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EXHIBIT 10.2
TECHNICAL SUPPORT SERVICES AGREEMENT
This Technical Support Services Agreement (the "Agreement") is entered
into this 1ST day of April, 1999, by and between Insurance Management Solutions,
Inc., (herein, "IMS"), a Florida corporation, with its principal place of
business at 360 Central Avenue, St. Petersburg, Florida, 33701, and, Bankers
Insurance Group, Inc. and its subsidiaries (collectively, the "BIG Entities"), a
Florida corporation, whose principal place of business is located at 360 Central
Avenue, St. Petersburg, Florida, 33701.
WHEREAS, IMS offers technical support services relating to computer
programming, systems analysis and other related matters (collectively,
"Services"); and
WHEREAS, the BIG Entities are desirous of contracting with IMS for the
aforementioned Services.
NOW, THEREFORE, the parties hereto, in consideration of the covenants
and agreements contained herein and in further consideration of the benefits and
advantages flowing from each to the other, covenant and agree as follows:
SECTION 1
SERVICES PROVISIONS
A. Services. IMS agrees to provide Services reasonably requested from
time to time by one or more BIG Entities. IMS shall provide such Services
utilizing its own employees and/or independent contractors mutually acceptable
to IMS and the applicable BIG Entity(ies). Such Services may include writing and
designing new programs, trouble-shooting existing and new programs, maintaining
existing programs, testing and approving any suggested programs, and generally
advising the BIG Entities, regarding systems either built or maintained for the
BIG Entities. IMS shall be solely responsible for directing and supervising all
aspects of its employees' job performance.
1. BIG Entities may exercise discretion in the employment by IMS of
independent contract programmers for purposes of completing specific
projects under required scheduling deadlines.
2. This Agreement shall serve as a "master" agreement between IMS and
the BIG Entities for purposes of establishing an ongoing technical
services arrangement. Individual addenda shall be attached to this
Agreement for each specific project requested by any BIG Entity(ies)
and shall be substantially in the form attached hereto as Exhibit
"A".
B. Project Management. Each party shall designate on Exhibit "A" one or
more individuals to serve as "Project Manager". From time to time, at its
discretion, each party may designate replacement Project Managers. The Project
Managers shall have authority to give and receive any notices, approvals, or
other communications required hereunder, and issue and approve any changes and
otherwise manage the project. On a regular basis and as
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mutually agreed to by the parties, the Project Managers, and any other
appropriate or necessary personnel shall conduct project reviews to discuss in
person or by other means the progress on the project and any other matters that
need to be brought to the attention of one party by the other.
C. Term; Termination. IMS and the BIG Entities understand and agree
that either IMS or the BIG Entities may terminate this Agreement upon sixty (60)
days written notice of such termination given to the other party. In addition,
both parties agree that (i) either IMS or the BIG Entities may terminate this
Agreement if the other party materially breaches any of the provisions of this
Agreement and fails to correct such breach within fifteen (15) business days
after receipt of written notice of breach from the non-breaching party, and (ii)
the BIG Entities may terminate this Agreement if, in their reasonable
discretion, the BIG Entities determine that the employees and/or independent
contractors being utilized by IMS are unable to perform the Services, and IMS
fails to take corrective action within fifteen (15) business days after receipt
of written notice from the BIG Entities.
SECTION 2
COMPENSATION
A. Compensation. The BIG Entities shall compensate IMS on the basis of
the number of hours worked by IMS employees in performing Services for the Big
Entities and for any other expenses reasonably incurred by IMS in performing the
Services for the BIG Entities, as set forth on an invoice submitted by IMS. The
basis for the invoice will be hourly time sheets completed by such individuals.
Such time sheets shall be made available at reasonable times for review, upon
request by the BIG Entities. The hourly rate of compensation shall be as
indicated on the attached Exhibit "A", which shall specify the hourly rate and
job function with particularity.
B. Travel. Reasonable travel and overnight lodging shall be reimbursed
only if authorized by the BIG Entities and specified in Exhibit "A" for the
project.
