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EXHIBIT 10.34
PILOTCENTER MASTER SERVICES AGREEMENT
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[CENTER 7/ INC.]
[C7 LOGO] PILOTCENTER MASTER SERVICES AGREEMENT
Enterprise Management Services
Confidential and Proprietary to Center 7 and MTI Tech.
Unpublished Work - Copyright Center 7
All Rights Reserved
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Date: April 1, 2001
Agreement No: 011303
Account Executive: Kelly Phillipps, Chris Skillings
This PilotCenter Master Services Agreement ("Agreement") is by and between the
following Parties:
Center 7: Center 7, Inc.
Address: 333 South 520 West
Lindon, Utah 04042
Telephone: (801) 443-3000
Fax: (801) 443-3030
Customer: MTI
Address: 4905 E. La Palma Avenue
Anaheim, CA 92807
Telephone: (714) 970-0300, (800) 999-9MTI
Fax: (714) 693-2202
who agree as follows:
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AGREEMENT
Center 7, Inc. ("Center 7") is engaged in the business of providing enterprise
management services to others. Typically, these enterprise management services
involve the management of a customers' assets (e.g., applications, databases,
servers, routers, IT devices, non-IT devices and/or other networkable assets of
a customer) located at a customer's site. Such management requires a
Cyberstack(TM) appliance which is located at the customer's site (or another
agreed upon site) and which runs Computer Associate's Unicenter TNG computer
programs. Customer has requested Center 7 to perform the services as described
in Statements of Work and in accordance with this Agreement. The Parties agree
to the following Terms and Conditions.
TERMS AND CONDITIONS
SECTION 1 -- SERVICES
1.1 SUMMARY OF ENTERPRISE MANAGEMENT SERVICES. Center 7 will provide
enterprise management services to Customer as described below and in the
applicable Statement of Work (see Section 1.3). These services are referred to
herein as the "Services." The Services will include monitoring and management of
certain "Managed Assets" of Customer. The "Managed Assets" of Customer are
identified in the applicable SOW. The Managed Assets will be located at the
Customer Site identified in the applicable SOW. If mutually agreed, some of the
Managed Assets may be located at locations other than the Customer Site. Center
7 will install a Cyberstack appliance at the Cyberstack Location identified in
the applicable SOW (which may be the Customer Site or an alternative location)
to monitor and manage the Managed Assets. The Cyberstack appliance will be
configured by Center 7 to include one or more servers, Unicenter TNG and such
other equipment and computer programs as are needed for the functions of the
Cyberstack appliance. Unicenter TNG agents running on processors associated with
Managed Assets will communicate with the Cyberstack appliance and Unicenter TNG.
For example, such agents will report enterprise management events to the
Cyberstack appliance. The Cyberstack appliance will be in communication (via the
Internet or VPN or other means) with a Center 7 Masterstack appliance at Center
7's Data Center. For example, the Cyberstack appliance will report enterprise
management events to the Masterstack appliance. The Masterstack will be in
communication with a Center 7 Policy Repository and will handle correlation,
policies and notifications, and will include other equipment, computer programs,
and/or databases for these Services. The Policy Repository will include policies
that determine responses to enterprise management events. Reports will be
available from the Masterstack appliance to Customer. Customer will access such
reports through a web browser. The applicable SOW will include further
description of the Services. If there is more than one Customer Site or
Cyberstack Location, then each such Customer Site and Cyberstack Location will
be identified in the applicable SOW. Center 7 may at any time replace or use
different hardware, computer programs, databases, policies, and means and may
change any of the foregoing locations, provided that the level of Services is
not materially reduced or adversely affected thereby.
1.2 OTHER SERVICES. Center 7 may provide other services to Customer, if
and as such other services are described in the SOW(s) (see Section 1.3). Such
other services shall also be governed by this Agreement as "Services."
