software
specifically for the purposes of ongoing use by Client, the creation of any Extensions and/
or Modifications to the Software performed by WisdomNet or a third party designated by
WisdomNet, and any associated training delivery.
1.9. "Supporting Materials"
WisdomNet designed and developed user manuals and other related literature pertaining
to the Software Products.
1.10. "Implementation Fee"
Those fees related to the implementation, setup, and configuration, of a Client -specific
instance of the Software.
1.11. "Monthly User Fees"
Those recurring fees that are based on the number of Authorized Users of the Software
Services.
1.12. "Maintenance Services"
The services provided under this Agreement as detailed in Section 5 of this Agreement.
1.13. "Maintenance Fees"
Those fees related to any additional maintenance and support services, in excess of the
standard maintenance and support services.
1.14. "Enhancements"
Any new Software releases, improvements, modifications, upgrades, updates, fixes and
additions to the Software that WisdomNet markets or makes available to its customers
from time -to -time to correct deficiencies and/ or to improve or extend the capabilities of
the Software.
1.15. "Patch"
A permanent or temporary software fix designed to correct or eliminate a software
program deficiency. A Patch may be designated as "Critical' or "Non -critical' at
WisdomNefs reasonable discretion.
1.16. "Release"
Each new issuance of the Software, excluding third party software, identified by the
numeral to the left of the decimal point (e.g., 3.0).
1.17. "Version"
Each issuance of each Release of the Software, excluding third party software, identified
by the numeral to the right of the decimal point (e.g., 3.1).
1.18. "Modification"
A change to the Software, which changes the source code.
1.19. "Extension"
An addition to the Software, which does not require a Modification.
1.20. "Client Extension"
WisdomNet, Incotporated Contract Number: 03032004
• The location the Requester is accessing the Application from (e.g.: from office,
remotely through corporate VPN, remotely through the Internet)
• The operating system of the Requester's computer (e.g.: Windows XP, Widows
2000, etc.)
• The Requester's Internet browser (e.g.: Internet Explorer)
• The browser version (e.g.: 5.0, 6.0, etc.)
• The Severity Level of the problem, in accordance with the Service Level definitions
as outlined in Section 3.4.
3.4. Severity Levels and Response Times. WisdomNet shall respond to Support Requests
based upon the Severity Level of the problem. For all Support Requests received
through the online support system, WisdomNet will respond according to the Severity
Level as initially defined by Requester, according to the schedule below. Support
Requests whose Severity Level is inappropriately reported will be resolved according to
the appropriate Severity Level.
Severity
Criteria
Response
Resolution
Level
Time
Time
Critical
Impacts a primary function of
2 hours
WisdomNet support
the production environment
staff will work
and affects more than ten
constantly until the
system users.
issue is resolved.
High
Impacts a primary function of
4 hours
3 days
the production environment
and affects fewer than ten
system users where no
suitable workaround is
available; or, impacts a non -
primary function of the
production environment
affecting more than ten
system users.
Medium
Impacts a non -primary
1 day
30 days
function of the production
environment, and affects less
than tens stem users.
Low
Causes little or no impact on
1 week
Next scheduled
the production environment.
maintenance
release.
3.5. Exclusions. The following are examples of services that are not covered under the
scope of this Maintenance Services Agreement, and is not intended to be exhaustive:
• Custom Programming Services
• On -site support
• Corrections of any failures relating to Client's Modifications or Extensions that were
not directed, performed, authorized, participated in, or consented by WisdomNet
• Support for user's computer operating system software or configuration, or any
installed software other than as outlined in Section 7 of this Maintenance Services
Agreement
• Connectivity problems resulting from failure of Client's Internet Service Provider or
corporate LAN J WAN.
WisdomNet, Incorporated Contract Number: 03032004
4.0 Security
4.1. Privacy. WisdomNet will never use Client data or make such data available to any third
party. WisdomNet ensures the privacy of Client data by utilizing industry best -practices
for security in password protection, data encryption and firewall configuration and
maintenance. WisdomNet also helps ensure the safety of Client data by making regular
system backups as outlined in Section 5 of this Maintenance Services Agreement.
Access to Client data is restricted to support staff members only, and only to the extent
required to diagnose and resolve a Support Request.
4.2. Secure Transmission of Data. WisdomNet uses Secure Socket Layer and Digital
Certificate technology to provide secure transmission of data sent to and from the
Application. At a minimum, Application log on screens shall be accessed over a secure
connection. Client also has the option of utilizing a continuous secure connection to
access all areas of the Application at no additional cost. Since encryption and decryption
of data packets is a mathematically intensive process, system response times will be
slightly slower over a full-time secure connection.