C. Payment. Payment of all fees for Services performed and expenses
that are invoiced to the BIG Entities shall be due thirty (30) days from the
invoice date. All payments due IMS hereunder shall be due in United States
dollars and shall be directed to the IMS Accounting Department. IMS reserves the
right to charge interest on any unpaid balance at the rate of 1.5% per month, or
at the maximum rate permitted by law if such maximum rate is less than 1.5% per
month. If the BIG Entities have a dispute regarding amounts owed by the BIG
Entities under this Agreement, the BIG Entities shall pay any undisputed amounts
owed by the BIG Entities without set-off or hold back for any disputed amounts.
D. Taxes. The BIG Entities shall be responsible for the payment of all
applicable taxes except those based solely on the income of IMS.
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SECTION 3
CONFIDENTIALITY AND NONDISCLOSURE
IMS recognizes and acknowledges that the list of the BIG Entities'
customers, trade secrets, data processing systems, computer software, computer
programs, or other systems, data, methods, or procedures developed or used by
IMS, as they may exist from time to time, are valuable, special and unique
assets of the BIG Entities' business. IMS will not, during or after the term of
this Agreement without the prior written consent of the BIG Entities, which
consent may be arbitrarily withheld, and except to the extent necessary to
accomplish assignments on behalf of the BIG Entities in which IMS is, at any
given time during the term of this Agreement, currently and actively engaged,
possess, transmit, copy, reproduce, or disclose the list of the BIG Entities'
customers or any part thereof or any of the BIG Entities present or future trade
secrets, or any of the BIG Entities data processing systems, computer software,
computer programs or other systems, data, methods, or procedures 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. In addition,
IMS will take all reasonable precautions to ensure that its employees comply
with the aforementioned restrictions. In the event of a breach or threatened
breach by IMS of the provisions hereof, the BIG Entities shall be entitled to an
injunction restraining IMS from disclosing, in whole or in part, the list of the
BIG Entities' customers or the BIG Entities' 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 the BIG Entities of
all copies of customer lists, manuals, data, software, computer programs, or
written procedures in the possession of IMS. Nothing herein shall be construed
as prohibiting the BIG Entities from pursuing any other remedies available to it
for such breach or threatened breach, including the recovery of damages from
IMS. The existence of any claim or cause of action of IMS against the BIG
Entities shall not constitute a defense to the enforcement by the BIG Entities
of this covenant. No failure of the BIG Entities 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 IMS.
SECTION 4
TITLE AND INTELLECTUAL PROPERTY RIGHTS
A. Subject to IMS's rights in its background technology and generic
technology, all programs and software written for the BIG Entities or created or
modified for the BIG Entities in anyway whatsoever, shall at all times be and
remain the exclusive property of the BIG Entities.
B. Background Technology. The BIG Entities acknowledge that IMS owns or
holds a license to use and sublicense various pre-existing or independently
developed tools, routines, subroutines, software objects, source code, object
code, and other programs, data, and materials that IMS may provide as part of
the Services delivered to the BIG Entities. The
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BIG Entities agree that IMS shall retain any and all title rights it may have in
such background technology, and that this background technology, per se, does
not constitute the BIG Entities' trade secrets. IMS hereby grants the BIG
Entities a nonexclusive, perpetual, fully paid-up worldwide license to make,
use, perform, display, reproduce, modify, distribute copies, and make derivative
works of the background technology in the programs serviced and software
authored under this Agreement in connection with the use of those serviced or
authored programs.
C. Generic Technology. The BIG Entities acknowledge that IMS will, in
performing Services under this Agreement, develop various tools, routines,
subroutines, software objects, and other programs, data and materials that are
generic in nature. The BIG Entities agrees that this generic technology, per se,
shall not constitute the BIG Entities' trade secrets and that IMS shall retain
any and all rights to such generic technology. IMS hereby grants the BIG
Entities a nonexclusive, perpetual, fully paid-up, worldwide license to make,
use, perform, display, reproduce, modify, distribute copies and make derivative
works of the generic technology in the programs serviced or authored under this
Agreement in connection with the use of the those serviced or authored programs.