1.3 STATEMENTS OF WORK. From time to time, the Parties may enter into
one or more Statements of Work ("SOW(s)"). To be binding on the parties, the
SOW(s) must be in writing and signed by both parties. Generally, each SOW will
follow the form attached to this Agreement as Exhibit 1 and will include the
following Appendices:
Appendix A: Statement of Services
Appendix B: Resources
Appendix C: Payment Schedule
Appendix D: Contacts and Notices
Appendix E: Other Terms and Conditions
If an Appendix is not applicable, it may be excluded from the SOW. Any mutually
acceptable other terms and conditions may be included by the parties in Appendix
E or elsewhere in the SOW. The parties may agree to include other appendices or
provisions in the SOW. Each SOW will be governed by the terms and conditions of
this Agreement. Each SOW together with the Terms and Conditions of this
Agreement applicable to the SOW shall be deemed a separate agreement.
1.4 SERVICES AND RESOURCES. "Services" shall mean the services to be
performed by Center 7 as described in the Statement of Services Appendix A of
the SOW(s) or elsewhere in the SOW. Center 7 shall perform the Services for
Customer and will use the Resources (see Section 1.5), as applicable, in
performing Services.
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1.5 RESOURCES. "Resources" shall mean the hardware, software, policies,
and other resources, if any, identified in the Resources Appendix which is
attached as Appendix B to the SOW(s). Unless expressly stated otherwise in
Appendix B, all Resources are owned by Center 7, not Customer. In the case of
Resources in the form of software licenses, ownership by Center 7 means that
Center 7 holds and controls the license granted by the software licensor. If
Appendix B indicates that certain Resources are to be provided by Customer, then
Customer shall provide such Resources to Center 7 for purposes of the Services.
Center 7 shall be responsible for maintenance of all Resources owned by Center
7. Unless otherwise stated in Appendix B, Customer shall be responsible for
maintenance of all Resources owned by Customer. Center 7's Resources are not
dedicated exclusively to the Services or Customer unless expressly indicated in
Appendix B. It is understood that the level of Services is based on the
assumptions and estimates stated in the Appendices. If actual loads, traffic,
demands or other circumstances are not within such assumptions and estimates,
then additional or changed Resources may be required and an amendment or change
order pursuant to Section 1.7 below will be entered into by the Parties.
1.6 RESPONSIBILITIES. If and to the extent that Appendix A or B or any
other appendix or provision of the SOW(s) attributes or assigns any
responsibility, task, deliverable or obligation to Customer or a third party,
then Customer or the third party shall be responsible for such responsibility,
task, deliverable or obligation, not Center 7. Center 7's obligations are
subject to the performance and delivery of such responsibility, task,
deliverable or obligation.
1.7 AMENDMENTS AND CHANGE ORDERS. If the Parties desire to amend the
SOW(s), they may do so, but only by a written amendment signed by both Parties.
An amendment may include additions or changes to Services, Resources, payments
and/or other provisions. If Customer desires that Services be changed, then
Customer will submit a request for such change in the form of a written change
order. If the change is acceptable to Center 7, then Center 7 will prepare an
amendment to the SOW. It is understood that Customer will be responsible for any
changes to the fees, charges and expenses resulting from the change order. The
amendment will address such changes to the fees, charges and expenses. If no
fees, charges or expenses are specified in the amendment, then Customer must pay
to Center 7 the then-current standard fees and charges charged by Center 7 and
reimburse Center 7 for expenses reasonably incurred.
1.8 COOPERATION. Each Party shall make promptly available to the other
such information, assistance and cooperation as such other Party may reasonably
request in performing its obligations under this Agreement.
1.9 BACK-UP RESPONSIBILITY. To the extent, if any, that Customer
provides any data or computer programs to Center 7, it is Customer's
responsibility to maintain adequate back-ups of such data and computer programs
in order to ensure continued security and retention.
1.10 CONTACT PERSONS AND NOTICES. See Appendix D of each SOW.
1.11 TIME SCHEDULES. If and to the extent that or any SOW or any part of
this Agreement includes any time schedule or times for performance or completion
of Services or other work, or for delivery or completion of deliverables, such
time schedule and times are estimates and are not guaranteed.
