HomeMy WebLinkAbout20090283.tifft► HOVServices
WM Exceed Expectations
Enhancing service through imaging
A proposal for:
Weld County and ACS
Scanning and Maintenance
Prepared by:
HOV SERVICES
Brad Schmelzer
January 20, 2009
Ccncevti elefictcc
2009-0283
HOV SERVICES
CUSTOMER SERVICE AGREEMENT
HOV SERVICES, (4HOV SERVICES") agrees to supply to Weld County ("CUSTOMER' located
at 314 N.11t Avenue Greeley CO 80831, and CUSTOMER agrees to purchase from HOV
SERVICES the document management software, scanners and scanning and conversion of
documents as may be outlined below.
The PARTIES agree to be bound by the following exhibits to this agreement, the terms and
conditions of which are hereby incorporated by reference:
A. STATEMENT OF WORK, attached hereto as EXHIBIT A and which fully and completely
describes the services (the 'Services') to be provided by HOV SERVICES to Customer.
B. PRICING SCHEDULE AND PAYMENT TERMS, attached hereto as EXHIBIT B and
which are based on the Services to be provided to CUSTOMER.
C. STANDARD TERMS AND CONDITIONS, attached hereto as EXHIBIT C and which
describe in detail all responsibilities, obligations, liabilities and warranties represented by
this agreement.
The Services to be provided to CUSTOMER under this Agreement are:
Project
Repetitive
X Both Project and Repetitive
In witness whereof, this agreement has been executed by a respective signatory of each party
whose signature appears below and S on the date of this Agreement duly authorized by all
necessary and required corporate action to execute this agreement.
SIGNATURES:
Weld County
315 N 11th Avenue
Greeley, CO. 80831
By:
William P. Garcia
Title: Chair
Date: 02/02/2009
HOV SERVICES
503 N. Main Street #205
Pueblo, CO. 81003
By: Xte., „offelsrue4---
Title: 5g. auounrt Cteuc lie,
Date: January 20, 2009
/brad .HOVbervices .
IBM Exceed Expectations
Conflict of Interest Statement
We represent and warrant that (1) we have not offered, and during the term of this evaluation or signed agreement will
not offer, to any employee of Weld County or member of such employees family any gift, gratuity or compensation in
any form; (2) to the best of our knowledge no employee of Weld County is employed by, or has any ownership interest
in, the respondent; (3) there is no understanding or agreement, expressed or implied, for the acquisition of any
ownership interest in the respondent by such employee (or family member); and (4) during the term of this evaluation
we will not employ any employees or family members of Weld County.
Statement of Confidentiality
This document contains confidential information provided for the sole purpose of pomading Weld County to evaluate
HOV SERVICES as a prime contractor for document and data conversion services of Sodal Services day forward
scanning. In consideration of receipt of this document, Weld County agrees to maintain such information as privileged
and confidential. Information contained within this document will not be conveyed in any manner (written,
electronically or verbally) to any person outside the group, who is not directly responsible for evaluation of its contents
for the stated purpose, except that there is no obligation to maintain the confidentiality of any information which was
known to Weld County prior to receipt of such information; or which becomes publicly known through no fault of Weld
County; or is received without obligation of confidentiality_ Upon written request, Weld County will return this
document and all copies to HOV SERVICES. Conditions and pridng in this proposal are veld for a period not to
exceed (120) days unless extended in writing.
HOV SERVICES Outsourcing Proposal
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TABLE OF CONTENTS
EXHIBIT A
4
BACKGROUND 4
OVERVIEW OF THE SCANNING PROCESS 4
HOV SERVICES SCOPE OF WORK. _ _ .. «« « .« «...«««..«««..- 4
INDEXING 4
DELIVERY 4
WELD COUNTY RESPONSIBILITIES 4
Electronic Information 4
HOV SERVICES RESPONSIBILII1ES 5
Pre -Preparation
5
HOV Services Responsibilities 5
Scanning 5
QUALITY CONTROL. PROCESS 5
Tracking System 5
Scanning —Attended Mode QC 5
Image Clean-up Processes 5
Post Scan Automated QC 6
Post Scan Visual QC 6
Post Release QC 6
Workflow Quality Control 6
Post Preparation 6
DOCUMENT IMAGE SPECIFICATIONS 6
SERVICE LEVELS 6
COMPANY OVERVIEW .......«.......«..«..............«.......«..«.. .....6
HOV SERVICES INDUSTRY FOCUS 7
EXHIBIT B - COST PROPOSAL _.._.« _««« «« 8
HOV SERVICES Outsourcing Proposal
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Exhibit A
Background
Description of business problem being solved
By converting these documents to an electronic form and providing access through the EMC Application Xtender
document management system, Weld County will be able to:
• Raise service levels by allowing for rapid retrieval of imaged data,
• Avoid future interfifing errors or loss of documents through rnisffing,
• Reduce costs by eliminating certain retrieval and copy functions and the need for on -site storage,
• Minimize the risk of damage or loss of hardcopy documents as a consequence of frequent retrieval or
disaster.