5.0 System Backups
5.1. Backup Schedule. WisdomNet performs incremental backups of Client data on a
nightly basis and full backups of Client data on a weekly basis. Data backups are rotated
to an offsite facility for disaster recovery purposes.
5.2. Restoration Services. In the event of hardware failure or other data loss beyond the
reasonable control of Client, WisdomNet assumes all responsibility for restoration of the
most recent data backup. Should Client request partial or complete restoration of data
lost due to actions of its Authorized Users, WisdomNet will invoice Client for restoration
services at the then prevailing hourly rates for such services.
5.3. Enterprise Deployments. Client's who choose to deploy the Application within their
enterprise environment shall be responsible for backup and restoration services.
6.0 Software Enhancements
6.1. Patches. Patches are Modifications to the Application, which correct a deficiency or
generally enhance the performance of the Application. Client shall receive all Patches
immediately and automatically upon the completion of development and testing of said
Patch. Patches may be deemed "Critical" or "Non -critical" at WisdomNet's sole
discretion.
6.2. Versions. Versions are updates to the Application, which add a small number of
features and are inclusive of all previous Patches. WisdomNet shall make available to
Client all Version updates upon their general release. Version updates are mandatory,
however, WisdomNet support staff will be responsible for notifying Client of any planned
Version updates, and shall provide a description of any added features available in the
new Version and a timeline for the update. Since many of the features of the Application
can be turned on or off from within the Application itself, Client will be given the
opportunity to decide whether or not the added features will be activated when released.
6.3. Releases. Releases are updates to the Application, which add a large number of
features, involve fundamental changes in the system architecture, or greatly enhance the
performance of the Application. Release upgrades are optional and shall be made
WisdomNet, Incorporated Contract Number: 03032004
available to Client by WisdomNet upon their general release. WisdomNet support staff
will work with Client to determine whether or not a new Release shall be implemented.
Should Client choose not to implement a new Release, WisdomNet will continue to
support the latest Version of the preceding Release.
6.4. Obligation of Further Development. Except as provided in this Maintenance Services
Agreement, WisdomNet is under no obligation to develop any Releases, or Versions for
the Application or incorporate any Modifications or Extensions into a Release or Version.
7.0 Supported Client Software
WisdomNet supports Microsoft Internet Explorer, Version 5.0 or higher for use in accessing the
application. Problems with the Application that are a result of the use of a non -supported Internet
browser are not covered under the scope of this Maintenance Services Agreement.
8.0 Fees
Maintenance Services as outlined herein are provided as part of the Monthly User Fees, as long
as the applicable Software Services Agreement remains in effect.
9.0 Warranty
WisdomNet represents and warrants that the Maintenance Services will be performed:
(1) In a diligent, professional and workmanlike manner in accordance with applicable industry
standards; (2) In accordance with this Maintenance Services Agreement; and (3) By experienced
and qualified personnel.
10.0 Additional Services
WisdomNet and Client may, from time to time, enter into a separate written agreement for certain
on -site technical support services and other Custom Programming services which shall be in
addition to WisdomNet's obligations under this Maintenance Services Agreement and shall be
undertaken by WisdomNet upon terms and conditions mutually agreeable to the Parties at the
time such work is carried out.
In order to bind the parties to this Agreement, their duly authorized representatives have signed
their names below on the dates indicated:
WisdomNet, Incorporated THE Cl OF FORT COLLINS, COLO�O,
By.
��--- J B. O'Neill II, CPPO, FNIGP
Signature r for of Purchasing &Risk Management
_T_Z�� O
DATE:
Date
Gregg A. Wilkerson
President & COO
WisdomNet, Incorporated Contract Number: 12112006
APPENDIX IV
Non -disclosure Agreement
This Mutual Non -Disclosure Agreement is made and entered into as of this 12 day of December,
2006 ("Effective Date") between WisdomNet, Inc., a Colorado corporation with a place of
business at 1600 Stout Street, Suite 1800, Denver, Colorado,80202 and THE CITY OF FORT
COLLINS, COLORADO, a Municipal Corporation, with a place of business at 215 North Mason
Street, Fort Collins, CO 80522-0580.
1.0 Purpose
The parties wish to explore a business opportunity of mutual interest and in connection with this
opportunity, each party may disclose to the other certain confidential technical and business
information which the disclosing party desires the receiving party to treat as confidential.