SECTION 2 - CYBERSTACK APPLIANCE
2.1 PROTECTION OF CYBERSTACK APPLIANCE. The Cyberstack appliance and its
configuration and components are confidential and proprietary to Center 7 (and
Center 7's suppliers / licensors, as applicable). The Cyberstack appliance will
be encased or enclosed in a case or other container. Customer shall not: (a)
open, penetrate or remove any of the casings, containers, panels or access
points of or to the Cyberstack appliance, (b) examine, analyze or reverse
engineer the Cyberstack appliance or its configuration or components, or (c)
transfer the Cyberstack appliance or any part thereof from the Cyberstack
Location, except as instructed or requested by Center 7 in writing. Customer
will not allow any third party to do any of the foregoing.
2.2 OPERATION OF CYBERSTACK APPLIANCE AND THIRD PARTY SOFTWARE. The
Cyberstack appliance will be operated and used by Center 7 to enable and
facilitate the performance of Services. Customer is not licensed or authorized
to operate or use the Cyberstack appliance. To the extent that the Cyberstack
appliance includes software from third party licensors (e.g., Unicenter TNG from
Computer Associates), such third party software is governed by and subject to
the applicable third party software license agreements. This also applies to
Unicenter TNG agents running on processors associated with Managed Assets.
2.3 CARE OF CYBERSTACK APPLIANCE. Customer will not damage or abuse the
Cyberstack appliance or subject it to any harmful conditions or environment.
Customer will comply with any reasonable instructions or guidelines from Center
7 for the care, environment, operational conditions, etc. applicable to the
Cyberstack appliance. In the event of any damage to, abuse of, or loss of the
Cyberstack appliance due to the negligence or
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other fault of Customer or any of its employees or contractors, Customer shall
reimburse Center 7 for the cost of repairing or replacing the Cyberstack
appliance or any component thereof.
SECTION 3 - CUSTOM DEVELOPMENT SERVICES
3.1 APPLICABILITY. This Section 3 is applicable if the Statement of Work
includes Development Services. If Development Services are included, then Center
7 shall perform such services in accordance with this Section 3 and the
applicable Statement of Work.
3.2 DELIVERABLES. "Deliverables" shall mean the computer programs and
any other works or authorship or materials developed or created by Center 7 for
Customer in the performance of the Development Services. Deliverables are
identified in the applicable Statement of Work.
3.3 LICENSE OF DELIVERABLES. Center 7 grants to Customer a license to
use the Deliverables and to copy the Deliverables and to distribute such copies
to others for their use. The license is worldwide, nonexclusive and fully
paid-up, provided Customer makes full payment in accordance with the applicable
Statement of Work. The license is subject to restrictions and limitations, if
any, as may be included in the Statement of Work. In the event of any conflict
between such restrictions or limitations and this Agreement, such restrictions
and limitations will control.
3.4 SOURCE CODE. Source code is not included in the Deliverables or the
license of Section 3.3, and Customer is not entitled to any source code, unless
specifically and expressly included in the applicable Statement of Work.
3.5 SPECIFICATIONS. If and to the extent that the applicable Statement
of Work includes any Specifications for the Deliverables, Center 7 shall develop
and create the Deliverables in material compliance with such Specifications.
After delivery of the Deliverables, Customer will have 30 days to test the
Deliverables for material compliance with the Specifications and to report in
writing to Center 7 any material noncompliance of the Deliverables with the
Specifications. If no material noncompliance is reported by Customer in
accordance with the foregoing, the Deliverables will be deemed accepted and in
compliance with the specifications. If a material noncompliance is reported to
Center 7, the Center shall correct the noncompliance and return the corrected
Deliverables to Customer for a repeat of the foregoing. Customer's sole remedy
for material noncompliance of the Deliverables with the Specifications shall be
a correction or reasonable work-around solution by Center 7. Center 7 shall have
no liability for any immaterial noncompliance.
SECTION 4 - MAINTENANCE AND SUPPORT
4.1 MAINTENANCE. Center 7 shall be responsible for maintenance of the
Cyberstack appliance, and Customer shall cooperate therewith. All decisions
concerning maintenance shall be within the discretion of Center 7 and Customer.
4.2 SUPPORT. Any support by Center 7 of Customer shall be described in
the applicable SOW and shall be considered Services.