Overview of the scanning process
HOV SERVICES received information 10-29-08 and the following is a brief list of the specifics of the project.
1. Document preparation will be performed by HOV Services.
2. The primary documents will be scanned at 200 dpi into a multi -page non-proprietary Group 4 TIFF format.
They will then be easily imported into your EMC Application Xtender document management software.
3. The primary fields to index will be Household Number and Name. Additional document types within the
folders will be identified during indexing and are indicated individually in the pricing section of this proposal.
4. Weld County may provide an Excel or Access Database to aide In the indexing and eliminate the need for
manual indexing.
HOV SERVICES Scope of Work
HOV Services solution includes document preparation, botching, scanning, and indexing, all the while, adhering to
strict quality control standards. All services included in the solution will be performed at HOV Services facility located
at 503 N Main Street #205, Pueblo, Colorado 81003 during an 8 hour shift sometime between 7:00 AM and 5:00 PM,
Monday through Friday. No work will be performed outside of the United States. HOV SERVICES will extend service
hours to include weekends, if necessary.
Indexing
Indexing of the records will be done in a batch by cycle using the following attributes:
Indexing
Size
Source
Household Number
6 Digit
Keyed from file
Name
15 Alpha
Keyed from file
Document Identification
See Pricing Section
Keyed from file
Delivery
HOV SERVICES will deliver a hard disc with the images in single -page TIFF image with the index values in an ASCI
Text file. The images and values can then be imported into the EMO Application Xtender document management
system.
Weld County Responsibilities
Electronic Information
Weld County may also provide an electronic format of the additional index fields. HOV SERVICES requests that the
information be provided in MS Access, Oracle, Excel or an ASCII file for folders that are to be scanned.
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HOV Services Responsibilities
Pre -Preparation
1) Documents will be batched and placed back into a box or gurney in the same order as received.
2) Remove encumbrances such as: ACCO fasteners, paper clips, and staples.
3) All folded sheets will be unfolded and left flat in prepped file folder.
4) Documents determined to be too thin for proper capture will be photocopied onto 20Ib. bond paper to enable
capture.
5) Repair torn or damaged pages.
6) Tape torn leading edges.
7) If any documents have a landscape orientation, rotating left or rotating right may be provided as needed for data
capture purposes. •
HOV Services Responsibilities
Scanning
Upon completion of final Document pre -preparation and initial valdation, HOV SERVICES will perform the following
tasks:
1) Documents will be captured as a duplex page, and with blank -page detection and removal as part of the capture
process.
2) Begin the capture process.
3) Scan documents at 200dpi in Et 8 W and output to a non proprietary Tiff Group IV format.
4) Scan documents in "Batch Foment' as defined with the visual verification that all pages are being captured
property.
Quality Control Process
Tracking System
HOV SERVICES utilizes a national production tracking system named HOV SERVICES Operations Control System
(LOOS). Upon project implementation, HOV SERVICES will log all project tasks into LOOS, enabling the system to
track the work in process at any given time and monitor employee performance and quality commitment on every
conversion task.
LOCS also collects and reports information on customer specifications, pricing, job scheduling, job documentation,
labor productivity and utilization, and service biting. A series of reports are run daily that allow HOV SERVICES
management to analyze load factors and overall performance of the conversion process.