2.0 Confidential Information
"Confidential Information" means any information disclosed by either party to the other party,
either directly or indirectly, in writing, orally or by inspection of tangible objects (including
without limitation documents, prototypes, samples, plant and equipment), which is designated as
"Confidential," "Proprietary," or some similar designation. Information communicated orally
shall be considered Confidential Information if such information is designated at the time of
disclosure as confidential. Confidential Information may also include information disclosed to a
party by third parties. Confidential Information shall not, however, include any information
which:
1) Was publicly known and made generally available in the public domain prior to
the time of disclosure by the disclosing party;
2) Becomes publicly known and made generally available after disclosure by the
disclosing party to the receiving party through no action or inaction of the
receiving party;
3) Is already in the possession of the receiving party at the time of disclosure by the
disclosing party as shown by the receiving party's files and records immediately
prior to the time of disclosure;
4) Is obtained by the receiving party from a third party without a breach of such
third party's obligations of confidentiality;
5) Is independently developed by the receiving party without use of or reference to
the disclosing party's Confidential Information, as shown by documents and other
competent evidence in the receiving party's possession; or
6) Is required by law to be disclosed by the receiving party, provided that the
receiving party gives the disclosing party prompt written notice of such
requirement prior to such disclosure and assistance in obtaining an order
protecting the information from public.
WisdomNet, Incorporated Contract Number: 03032004
3.0 Non-use and Non -disclosure
Each party agrees not to use any Confidential Information of the other party for any purpose
except to evaluate and engage in discussions concerning a potential business relationship between
the parties. Each party agrees not to disclose any Confidential Information of the other party to
third parties or to such party's employees, except to those employees or independent contractors
of the receiving party who are required to have the information in order to evaluate or engage in
discussions concerning the contemplated business relationship. Neither party shall reverse
engineer, disassemble or decompile any prototypes, software or other tangible objects which
embody the other party's Confidential Information and which are provided to the receiving party
hereunder.
4.0 Maintenance of Confidentiality
Each party agrees that it shall take reasonable measures to protect the secrecy of and avoid
disclosure and unauthorized use of the Confidential Information of the other party. Without
limiting the foregoing, each party shall take at least those measures that it takes to protect its own
most highly confidential information and shall ensure that its employees or independent
contractors who have access to Confidential Information of the other party have signed a non-use
and non -disclosure agreement in content similar to the provisions hereof, prior to any disclosure
of Confidential Information to such employees. Neither party shall make any copies of the
Confidential Information of the other party unless the same are previously approved in writing by
the other party. Each party shall reproduce the other party's proprietary rights notices on any such
approved copies, in the same manner in which such notices were set forth in or on the original.
5.0No Obligation
Nothing herein shall obligate either party to proceed with any transaction between them, and each
party reserves the right, in its sole discretion, to terminate the discussions contemplated by this
Agreement concerning the business opportunity.
6.0 No Warranty
ALL CONFIDENTIAL INFORMATION IS PROVIDED "AS IS." EACH PARTY MAKES NO
WARRANTIES, EXPRESS, IMPLIED OR OTHERWISE, REGARDING ITS ACCURACY,
COMPLETENESS OR PERFORMANCE.
7.0 Return of Materials
All documents and other tangible objects containing or representing Confidential Information
which have been disclosed by either party to the other party, and all copies thereof which are in
the possession of the other party, shall be and remain the property of the disclosing party and
shall be promptly returned to the disclosing party or destroyed upon the disclosing party's written
request.
8.0 No License
Nothing in this Agreement is intended to grant any rights to either party under any patent, mask
work right or copyright of the other party, nor shall this Agreement grant any party any rights in
or to the Confidential Information of the other party except as expressly set forth herein.
9.0 Term
The obligations of each receiving party hereunder shall survive for a period of three (3) years
after disclosure or until such time as all Confidential Information of the other party disclosed
WisdomNet, Incorporated Contract Number: 03032004
hereunder becomes publicly known and made generally available through no action or inaction of
the receiving party whichever is earlier.
10.0 Remedies
Each party agrees that any violation or threatened violation of this Agreement will cause
irreparable injury to the other party, entitling the other party to seek injunctive relief in addition to
all legal remedies.