SECTION 5 - PAYMENTS
5.1 FEES. In consideration of the Services, Customer shall pay to Center
7 the fees and other charges set forth in the Payment Schedule of the applicable
SOW (see Appendix C). Payment of these fees and other charges entitles Customer
to the Services specified in the applicable SOW. All payments to Center 7 under
this Agreement shall be in United States of America dollars and are due within
thirty (30) days after Customer's receipt of Center 7's invoice.
5.2 EXPENSES. In addition to these fees and other charges, Customer
shall reimburse Center 7 for reasonable and necessary costs and expenses
(including any travel, lodging and meals) incurred by Center 7 in its
performance of the Services. Provided, however, that to the extent the SOW(s)
indicates that Center 7 is responsible for such expenses, then Customer shall
have no obligation to reimburse Center therein. Notwithstanding anything herein
or the SOW(s) to the contrary, in the event that Center 7 personnel visit any
site of Customer because of a problem that is not caused by Center 7 or within
the scope of Center 7's responsibility under the applicable SOW, then Customer
shall reimburse Center 7 for the expenses incurred in connection with such
visit and shall pay Center 7 at Center 7's then-current standard rates for the
time involved with the problem. If the problem is Center 7's fault, then
Customer shall have no obligation to pay for Center 7's visit expenses or for
Center 7's time involved with the problem.
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5.3 TAXES. Any sales, use and other taxes or government assessments or
duties relating to this Agreement or to payments or services to be rendered
under this Agreement shall be paid by Customer in addition to all other payments
set forth in this Agreement. If any taxes are withheld from any payments to
Center 7 under this Agreement, Customer must pay such taxes and ensure that
Center 7 receives the full amount of all payments as stated in the Payment
Schedule. This Section 5.3 does not apply to Center 7's federal or state taxes
based upon its net income.
5.4 LATE PAYMENTS. Any payments payable by Customer that are more than
ten (10) days late ("late payments") from the date of the invoice shall be
subject to a finance charge of 1.5% per month until paid in full. In addition,
the failure of Customer to pay any fees due within ten (10) days after such fees
are due shall constitute a material breach of this Agreement, which shall
entitle Center 7, in its sole discretion, to (i) terminate the SOW(s) in
accordance with Section 8.2 and/or (ii) terminate, suspend, restrict or disable
the Services or any portion thereof until Customer has made full payment of all
fees and amounts currently owing, including finance charges and late charges.
Customer shall pay Center 7 for any and all costs and expenses, including
without limitation, attorneys' fees and court costs, incurred by Center 7 in
collecting payments from Customer or in otherwise enforcing this Agreement.
SECTION 6 - CONFIDENTIALITY
6.1 NONDISCLOSURE OF CONFIDENTIAL INFORMATION. Each Party acknowledges
that it may have access to certain confidential information of the other Party
concerning the other Party's business, plans, clients, technologies, products
and other information held in confidence by the other Party ("Confidential
Information"). Confidential Information includes all information in tangible or
intangible form that is marked or designated as confidential or that, under the
circumstances of its disclosure, should be considered confidential. Confidential
Information also includes, without limitation, any information disclosed by
Center 7 and/or Customer about the technologies, methodologies, equipment,
software or processes used by Center 7 and/or Customer in connection with the
Services, including any data, computer programs or information obtained by
either Party from third parties for use under this Agreement. Each Party agrees
that it will not use in any way, for its own account or the account of any third
party, except as expressly permitted by, or required to achieve the purposes of,
this Agreement, nor disclose to any third party (except as required by law or to
that party's attorneys, accountants and other advisors as reasonably necessary),
any of the other party's Confidential Information and will take reasonable
precautions to protect the confidentiality of such information, at least as
stringent as it takes to protect its own Confidential Information.
