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EXHIBIT 10.25
SOFTWARE MAINTENANCE AND ENHANCEMENT AGREEMENT
This Software Maintenance and Enhancement Agreement (this "Agreement")
is made as of the date indicated below by and between Systems Integration and
Imaging Technologies Incorporated, 7901 4th Street North, Suite 210, St.
Petersburg, Florida 33702 (hereinafter referred to as "Si Tech"), and Insurance
Management Information Services, Inc., 360 Central Avenue, St. Petersburg,
Florida 33701 (hereinafter referred to as "IMIS").
WHEREAS, IMIS has exercised an option to purchase from SI Tech a
collateralized loan tracking program known as SI TRAC I (hereinafter referred to
as "PROGRAM"); and
WHEREAS, IMIS desires to receive maintenance service for the Program
and enhancements; and
WHEREAS, SI Tech, desires to provide such maintenance and enhancement
services of such Program.
NOW, THEREFORE, for and in consideration of the covenants and promises
herein recited, it is understood and agreed as follows:
1. Enhancements. To the extent that, during the term hereof, SI Tech shall
enhance the Program, such enhancement shall be provided to IMIS via one
(1) copy of every new release of the Program, including all
modifications, enhancements and corresponding technical documentation
of the Program subject to this Agreement which shall be provided in
both source and object code in machine readable form.
2. Maintenance Services. SI Tech agrees, during the term hereof, to
maintain the Program in such manner that the Program shall perform in
substantial conformance with the then-existing published specifications
which may be updated from time to time and furnished to IMIS and to
ensure that the Program operates both source and object code in machine
readable form. SI Tech shall be available during normal IMIS working
hours to respond to inquiries by IMIS for technical consultation
concerning maintenance and upgrading of the Program and management of
employees working with the Program.
3. Modifications. Title to any and all property rights in any new version,
modification, rewriting or enhancement of the Program and all related
documentation and other materials supplied to IMIS hereunder are and
shall become part of the assets being acquired by IMIS in an Asset
Purchase Agreement of even date hereof.
4. Specially Requested Enhancements. SI Tech understands that IMIS may in
the future request that SI Tech develop, at IMIS's expense, certain
enhancements to the Program. SI Tech hereby agrees that it will develop
all enhancements requested by IMIS which reasonably relate to the
functions or processes
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performed by Program. IMIS agrees to pay a reasonable rate for all
services performed in developing any such enhancements and to reimburse
Si Tech for all out-of-pocket expenses incurred in connection
therewith. Si Tech reserves that right to reject requests by IMIS for
enhancements which do not reasonably relate to the functions or
processes performed by Program or which by their nature would require
that Si Tech significantly restructure Program in order to make Program
compatible with such requested enhancement.
5. Terms And Payment. This Agreement shall be for a term of five years
commencing on April 1, 1997 with payment due to Si Tech of Twenty Five
Thousand Dollars ($25,000.00) every three months on the first business
day of that month for a total of Five Hundred Thousand Dollars
($500,000.00) over the five year term and can only be terminated
pursuant to Section 8.
6. Employees. Employees shall mean those current employees of SI Tech who
develop and service the Program.
7. Responsibilities of SI Tech. SI Tech, subject to available funding from
and review by IMIS shall:
a) Establish and maintain programs to promote the most effective
utilization of the acquired Program;
b) Maintain quality staffing;
c) Maintain the Program and any enhancements or modifications so
as to maximize the potential of the business serviced by the
Program.
8. Default by SI Tech. SI Tech shall be deemed to be in default under this
Agreement in the event it shall fail to maintain the Program, or fail
to keep, observe or perform any covenant, agreement, term or provision
of this Agreement to be kept, observed or performed by SI Tech, and
such default shall continue for a period of thirty (30) days after
written notice thereof by IMIS to SI Tech or, if such default cannot be
cured within such thirty (30) day period, then such additional periods
as shall be reasonable, provided SI Tech is capable of curing same, has
proceeded to commence cure of such default within said period, and
thereafter diligently prosecutes the cure to completion.
9. Remedies of IMIS. Upon the occurrence of an event of default by SI Tech
as specified in Section 8 of this Agreement and expiration of any
applicable cure period provided by this Agreement, or if IMIS does not
exercise its option to acquire the Program, IMIS shall be entitled to
terminate this Agreement.