11.0 Miscellaneous
This Agreement shall bind and inure to the benefit of the parties hereto and their successors and
assigns. This Agreement shall be governed by the laws of the State of Colorado, without
reference to conflict of law principles. This document contains the entire agreement between the
parties with respect to the subject matter hereof, and neither party shall have any obligation,
express or implied by law, with respect to trade secret or proprietary information of the other
party except as set forth herein. Any failure to enforce any provision of this Agreement shall not
constitute a waiver thereof or of any other provision. This Agreement may not be amended, nor
any obligation waived, except by a writing signed by both parties hereto.
12.0 Requests for information under the Colorado Public Records Act
In the event that the City receives a demand for disclosure pursuant to applicable law (including,
but not limited to, the Colorado Public Records Act, C.R.S. 24-72-201, et seq., as now or
hereafter amended), or any lawful order, subpoena, or other process requiring disclosure of
Confidential Information, the City shall immediately notify WisdomNet in writing in order to
afford WisdomNet a reasonable opportunity to initiate legal action to enjoin, restrict, or otherwise
oppose the disclosure in a court of competent jurisdiction. Such action shall be at the expense of
WisdomNet, but the City shall reasonably cooperate with WisdomNet in seeking protection of
the Confidential Information.
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed by the
signature of their duly authorized representatives on the date(s) indicated.
Wisdom. t, Inco
c
Signature
Date /2� %—
Gregg A. Wilkerson
President & COO
THE CITY OF FORT COLLINS, COLORADO
By: _C)
J e . ONeill II, CPPO, FNIGP
ctor of Purchasing & Risk Management
DATE: I I, (0-2
WisdomNet, Incorporated Contract Number: 03032004
F j.c
City Clerk ` V;
AL
APPROVZDF As To-va 1. �� I
WisdomNet, Inc. Contract Number:12112006
APPENDIX V
Point of Contact Designation
Please fill out one copy of this form to designate the primary and back-up Point of Contact for
Implementation and Maintenance Services.
WisdomNet, Incor orated Contract Number: 121 220 6]
Any Extension developed by Client without any direction, assistance or participation by
WisdomNet.
1.21. "Client Modification"
Any Modification developed by Client without any direction, assistance or participation by
WisdomNet.
1.22. "Escrow Agreement'
The terms and conditions contained in the third party software escrow agreement
described in Section 2.10 of this Agreement.
1.23. "Intellectual Property"
Any Marks, Proprietary Information (hereinafter defined), patents, copyrights, trade
secrets or proprietary inventions, designs and information, whether patented or not,
heretofore or hereafter acquired or developed by WisdomNet.
1.24. "Marks"
Any copyrights, trademark, trade name, service marks, design or design mark, whether
or not registered in the USA, heretofore or hereafter adopted or used by either Party or its
Affiliates, or otherwise associated with the business, products or services of either Party
or its Affiliates.
1.25. "Proprietary Information'
Any information described in Section 8.1.
2. Services Provided
2.1. Software Services
WisdomNet will setup, configure, and host an instance of the Software for access by
Client's Authorized Users as outlined in the attached Arrangement Letter (Appendix 1).
2.2. Scope of Use
Client and its Authorized Users may Use the Software Products only for their internal
business purposes.
2.3. Use Restrictions
Except as provided herein, neither Client nor its Authorized Users will Use the Software
Products in any manner that would enable any unlicensed person or entity to Use the
Software Services. Client and its Authorized Users hereby agree NOT to Use the
Software Services in any manner so as to provide services to any third party for
compensation. Except as provided by applicable law, Client and its Authorized Users are
not authorized to modify, adapt, translate, or to reverse compile or disassemble the
Software. The rights granted Client and its Authorized Users hereunder are restricted
exclusively to Client and its Authorized Users and such use rights of the Software
Services may not be assigned, sub -leased, sub -licensed, sold or otherwise transferred
except as provided in this Agreement.
2.4. Authorization of Users
Authorized Users shall be authorized to Use the Software Services provided that Client
accepts responsibility for the acts or omissions of such Authorized Users as if it were
Client's own acts or omissions.
2.5. Supporting Materials
Client and its Authorized Users may make, for internal use only and only in conjunction
with Use of the Software Services, a reasonable number of printed copies of the
Supporting Materials which shall be supplied to Client in file transfer, CD ROM, and/ or
hard copy form provided Client includes all WisdomNet copyright and all other proprietary
notices on the documentation on such copies it produces.
2.6. Title
WisdomNet, Incorporated Contract Number: 12112006
Other than the rights granted herein, this Agreement in no way grants Client any title or
rights of ownership in the Software or Software Services. All Software Services furnished
by WisdomNet, and all copies of Supporting Materials thereof made by Client, including
translations, compilations, and partial copies, and all Patches, revisions, and updates
thereto, including any and all Modifications and/or Extensions are and shall remain the
property of WisdomNet or WisdomNet's successors or permitted assigns, as applicable.