6.2 EXCEPTIONS. Neither Party shall have any obligation under Section
6.1 above with respect to information which is publicly known at the time of
disclosure to the receiving Party or which is in the receiving Party's
possession prior to disclosure by the disclosing Party. If through no fault of
the receiving Party, any Confidential Information of the disclosing Party
subsequently becomes public knowledge, then the receiving Party shall thereafter
have no obligation under Section 6.1 with respect to such Confidential
Information that has become publicly known. If any information is lawfully
disclosed or licensed by a third party to a receiving Party under no duty of
confidentiality, then Section 6.1 shall not restrict the receiving Party from
making any use or disclosure thereof that is lawfully authorized by the third
party. If any disclosure of Confidential Information is required by law,
government regulation, or court order, the receiving Party may make such
disclosure upon prior written notice to the disclosing Party so that the
disclosing Party may seek a protective order or take other protective action,
and the receiving Party shall cooperate therewith.
6.3 PRICING. Customer shall not disclose any of the pricing or fees
under this Agreement or any SOW to any third party.
6.4 DUE DILIGENCE DISCLOSURES. Disclosures prohibited by this Agreement
may be made by a receiving Party to prospective investors, lenders, acquirers,
underwriters, and others where a legitimate business need exists, but only for
their bona fide due diligence purposes and only if they are also under an
obligation of confidentiality at least as protective of the disclosing Party and
its Confidential Information as the provisions of this Section 6.
SECTION 7 - INDEMNITIES AND DISCLAIMERS
7.1 INTELLECTUAL PROPERTY INDEMNIFICATION. In the event that Center 7's
Cyberstack appliance infringes any United States patent, copyright or trade
secret of a third party not affiliated with Customer and such third party
asserts a claim of such infringement against Customer, then Center 7 shall
defend Customer against such claim, and shall pay any damages, attorneys' fees
and costs awarded to the third party for such claim, and shall pay
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any settlement of such claim, provided that: (i) Customer promptly gives notice
to Center 7 of such claim, (ii) Customer allows Center 7 to control the defense
and settlement of such claim, and (iii) Customer fully cooperates with Center 7
in connection with the defense and settlement of such claim. Center 7 may
remove, disable, modify or substitute any infringing Cyberstack appliance or
component thereof. Center 7 has no other obligation or liability in the event of
infringement and is not responsible for loss of profits or other losses or
damages of Customer. Center 7 has no other obligation of indemnification or to
defend or hold harmless relating to infringement. Center 7 shall not be
obligated or liable for any infringement based upon or caused by: (a) anything
provided by Customer or a third party, or (b) any altered, changed or modified
form of the Cyberstack appliance not made by Center 7, or (c) the Cyberstack
appliance in combination with anything not provided by Center 7, or (d) any
specifications, instructions or requirements from Customer, or (e) the laws of
any country or jurisdiction other than the United States of America or its
states.
7.2 DISCLAIMER. CENTER 7 MAKES NO WARRANTIES, REPRESENTATIONS OR
PROMISES NOT EXPRESSLY SET FORTH IN THIS AGREEMENT. CENTER 7 DISCLAIMS AND
EXCLUDES ANY AND ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A
PARTICULAR PURPOSE AND NONINFRINGEMENT. CENTER 7 MAKES NO WARRANTY WITH RESPECT
TO ANY HARDWARE OR SOFTWARE FROM OTHER THIRD PARTIES OR OTHER SOURCES.