Scanning - Attended Mode QC
HOV Services scan operators are required to scan in 'Attended Mode" to assure that the best quality image is
rendered. In Attended Scanning Mode, the operator visually inspects images as they are captured, and the operator
will interrupt scanning if any issues that compromise image quality are detected such as double feeds, folded corners,
light images, dark images etc. Widle Attended Mode Scanning is slower than unattended scanning, it provides the first
line of image qualty control and avoids re scanning documents.
Image Clean-up Processes
Image processing includes de -skew, de-spedde, black border removal and sop. HOV SERVICES utilizes state-of-
the-art production scanners and image processing technologies to render the best possible electronic document
images comparable to the quality of the original documents.
HOV SERVICES has developed quality assurance checks throughout the document conversion process. The quality
control standards invoke precise scanner set-up end testing before the scanning process can begin for each job. Set-
up entails scanner adjustments to assure the accurate and complete capture of the documents.
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Post Scan Automated QC
After batches are released from the scan station, a series of automated quality control (QC) steps are run against the
batch. These steps are unique to every project, and they will be established between HOV SERVICES and Weld
County prior to the start of the project The quality control measures include several standard steps like corrupt
image, large image file size, etc.
Post Scan Visual QC
After the automated QC has completed, a QC operator will perform visual QC of images and data prior to sending the
batch to 'Release'. The Post Scan inspection is done for 100% of the images and data at the start of the job and
scaled back to a 10% random effort after all errors in the process have been corrected.
Post Release QC
Once images and data have been released from Scanning Workflow, they are written to an agreed upon transfer
media. An automated process is run against the batch to ensure all images and data have been written to media and
that none are corrupt.
Workflow Quality Control
HOV Services scanning and indexing worldlow is managed with Scanning Software. If discrepancies are found within
a batch in any step of the corwersion process, then the entire batch is directed to Quality Control Module. Images or
indexes that require re -work are re -processed to correct identified issues. After final acceptance by the Quality Control
Staff, images are moved into the formatting process.
Post Preparation
HOV SERVICES will prepare files, post scan and will perform the following tasks for each batch completed:
• The documents will be kept at the HOV Services Pueblo facility and upon written request from Weld County they
will be shredded or returned.
• Place batch t ansnittal sheets on top of batch and place rubber bend around batch as originally received.
• Box documents by 'Batch' as completed.
• Indicate Batch Numbers on outside end of box, for all batches contained within.
Document Image Specifications
The folders will be scanned at 200 dpi and stored in 11FF files. Following scanning, quality control and indexing, the
documents will be retumed to their original boxes. An associated, fielded flat file will contain index keys, an indication
of the page number within the document and a'panter" to the actual image tile.
Service Levels
HOV SERVICES utilizes a national production tracking system named HOV SERVICES Operations Control System
(LOGS). Upon project Imptementatton, an work Is logged Into LOGS, which tracts the work In process at any given
time and monitors employee performance and quality commitment on every conversion task.
LOCS also collects and reports information on customer specifications, pricing, job scheduling, job documentation,
labor productivity and utilization, and service billing. A series of reports are run daily that allow HOV SERVICES
management to analyze load factors and overall performance of the conversion process to ensure that turnaround
times and quality standards are met
Company Overview
HOV SERVICES enables organizations to secure their decisions and their future by improving the efficiency,
effectiveness and productivity of businesses and business processes through outsoumad services in industries that
are data and document -intensive where accuracy, privacy and security are top concerns.
HOV SERVICES is a leafing provider of Business Process Outsourcing (BPO) solutions and integrated data and
document management services that focuses on driving operational excellence via business process improvement.
Our integrated solutions and services leverage HOV Services extensive expertise in data management and capture,
online storage and retrieval, output processing and facilities Management Since our incorporation in 1985, HOV
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SERVICES has grown significantly. We currently operate in five countries worldwide, with more than 7,500
employees located in more than 35 offices and production centers. On a monthly basis, our operations support over
5,000 active customers by:
• Capturing 3.6 billion characters of data.
• Managing over 2.5 billion documents on-line through the company's proprietary, storage and retrieval
solution, document Man'.
• Capturing 75 million pages of information via scanning and microfilm.
• Printing and distributing more than 50 nation documents.
• HOV SERVICES also resells, implements and supports the industry leading technology that we utilize in our
facilities including Hyland Software, Kodak and Bell+Howefi production scanners, and Woks and Wilson film
scanners.