2.7. Proprietary Markings
Client and its Authorized Users agree not to remove or destroy any proprietary markings
or proprietary legends placed on or contained within the Software Products or any related
materials or documentation. Additionally, Client agrees to reproduce and include
WisdomNet's proprietary and copyright notices on any copies of the Supporting
Materials, or on any portion thereof, including reproduction of the copyright notice.
2.8. Modifications and Extensions
All Modifications or Extensions to the Software and/or Software Services must be
performed by WisdomNet or a third party designated by WisdomNet. Client is not
permitted to make Modifications or Extensions to the Software or Software Services
under the scope of this Agreement. Technical support requests, system downtime, or the
failure of any functional aspect of the Software Services caused by Extensions and/ or
Modifications not performed by WisdomNet or a third party designated by WisdomNet will
fall outside of the scope of the Maintenance Services Agreement and shall be billed to
Client at the then prevailing hourly rates for such support services.
2.9.Source Code
During the term of this Agreement, WisdomNet agrees to deposit into escrow with
Innovasafe, Incorporated ("Escrow Agent") current copies of the Software, all
documentation, and source code on computer magnetic media, and all necessary and
available information, commentary, explanations and documentation of the source code
that will enable Client to maintain, and/ or enhance the Software without the aid of
WisdomNet, including maintenance tools, description of the system/ program generation;
and descriptions and locations of programs not owned by WisdomNet but required for
use and/ or support ("Deposits"). In the event WisdomNet fails to make the necessary
Deposits within the time frames specified in the escrow agreement and such failure is not
cured within ninety (90) days, WisdomNet's failure shall be deemed a material default
under this Agreement.
2.10. Escrow Agreement
The Parties acknowledge that Wisdom Net and InnovaSafe have an agreement
governing the Escrow of the software source code.
3. Fees and Payments
3.1.Implementation Fee
The Implementation Fee, along with one-half (1/2) of the Customization Fees, as
specified in the Arrangement Letter, are due upon commencement of this Agreement,
and must be paid in full before any services will be rendered.
3.2. Monthly User Fees
WisdomNet will invoice Client for Monthly User Fees on the first day of each quarter of
the calendar year. Invoices will be delivered via U.S. Mail or other commercial delivery or
courier service, in advance of the provision of Software Services.
3.3. Maintenance Fees
WisdomNet shall provide standard maintenance and support services as described in
Appendix II for the duration of the term of this Agreement as defined in Section 9.1.
Should Client wish to engage WisdomNet for additional maintenance and support
services above the standard services, the terms of such additional services shall be
detailed in the attached Maintenance Services Agreement (Appendix II).
WisdomNet, Incorporated Contract Number: 12112006
3.4. Payment Terms
Any Client payments due hereunder shall be made in U.S. currency and are due as
stated in Appendix 1 and Appendix 2. Client shall pay the amount invoiced by
WisdomNet within fifteen (15) days of Client's receipt of such invoice without deduction of
any kind. Any amounts not paid within such fifteen (15) day period will be considered
past due.
3.5. Method of Payment
All payments by Client to WisdomNet pursuant to this Agreement shall be made by wire
transfer to the bank and account number specked below or by check made payable to
"WisdomNet" and delivered to the address as noted on the invoice:
Bank:
Routing Number:
Bank Address:
Customer Name:
Account Number:
3.6. Past Due Payments
JP Morgan Chase Bank
102001017
1125 17t" Street,
Denver, CO 80202
WisdomNet
119-298-0553
If any payment or any other sum due from Client under this Agreement should become
past due, WisdomNet may, without declaring Client to be in default, charge Client a late
payment charge of up to one and one-half percent (1.5%) per month on the past due
balance, provided, however, that If the interest charge exceeds the maximum amount
permitted by law, such late payment charge shall be reduced to such maximum amount.
In the event collection activities are undertaken by WisdomNet as a result of Client's
failure to pay any amount due hereunder, Client shall pay WisdomNefs costs of
collection including but not limited to, reasonable attorney fees. In the even that any
payment hereunder becomes more than sixty (60) days past due, WisdomNet reserves
the sole right to cease provision of the Software Services until said payments are
received.