7.3 LIMITATION ON LIABILITY. EXCEPT WITH RESPECT TO LIABILITY FOR
INFRINGEMENT OF INTELLECTUAL PROPERTY OR BREACH OF SECTION 2.1, NEITHER PARTY
SHALL BE LIABLE TO THE OTHER PARTY (REGARDLESS OF THE FORM OF ACTION OR THE
CLAIM E.G. CONTRACT, WARRANTY, TORT, MALPRACTICE AND/OR OTHERWISE) FOR INDIRECT,
INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES OR FOR ANY LOSS OF REVENUE,
PROFITS BUSINESS OPPORTUNITIES, OR FOR ANY FAILURE TO REALIZE SAVINGS OR OTHER
BENEFITS, EVEN IF ADVISED OF THE POSSIBILITY OF ANY OF THE FOREGOING. THE
AGGREGATE LIABILITY OF CENTER 7 RELATING TO OR ARISING FROM THE SOW(S) AND FOR
ANY AND ALL CAUSES OF ACTION SHALL NOT EXCEED THE AMOUNT OF FEES ACTUALLY PAID
BY CUSTOMER TO CENTER 7 UNDER THE APPLICABLE SOW. CENTER 7 IS NOT RESPONSIBLE
FOR LOSS OF OR LOSE OF USE OF ANY WEB SITE, INTERNET ACCESS, HARDWARE OR
SOFTWARE, LOSS OF DATA, COSTS OF RE-CREATING LOST DATA, THE COST OF ANY
SUBSTITUTE PERFORMANCE, EQUIPMENT OR PROGRAM, OR CLAIMS BY ANY PARTY OTHER THAN
CUSTOMER, EVEN IF ADVISED OF THE POSSIBILITY THEREOF. THIS AGREEMENT, AND THIS
SECTION 6 IN PARTICULAR, DEFINES A MUTUALLY AGREED UPON ALLOCATION OF RISK AND
THE FEES AND OTHER CONSIDERATION HAVE BEEN SET TO REFLECT SUCH ALLOCATION. THIS
SECTION 6.3 SHALL NOT APPLY TO ANY TORT LIABILITY OF EITHER PARTY BASED ON
NEGLIGENCE OR WILLFUL MISCONDUCT RESULTING IN PHYSICAL DAMAGE TO TANGIBLE
PROPERTY OR PERSONAL INJURY OR DEATH.
SECTION 8 - TERMINATION
8.1 TERM AND TERMINATION. The term and termination of each SOW shall be
as stated in the SOW.
8.2 BREACH. If either Party breaches the SOW(s) or this Agreement and
fails to cure said breach within 30 days after receiving notice of said breach
from the nonbreaching Party, then the nonbreaching Party may terminate the SOW
and this Agreement as it applies to the terminated SOW. This Section shall not
limit the relief, remedies and damages to which the nonbreaching Party may be
entitled.
8.3 SURVIVAL. In the event of any termination or expiration of the
SOW(s) or this Agreement, the following shall apply: (a) Sections 5, 6, 7, 8 and
9 and all obligations to protect the Cyberstack appliance or to indemnify or
hold harmless shall survive termination and remain in effect; (b) Termination
shall not affect or delay any payment under this Agreement which would be
payable in the absence of termination; (c) Services shall cease upon
termination; and (d) The Cyberstack appliance and any and all other proprietary
materials or Resources owned or provided by Center 7 or its suppliers or
licensors shall be delivered by Customer to Center 7 in accordance with Center
7's reasonable instructions.
SECTION 9 - GENERAL PROVISIONS
9.1 ASSIGNMENT AND SUCCESSORS. This Agreement is not assignable or
transferable, except that this Agreement may be assigned or transferred by
Center 7 to any third party who acquires substantially all of Center 7's assets
relating to the Services.
9.2 GOVERNING LAW AND FORUM. This Agreement shall be governed by the
laws of the state of Utah without giving effect to conflict or choice of law
principles. Any litigation between the Parties shall be conducted
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exclusively in Utah state courts or the federal district courts within Utah and
their respective appellate courts. The Parties agree and submit to such
exclusive jurisdiction and venue.
9.3 FORCE MAJEURE. Except for obligations to make payment, neither Party
shall be deemed in breach of this Agreement for any failure to perform an
obligation where such failure is caused by an Act of God, labor dispute or
shortage, any disruption in or failure of communications, equipment, software or
the Internet, or any other circumstances or cause beyond the control of that
Party.
9.4 WAIVER. Any waiver under this Agreement must be in writing and any
waiver of one event shall not be construed as a waiver of subsequent events.
9.5 ATTORNEYS' FEES. In the event of any litigation or arbitration
between the Parties relating to this Agreement or the Services or Resources, the
prevailing Party shall be entitled to recover from the other Party all
reasonable attorneys' fees and other reasonable costs incurred by the prevailing
Party in connection therewith.
9.6 CONSTRUCTION. This Agreement (including each SOW) represents the
wording selected by the Parties to define their agreement and no rule of strict
construction shall apply against either Party. This Agreement is written in, and
shall be governed by, the English language.
9.7 GOVERNMENT APPROVALS. If any special government approvals, permits,
licenses, or other authorizations are necessary for the performance of the
Services, then Customer shall obtain such approvals, permits, licenses, or other
authorizations for the Parties at Customer's expense.