SECTION 5
INSURANCE AND TAXES
A. IMS shall be solely responsible for the withholding and payment of
all taxes, both state and federal, all workers' compensation and unemployment
insurance premiums and taxes, all social security taxes and any other employment
fees, taxes or premiums of any kind relating to any employees of IMS providing
Services hereunder. At no time shall employees of IMS be considered employees of
the BIG Entities.
B. IMS agrees to maintain minimum limits or participate on an
appropriate percentage basis with the BIG Entities regarding insurance coverage
during the term of this Agreement as follows:
1. Workers' Compensation insurance
2. Employers Liability - $250,000 limits
3. Comprehensive General Liability to include both bodily injury and
property damage - $500,000 limits
IMS agrees to hold the BIG Entities harmless from direct
out-of-pocket expenses of the BIG Entities which may result from IMS' failure to
withhold these taxes or failure to conduct itself in accordance with applicable
state and federal law in the performance of Services hereunder. However, IMS
shall not be liable in any event for the BIG Entities' loss of profits, business
good will or other consequential, special or incidental damages.
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SECTION 6
SAFE WORK ENVIRONMENT
A. IMS agrees that it will comply with all health and safety laws,
regulations, ordinances, directives and rules imposed by controlling Federal,
state and local governments.
B. IMS agrees to comply, at its expense, with any specific directives
from its workers' compensation carrier, or any government agency having
jurisdiction over the work place, health or safety.
C. IMS shall provide and insure use of all personal protective
equipment, as required by Federal, state or local law, regulations, ordinances,
directives or rules or as deemed necessary by the BIG Entities or by the BIG
Entities' workers' compensation carrier.
SECTION 7
WARRANTIES
IMS represents and warrants that all Services rendered by it in
connection with the projects will be provided in accordance with professional
standards for care and skill and in a diligent manner.
The BIG Entities acknowledge that data processing and software
coding entails the likelihood of some human and machine error, omissions,
delays, and losses. The BIG Entities represent and warrant that it shall adopt
reasonable measures to limit its exposure with respect to such potential losses
and damages, including, without limitation, examining results from serviced
programs prior to use thereof and providing for the identification and
correction of errors.
SECTION 8
DISCLAIMER OF ALL OTHER WARRANTIES
IMS DOES NOT WARRANT THAT IT WILL BE ABLE TO MEET OR RESOLVE ANY OR
ALL ERRORS, QUESTIONS, OR REQUESTS. All SERVICES ARE PROVIDED "AS IS". EXCEPT
FOR THE EXPRESS WARRANTIES THAT ARE SET FORTH ABOVE, IMS MAKES NO ADDITIONAL
WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO THE SERVICES, AND ANY
ACCOMPANYING CODE AND DOCUMENTATION. IN PARTICULAR, IMS DOES NOT WARRANT THAT
THE OPERATION OF SERVICED PROGRAMS OR NEWLY AUTHORED PROGRAMS WILL AT ALL TIMES
BE UNINTERRUPTED AND ERROR-FREE. IMS EXPRESSLY DISCLAIMS THE IMPLIED WARRANTIES
OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
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SECTION 9
LIMITATION OF LIABILITY
IN THE EVENT OF A DEFAULT BY IMS RELATED TO THE SERVICES TO BE
PROVIDED HEREUNDER, THE BIG ENTITIES SOLE AND EXCLUSIVE REMEDY SHALL BE THE
REPERFORMANCE OF THE SERVICES TO BE PROVIDED BY IMS HEREUNDER OR, AT IMS'S
OPTION, THE RETURN OF THE FEES ALLOCABLE TO THAT PORTION OF THE SERVICES THAT IS
NONCONFORMING. IF THE ABOVE LIMITATION OF LIABILITY IS INEFFECTIVE, IN NO EVENT
SHALL IMS'S LIABILITY FOR DAMAGES ARISING OUT OF OR RELATED TO ANY DEFAULT OF
IMS HEREUNDER, WHETHER IN AN ACTION IN CONTRACT, TORT, OR OTHERWISE, EXCEED THE
TOTAL FEES ACTUALLY PAID BY THE BIG ENTITIES TO IMS HEREUNDER FOR THE SPECIFIC
PROJECT TO WHICH THE DEFAULT RELATED DURING THE TWELVE (12) MONTHS IMMEDIATELY
PRECEDING THE DATE OF SUCH DEFAULT BY IMS.