3.7. Taxes
All fees charged by WisdomNet hereunder do not include taxes. If WisdomNet is required
to pay any sales, use, property, value-added, or other federal, state, or local taxes based
on the Software or any services provided under this Agreement, then such taxes shall be
billed to and paid by Client. This paragraph shall not apply to taxes based on
WisdomNet's net or gross income or its corporate franchise taxes. Any such taxes for
which Client is responsible shall be listed as a separate item on invoices to Client.
3.8. Expenses
Client, shall reimburse WisdomNet for all reasonable travel, material, and out-of-pocket
expenses incurred in conjunction with this Agreement. The amount of any estimated or
agreed expenses, or per -diem charges will be specified in Appendix 1 of this Agreement.
WisdomNet will seek prior authorization from Client before incurring any expenses in
excess of amounts specified in Appendix 1.
4. Installation; Point of Contact
4.1. Installation
WisdomNet shall have responsibility for the installation of the Software Products for use
by Client pursuant to the terms and conditions of this Agreement. If Client desires to
have the I-TMST°° Talent Management System integrated with an existing in-house
system, Client agrees to make available such internal personnel as necessary to enable
a successful integration.
4.2. Points of Contact
WisdomNet, Incorporated Contract Number: 12112006
Each Party shall, at its own cost, at all times during the term of this Agreement (a)
provide a reliable electronic mail address, phone and fax number to the other Party, and
(b) provide one primary and one back-up suitably trained employee as the point -of -
contact ("POC") to the other Party for diagnosis and resolution of all problems with the
Software Services. The initial POC's for each Party shall be designated in Appendix 5.
5. Maintenance Services
WisdomNet shall provide Client Maintenance Services as described in Appendix 2.
6. Warranties
6.1. Condition
REGARDLESS OF ANY COURSE OF DEALING, PROMOTIONAL LITERATURE OR
OTHER ACTIONS APPARENTLY CREATING A WARRANTY, WISDOMNET MAKES
NO WARRANTIES, EXPRESS OR IMPLIED, EXCEPT AS DETAILED IN THIS
AGREEMENT RESPECTING THE FUNCTIONAL CHARACTERISTICS OR
PERFORMANCE OF THE LICENSED MATERIALS.
6.2. Infringement
WisdomNet shall indemnify, defend and hold harmless Client and its Authorized Users,
their officers, directors and employees, from and against all claims, suits, liabilities,
expenses, attorneys' fees or damages (collectively "Claims") arising from or related to
any alleged or actual claim that the Software Services or Supporting Materials under this
Agreement, when used according to its intended purpose, infringe or violate any patent,
trademark, copyright or other intellectual property right of a third party; provided that
WisdomNet has the right to control such defense or settlement and Client and its
Authorized Users give WisdomNet reasonably prompt written notice of any such claim
after Client's and any Authorized User's notice thereof and provides reasonable
assistance in its defense where such assistance provided shall be at WisdomNet's sole
cost and expense. In the event of such a claim of infringement, WisdomNet, at its option,
may provide Client and its Authorized Users with substitute Software Services and/ or
Supporting Materials reasonably satisfactory to Client to replace the relevant Software
Services. WisdomNet shall not be liable under this Section 6.2 if the infringement arises
out of Client's Use of the Software Services or Supporting Materials more than ten (10)
business days after WisdomNet has notified Client in writing that WisdomNet believes in
good faith that Client's Use will result in such infringement. The foregoing states the
entire liability of WisdomNet with respect to infringement of the patents, copyrights,
trademarks or other intellectual property rights owned by third parties.
6.3. Authority
WisdomNet represents and warrants that: (a) WisdomNet has full power and authority to
execute, deliver and perform its obligations under this Agreement; (b) the execution,
delivery and performance of this Agreement by WisdomNet have been duly and validly
authorized by all necessary action on the part of WisdomNet; (c) the execution and
delivery of this Agreement by WisdomNet and the performance of the terms, covenants
and conditions contained herein will not violate the articles of incorporation or by-laws of
WisdomNet, or any order of a court or arbitrator, and will not conflict with and will not
constitute a material breach of, or default under, the provisions of any material contract
by which WisdomNet is bound. The warranties in this Section 6.3 shall survive the
expiration or termination of this Agreement.