9.8 RELATIONSHIP. Neither Party is the partner, joint venturer, agent or
representative of the other Party. Each Party is an independent contractor.
There is no employment relationship between the Parties. Neither Party has the
authority to make any representations or warranties or incur any obligations or
liabilities on behalf of the other Party. Neither Party shall make any
representation to a third party inconsistent with this Section 8.8.
9.9 SUBCONTRACTORS. Center 7 may subcontract Services or
responsibilities to subcontractors, but this shall not excuse Center 7 from its
obligations (i) to be the single point of contact for the Services and (ii) to
ensure that the Services and Center 7's responsibilities are performed in
accordance with this Agreement, even if its subcontractors fail to perform.
Center 7 will be solely responsible for instituting screening of Center 7's
employees to ensure that each person who performs at the direction of Center 7
is either a U.S. citizen or alien authorized by the U.S. Immigration and
Naturalization service to work in the United States.
9.10 INSURANCE. During the Term of this Agreement, both parties shall
procure and maintain, at its expense, at least the following types of insurance.
COVERAGE LIMITS
(i) Workers Compensation Statutory
(ii) Employer's Liability $500,000 each occurrence
(iii) Public Liability (bodily injury) $1,000,000 combined single limit
(iv) Public Liability (property damage) $1,000,000 combined single limit
(v) Automobile Liability $1,000,000 combined single limit
Both parties agree to furnish to the other with insurance certificates, showing
it's compliance with this Section. Such certificates shall contain a statement
that the insurance carrier will not cancel or modify any or all of such
insurance without giving the other party at least thirty (30) days prior written
notice. Both parties shall be named as an additional insured party to the other
party under the policies listed in items (iii) and (iv) above.
9.11 COVENANT TO NOT RECRUIT PERSONNEL. Both parties will not hire or
attempt to hire or assist in the hiring or attempted hiring of any of the other
party's employees or consultants, for a period beginning on the Effective Date
and ending two (2) years after this Agreement is terminated.
9.12 ENTIRE AGREEMENT. This Agreement (which includes each applicable
SOW): (i) represents the entire agreement between the Parties relating to the
subject matter of this Agreement, (ii) supersedes all prior purchase orders,
agreements, understandings, representations and warranties applicable to the
subject matter of this Agreement, and (iii) may only be amended, canceled or
rescinded by a writing signed by both Parties. Any terms or conditions of any
purchase order or other document submitted by Customer in connection with any
Services, which are in addition to, different from or inconsistent with the
terms and conditions of this Agreement are not binding on Center 7 and are
ineffective.
9.13 EXECUTION. The persons signing below represent that they are duly
authorized to execute this Agreement for and on behalf of the Party for whom
they are signing.
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Agreed to and accepted by:
MTI ("CUSTOMER")
By (signature): ________________________
Name (print): Paul Emery
Title: COO
CENTER 7, INC. ("CENTER 7")
By (signature): ________________________
Name (print): ________________________
Title: ________________________
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EXHIBIT 1
GENERAL FORM OF STATEMENT OF WORK
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[CENTER 7/ INC.]
[C7 LOGO] STATEMENT OF WORK UNDER PILOTCENTER AGREEMENT
Confidential and Proprietary to Center 7
Unpublished Work -- Copyright Center 7
All Rights Reserved
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STATEMENT OF WORK NO. ___
Date: _____________
This Statement of Work (the "SOW") is entered into under the terms and
conditions of the Agreement (Agreement No. ____) dated ____________, 2001 by and
between ____________ ("Customer") and Center 7, Inc. ("Center 7"). In the event
of any conflict between this SOW and the PilotCenter Agreement, this SOW shall
govern. This Statement of Work includes the following attached Appendices:
Appendix A: Statement of Services
Appendix B: Resources
Appendix C: Payment Schedule
Appendix D: Contacts and Notices
Appendix E: Other Terms and Conditions
This SOW, including the above referenced Appendices, is agreed to and
accepted by Customer and Center 7:
Authorized Signatures:
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For Customer For Center 7
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