THE SECTIONS ON LIMITATIONS ON LIABILITY, WARRANTIES, AND
DISCLAIMERS OF WARRANTIES ALLOCATE THE RISKS OF THE PARTIES. THIS ALLOCATION IS
REFLECTED IN THE PRICING OF THIS AGREEMENT AND IS AN ESSENTIAL ELEMENT OF THE
BASIS OF THE BARGAIN BETWEEN THE PARTIES.
SECTION 10
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.
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SECTION 11
ATTORNEYS' FEES
The parties hereto agree that, in the event of any legal action in
connection with this Agreement, the prevailing party shall be entitled to
recover all of its legal expenses, including reasonable attorney's fees and
costs, whether the same are incurred in connection with trial or appeal, and to
have the same awarded as part of the judgment in the proceeding in which such
legal expenses and attorneys' fees were incurred.
SECTION 12
CHOICE OF LAW
This Agreement shall be construed in accordance with and governed by
the laws of the State of Florida, with the exception of the conflict of laws
provisions. The state and federal courts of competent jurisdiction in Pinellas
County, Florida, will have sole and exclusive jurisdiction for any claims or
suits arising out of this Agreement. The venue for any action brought to enforce
any of the provisions hereof shall be Pinellas County, Florida and any action
commenced in any other forum shall be removed to a court of competent
jurisdiction in Pinellas County, Florida.
SECTION 13
RELATIONSHIP OF THE PARTIES
No agency, partnership, joint venture, or employment relationship is
created between IMS and the BIG Entities by this Agreement. Neither party has
any authority, express or implied, to create any obligation or responsibility on
behalf of the other party. This Agreement creates no third party beneficiary
right of action upon any person or entity in any manner whatsoever.
SECTION 14
ENTIRE AGREEMENT
This Agreement including the exhibits and addenda hereto expresses
the whole and entire agreement between the parties and supersedes all prior
agreements and understandings. This Agreement cannot be modified or changed by
oral agreement. Any modification or amendment shall be in writing and signed by
all parties.
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IN WITNESS WHEREOF, the parties hereto, through their respective duly
authorized officers, have caused this Agreement to be executed as of the day and
year first above set forth.
Bankers Insurance Group, Inc.
Attest:
/s/ Richard Torra By: /s/ G. Kristen Delano
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Title: Secretary
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Witness: Insurance Management Solutions, Inc.
/s/ Christopher P. Breakiron By: Jeffrey S. Bragg
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Title: COO
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EXHIBIT "A"
1. Internal Associates: Hourly Rate = $125.00
2. External Contractors: Actual Cost Plus 5%
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No.
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ADDENDUM
TO TECHNICAL SUPPORT SERVICES AGREEMENT
DATED APRIL, 1, 1999
IMS Project Manager:
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BIG Project Manager:
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Travel is authorized to
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Description of services to be designed, developed, maintained, or enhanced:
Estimated Cost $ $
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Estimated Hours to Complete
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Both estimated hours and costs represent a good faith effort on the part of IMS
to estimate the time and cost necessary to complete the assignment. IMS based
its estimates on information provided by BIG [put in specific BIG Entity]. Final
costs and hours may differ from the above estimates. BIG [put in specific BIG
Entity] shall have the right to review both the hours and the costs associated
with the project on an ongoing basis.
Bankers Insurance Group, Inc.
Attest:
By:
- ------------------------------------- ---------------------------------
Title:
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Witness: Insurance Management Solutions, Inc.
By:
- ------------------------------------- ---------------------------------
Title:
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