10. No Waiver of Default. The failure of IMIS to seek remedy for any
violation of, or to insist upon the strict performance of, any term or
condition of this Agreement shall not prevent a subsequent act by SI
Tech which would have originally constituted a violation of this
Agreement, from having all the force and effect of an original
violation. IMIS may waive any breach or threatened breach by SI Tech or
any term or condition herein contained only by writing delivered to the
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party in default. The failure by IMIS to insist upon the strict
performance of any one of the terms or conditions of this Agreement or
to exercise any right, remedy or election herein contained not
permitted by law shall not constitute or be construed as a waiver or
relinquishment for the future of such term, condition, right, remedy or
election, but the same shall continue and remain in full force and
effect. All rights and remedies IMIS may have at law, in equity or
otherwise for any breach of any term or condition of this Agreement,
shall be distinct, separate and cumulative rights and remedies and no
one of them, whether or not exercised by IMIS, shall be deemed to be in
exclusion of any right or remedy of IMIS.
11. Not Partners. SI Tech and IMIS and any of its affiliates are not and
shall not be considered as joint venturers, partners or agents of each
other and neither shall have the power to bind or obligate the other.
12. Construction of Agreement. Words of a gender used in this Agreement
shall be held to include any other gender, the words in a singular
number held to include the plural, when the sentence so requires.
13. Captions. The paragraph captions as to contents of the particular
paragraphs herein are inserted only for convenience and are in no way
to be construed as part of this Agreement or as a limitation of the
scope of the particular paragraph in which they are referred.
14. Modification. No change or modification of this Agreement shall be
valid unless the same shall be in writing and signed by all of the
parties hereto.
15. Attorney's Fees. Subject to reasonable construction and sound business
practices, if SI Tech, or IMIS should bring an action alleging breach
of this Agreement or seeking to enforce, rescind, renounce, declare,
void or terminate this Agreement or any provisions thereof, the
prevailing party shall be entitled to recover all of its legal
expenses, including reasonable attorney's fees and costs (including
legal expenses for any appeals taken), and to have the same awarded as
part of the judgment in the proceeding in which such legal expenses and
attorney's fees were incurred.
16. Independent Contractor. IMIS and SI Tech agree that SI Tech will act as
an independent contractor in the performance of its duties under this
contract. The manner and means of conducting the work are under the
sole control of SI Tech. Accordingly, SI Tech shall be responsible for
the payment of all taxes including federal, state and local taxes
arising out of SI Tech's activities in accordance with this contract,
including by way of illustration, but not limitation, federal and state
income tax, social security tax, unemployment insurance tax, and any
other taxes or business license fees as required. In addition, as an
independent contractor, SI Tech shall not be entitled to workers
compensation benefits, unemployment benefits, insurance benefits,
vacation pay, or any other employee benefit that IMIS may offer its
full or part time employees.
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17. Nondisclosure. SI Tech recognizes and acknowledges that the list of
IMIS and its affiliates customers, trade secrets, data processing
Programs, computer software, computer programs, or other Programs,
data, methods, or procedures developed or used by IMIS, as they may
exist from time to time, are valuable, special and unique assets of
IMIS's business. SI Tech will not, during or after the term of this
agreement without the prior written consent of IMIS, which consent may
be arbitrarily withheld, and except to the extent necessary to
accomplish assignments on behalf of IMIS in which SI Tech is, at any
given time during the term of SI Tech's tenure with IMIS, currently and
actively engaged, possess, transmit, copy, reproduce, or disclose the
list of IMIS's customers or any part thereof or any of IMIS's present
or future trade secrets, or any data processing Programs, computer
software, computer programs or other Programs data, methods, or
procedures except as provided in that Software License Agreement
executed on even date herewith, or as required by legal process, to any
person, firm, corporation, association, or any other entity for any
reason or purpose whatsoever, nor will the undersigned assist anyone
else to do so provided, however, that if IMIS is in material breach of
this Agreement as determined by the arbitration panel as provided
herein, then, in that instance, SI-Tech shall not be subject to the
terms of this section with respect to the customers, trade secrets,
data processing systems, computer software, programs or other systems,
methods or procedures serviced or utilized by SI-Tech prior to the
execution of this Agreement. In the event of a breach or threatened
breach by SI Tech of the provisions hereof, IMIS shall be entitled to
an injunction restraining SI Tech from disclosing in whole or in part,
the list of IMIS's customers or IMIS's trade secrets, or from rendering
any services to any person, firm, corporation, association, or other
entity to whom such list or such trade secrets, in whole or in part,
has been disclosed or is threatened to be disclosed and requiring the
return to IMIS of all copies of customer lists, manuals, data,
software, computer programs, or written procedures in the possession of
SI Tech. Nothing herein shall be construed as prohibiting IMIS from
pursuing any other remedies available to it for such breach or
threatened breach, including the recovery of damages from SI Tech. No
failure of IMIS to exercise any right given hereunder shall be taken or
construed as a waiver of its right to seek any remedies by reason of
any past, present, or future breaches of the Agreement on the part of
SI Tech.