6.4. No Implied or Expressed Warranties
THE FOREGOING STATEMENTS CONSTITUTE THE ONLY WARRANTIES GRANTED
BY WISDOMNET WITH RESPECT TO THE SOFTWARE PRODUCT AND SOFTWARE
SERVICES AND ARE EXPRESSLY IN LIEU OF ANY OTHER EXPRESS OR IMPLIED
WARRANTIES, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY OR
FITNESS FOR A PARTICULAR PURPOSE. WITHOUT LIMITING THE GENERALITY
WisdomNet, incorporated Contract Number: 12112006
OF THE FOREGOING, WISDOMNET DOES NOT WARRANT THAT THE SERVICES
OR SOFTWARE WILL BE UNINTERRUPTED, ERROR -FREE, OR SECURE.
6.5.Obligation for Further Development
WisdomNefs sole obligation to update the Software is provided in the Maintenance
Services Agreement described in Appendix II. Except as provided in the previous
sentence, the Parties understand and acknowledge that WisdomNet will work to
generally enhance and improve the Software but shall have no responsibility to develop
subsequent components or additional processes for the I-TMSTm Talent Management
System.
7. Indemnity; Limitations
7A.Consequential Damages
Except for those indemnification obligations provided in Section 6.2, any damages arising
from a claim for personal injury as set forth in Section 7.3 or in the event of a breach of a
Party's obligation under Section 8, neither Party shall be liable, under any circumstances,
to the other Party, or any other person for lost profits or special, incidental or
consequential damages associated with this Agreement. Client and its Affiliate(s)
acknowledges that no promises, representations, warranties, or undertakings have been
made or given by WisdomNet to Client or any of their agents in relation to the profitability
of or any other benefits to be obtained by the use of the Software Services. Client
acknowledges that it has relied upon its own knowledge, skill and judgment in deciding to
acquire the Software Services for its own use.
7.2.Limitation of Liability
Except as otherwise provided herein, WisdomNet entire monetary liability for any claim or
loss, damage or expense from any cause whatsoever arising out of or related to this
Agreement shall in no event exceed the monies actually paid to WisdomNet by Client
during the twelve (12) months immediately preceding said cause under this Agreement.
WisdomNet shall NOT be liable for and Client and its Affiliate(s) will indemnify
WisdomNet for any direct damages or loss which may arise from the unauthorized
distribution, sale, or Use of the Software or Software Services by Client or any Authorized
Users.
7.3. Indemnity
Client and its Affiliate(s) shall indemnify, defend and.hold harmless WisdomNet from any
claims by any of their customer's or any other third party relating to any damages, injury
or death caused by the negligence, recklessness, willful actions or omissions or other
faults of Client and its Affiliate(s). WisdomNet shall defend, indemnify and hold harmless
Client and its Authorized User(s), and their respective officers, directors and employees,
from and against any and all Claims respecting property, including loss of use thereof,
injuries to persons, including death, and from any other Claims on account of the acts or
omissions of WisdomNet, or any of its subcontractors, suppliers, officers, agents, or
employees, provided, however, WisdomNet's duties hereunder shall not arise to the
extent such Claims are caused by the negligence of Client or its Authorized Users.
7.4.Time Limit
No action or proceeding against WisdomNet may be commenced more than one (1) year
after the termination of this Agreement. This clause shall survive failure of an exclusive
remedy.
8. Proprietary Information
8.1. Non -disclosure of Proprietary Information
Each party acknowledges that it may obtain information of a confidential and proprietary
nature relating to the other party and that certain steps must be taken to ensure its
protection. The term "Proprietary Information" includes without limitation trade secrets,
know-how, inventions, techniques, processes, programs, schematics, theories of
WisdomNet, incorporated Contract Number: 12112006
operation, software source documents, data, Client lists, financial information and
business and sales and marketing plans and data but shall specifically exclude the
following:
1. Information which is previously rightfully known by the receiving Party without
restriction on disclosure;
2. Information which is or becomes, from no act or failure to act on the receiving
Party's part, generally known in the public domain;
3. Information which is disclosed to the receiving Party by a third party as a matter
of right and without restriction on disclosure; or
4. Information which receiving Party can demonstrate is independently developed
by the receiving party by its own research and development.
Each Party shall at all times, keep in confidence and trust all such Proprietary
Information, and shall not use such Proprietary Information other than in the course of its
duties under this Agreement, nor disclose any of such Proprietary Information without the
written consent of the disclosing Party. To the extent Proprietary Information is required
to be produced in compliance with applicable law or a court order, the Party producing
such Proprietary Information must give reasonable written notice of such law or order and
an opportunity for the other Party to preclude or limit such production. Notwithstanding
the foregoing, the Parties agree that the disclosure of any Proprietary Information shall be
controlled by the terms of the Non -Disclosure Agreement attached hereto as Appendix 4.