18. Assignment. IMIS may assign any or all of its rights and duties under
this Agreement at any time and from time to time without the consent of
SI Tech. SI Tech may not assign any of their rights or duties under
this Agreement without the prior written consent of IMIS.
19. Severability. All agreements and covenants contained herein are
severable and in the event any of them shall be held to be illegal,
invalid or unenforceable by any Court of competent jurisdiction, this
Agreement shall be interpreted as if such illegal, invalid, or
unenforceable agreements or covenants were not contained herein.
20. Choice Of Law/Venue. This Agreement shall be construed in accordance
with and governed by the laws of the State of Florida, without regard
to choice of law
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provisions. Venue for all actions arising out of this Agreement shall
be in Pinellas County Florida.
a) All disputes arising out of this Agreement shall be resolved
by arbitration in St. Petersburg, Florida before three (3)
neutral and independent arbitrators in accordance with the
Commercial Arbitration Rules of the American Arbitration
Association. Arbitration may be commenced at any time by any
party hereto giving written notice to each other party to a
dispute that such dispute has been referred to arbitration
under this Section. The arbitrators shall be selected by the
joint agreement of the parties, but if they do not so agree
within twenty (20) days after the date of notice referred to
above, the selection shall be made pursuant to the American
Arbitration Association rules from the panels of arbitrators
maintained by such Association. Any award rendered by the
arbitrators shall be conclusive and binding upon the parities
hereto; provided, however, that any such award shall be
accompanied by a written opinion of the arbitrators giving the
reasons for the award. This provision of arbitration shall be
specifically enforceable by the parties and the decision of
the arbitrators in accordance herewith shall be final and
binding and, except with respect to manifest errors of law,
there shall be no right of appeal therefrom. Judgment upon the
award rendered by the arbitrators may be entered in any court
having jurisdiction thereof. The prevailing party shall be
entitled recovery from the losing party all costs of
enforcement and arbitration (including its attorneys' fees and
costs) the losing party shall pay the fees and expenses of the
arbitrators, all as determined by the arbitrators. The parties
consent that an award may be vacated by a court of competent
jurisdiction in the case of a manifest error of law on the
part of arbitrators. The arbitrators have the power to grant
compensatory damages, equitable relief and declaratory relief.
b) Notwithstanding any choice of law provided for herein the
section shall be governed by the Federal Arbitration Act and
federal law applicable to arbitration. Any party hereto may
seek any provisional remedy or interim relief in a court of
competent jurisdiction without waiving the right to
arbitration.
c) Nothing contained in this Section shall prevent the parties
from settling any dispute by mutual agreement at any time.
21. Notices. Any and all notices, designations, consents, offers,
acceptances, or any other communication provided for herein shall be
given in writing by hand delivery, by overnight carrier, by registered
or certified mail or by facsimile transmission and shall be addressed
as follows:
To IMIS: Insurance Management Information Services, Inc.
360 Central Avenue
St. Petersburg, FL 33701
Attention G. Kristin Delano
Telephone (813) 823-4000 ext 4416
Fax (813) 823-6518
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To: SI Tech Karl J. Wall
Systems Integration and Imaging Technologies
Incorporated
7901 4th Street North, Ste. 210
St. Petersburg, FL 33701
Telephone (813) 577-3771 ext. 201
Fax (813) 577-4671
Copy to: C. Philip Campbell, Jr.
Attorney At Law
Shumaker, Loop & Kendrick
101 East Kennedy Boulevard, Suite 2800
Tampa, FL 33602-5151
Telephone (813) 229-7600
Fax (813) 229-1660
Notices sent by hand delivery shall be deemed effective on the date of hand
delivery. Notices sent by overnight carrier shall be deemed effective on the
next business day after being placed into the hands of the overnight carrier.
Notices sent by registered or certified mail shall be deemed effective on the
third business day after being deposited into the post office. Notices sent by
facsimile transmission shall be deemed to be effective on day when sent if sent
prior to 4:30 p.m. (the time being determined by the time zone of the recipient)
otherwise they shall be deemed effective on the next business day.
IN WITNESS WHEREOF, the parties hereto executed this Agreement on the
day and year set forth below in St. Petersburg, Florida.
WITNESSES: "IMIS"
Insurance Management Information
Services, Inc.
/s/ Thomas J. Balkan BY: /s/ G. Kristin Delano
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G. Kristin Delano, Secretary
/s/ Joseph W. McNally Date: 1-7-97
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WITNESSES: "SI Tech"
Systems Integration and Imaging
Technologies Incorporated
By: /s/ Karl J. Wall
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Karl J. Wall, Chairman and CEO
Date: 1-7-97
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