8.2.Intellectual Property
Except as specifically provided herein, the ownership and all right, title and interest in and
to the Intellectual Property are and shall remain vested solely in WisdomNet.
8.3. Decompllation; Passwords
Client and its Affiliate(s) agree (a) Not to attempt to decipher or decompile the Software
or develop or derive source code for the Software except as permitted by applicable law;
and (b) Not to develop passwords or other mechanisms that enable the Software for
equipment, users, or periods of time not covered by this Agreement.
8.4. Violation of Rights
Each Party shall report to the other Party reasonably promptly upon discovery (but
without a duty of investigation) (a) any violation or infringement related to this Agreement
by any person of any of such other Party's rights in the Software, Software Services,
Supporting Materials, Proprietary Information, Marks or other Intellectual Property or (b)
any legal action involving the Software, Software Services, Supporting Materials,
Proprietary Information, Marks or other Intellectual Property.
9. Term, Default, and Termination
9.1. Term
This Agreement shall become effective on the date the Agreement is signed by the later
signing Party and shall terminate one (1) year after the Launch Date as defined in the
attached Arrangement Letter, unless sooner terminated pursuant to the provisions of this
Agreement. This Agreement shall automatically renew on an annual basis, unless Client
provides written notice of cancellation thirty (30) days prior to the expiration of the then
current Agreement, or unless otherwise terminated in accordance with the provisions of
this Section.
9.2. Termination
Either Party may terminate this Agreement, with or without cause, prior to the termination
date specified in Subsection 9.1, upon thirty (30) days written notice to the other. This
Agreement may be terminated at any time upon mutual written agreement of the Parties.
9.3. Termination for Cause
WisdomNet, incorporated Contract Number: 12112006
Either Party may terminate this Agreement by written notice to the other Party if the other
Party:
1. Breaches a material obligation under this Agreement and such breach continues
uncorrected for a period of thirty (30) days after receipt of notice in writing thereof
to such other Party;
2. Becomes insolvent or is adjudged as bankrupt; makes an assignment for the
benefit of creditors; has a receiver appointed; files a petition of bankruptcy;
initiates reorganization proceedings; causes or permits to occur any similar event
under the laws of its domicile; or ceases to conduct its operations in the normal
course of business
3. Fails to comply with the confidentiality obligations under Section 8 of this
Agreement.
9A. Change of Control of Client
If Client and/ or its Affiliates(s) is acquired, merged into, or consolidated with another
corporation or organization or sells, transfers, or leases all or any substantial part of its
assets, to an entity, and such entity is a direct competitor of WisdomNet, WisdomNet
reserves the right to consider such a change of control as a material and incurable
breach of the Agreement and proceed to termination under Section 9.2. For the
purposes of this Agreement, a direct competitor of WisdomNet is any entity that markets,
sells, or develops a product substantially similar to any WisdomNet software, and which
is or could reasonably be marketed, sold, or used in direct competition with the Software.
9.5. Merger of Either Party
Notwithstanding the provisions of Section 9.4, in the event that either Party is acquired,
merged with, or consolidated with another company, or otherwise subject to a change in
control, all of each Partys and its Affiliate's rights under this Agreement will continue in
full force and effect.
9.6. Effects of Termination
Except as provided in this Section 9, upon termination of this Agreement as provided
herein, all rights granted to Client under this Agreement shall terminate immediately and
Client and its Affiliate(s) shall cease all activities hereunder. Upon the effective date of
such termination or expiration, and without limiting their respective responsibility of
performance up to said date, neither Party shall have any further or other obligation to the
other, except as follows:
1. Cessation. Client and its Authorized Users shall immediately cease using the
Software Services.
2. Payment of sums due. Client shall pay any and all sums then owing to
WisdomNet hereunder within ten (10) business days from the effective date of
termination.
3. Non-use of Intellectual Property. Client and its Affiliate(s), shall immediately
discontinue the use of the Intellectual Property or anything else that might make
it appear that Client is still using the Software Services. Thereafter, Client and its
Affiliate(s) shall not use, either directly or indirectly, any name, title, expression or
mark so nearly resembling any of the Marks as to be likely to lead to confusion or
uncertainty or to deceive the public.
4. No indemnity. Except as otherwise provided herein, neither Party shall be liable
to the other Party in the event of termination, expiration or failure to agree upon
an extension of the term of this Agreement, for compensation, reimbursement or
damages of any kind, including without limitation for the loss of prospective