HOV Services Industry Focus
HOV Services focus on operational excellence through business process improvement provides organizations in
industries that are data, document and resource intensive with significant real-time financial and operational benefits.
HOV SERVICES further refines its market position by concentrating on industries that have accuracy, privacy and
security as top concerns. NOV Services solution offerings and services integrate state-of-the-art technology and
business process expertise to deliver significant identifiable cost savings to its customers.
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Exhibit B - Cost Proposal
Scanning Services
$201,000
Maintenance
$50,000
Total
$251,000
HOV SERVICES Outsourd g Proposal
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Scanning Services- Details
Weld County Scanning
Pricing Assumptions
Folders
Documents per folder
Page per document
Total documents
Total pages
Pages/box
Total boxes
Total pickups (Twice weekly) NA
Indexing - Keyed Fields
Household Number (Doubled Key)
Name
Total keystrokes per file
Total keystrokes (Single & House # Double keyed)
Conversion Summary
Total estimated pages
Percent duplex
Estimated image volume
Total bar code pages
Estimated keystrokes
Bar code
Count pages
38,591
1
75
38,591 38,591
2,894,355
2,500
1,158
100
Characters
8
15
23
Per folder Total/folder
1 8
1 15
23
887,602 1,196,333
2,894,355
10.0%
3,183,791
38,591
I 1,196,333
Document Conversion
Pick-up and delivery
Document prep (prepare for scan)
Bar code pages
B&W scan with blank page delete 200 dpi
Indexing (domestic)
Formatting for AppicalionXtender and direct import
Job set up, programming, conversion rules specifications
and project management
Document shredding (Priced per pound)
Total
Quantity
28
2,631
38,591
3,183,791
1,196,333
3,183,791
5
43,890
Unit Price Total
$174.50 $4,886
$18.50 $48,874
$0.030 $1,158
$0.036 $114,616
$0.009 $10,767
$0.003 $9,551
$75.00 $375
0.25 $10,973
$201,000
Optional Items
100% page verification (checking of every page to image)
2,894,355
0.045 $130,246
Conversion Timeline
Conversion set up and testing days
Conversion duration in working days
Conversion duration in weeks
Boxes per day
Pages per day
HOV SERVICES Outsourcing Proposal
Quantity Start date End date
1
250
50
8
40,950
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EXHIBIT C
TERMS AND CONDITIONS
1. Engagement. CUSTOMER engages NOV SERVICES to provide to CUSTOMER the services set forth on the
Statement of Work attached hereto as Exhibit A (the "Services"), and HOV SERVICES hereby accepts such
engagement for and in consideration of the compensation hereinafter provided, and agrees to perform the
Services in a professional, timely and workmanlike manner, consistent with industry standards, and in
accordance with and subject to the trims and conditions of this Agreement CUSTOMER hereby agrees that
during the term of this Agreement (including any renewal term), HOV SERVICES shall be the exdusive
provider to CUSTOMER of the type of services included in the Services.
2. Term.
(a) project serviceg The term of this Agreement shall begin on the date hereof and shall continue until all
Services are completed and the parties have satisfied all of their respective responsibilities and
obligations hereunder.
(b) Repetitive services The tens of this Agreement shall be for two years from the date of this
Agreement (the initial Term', and shall automatically extend for successive two year terms unless
written notice of termination is given by either party to the other not less than ninety (90) days prior to
the end of the then current term.
(c) Both Project and Reactive services. With respect to that portion of the Services that are Project
services, subparagraph (a) above shall apply. With respect to that portion of the Services that are
Repetitive services, subparagraph (b) above shall apply.
3. Btlino and Payment. CUSTOMER shall pay HOV SERVICES for the Services at the rates and charges set
forth in the Pricing Schedule and Payment Terns attached hereto as Exhibit B and as such schedule may be
amended from time to lime. HOV SERVICES may also vary the rates and charges set forth on Exhibit B to
reflect increases in its labor and material cost. All price increases will become effective thirty (30) days after
HOV SERVICES delivers written notice to CUSTOMER. In addition to the foregoing, the following policies
with respect to biting and payment shall apply:
(a) $0 is CUSTOMER's initial prepayment amount. If CUSTOMER is required to pay a set-up fee or
make another type of initial pre -payment or other assurance of payment, HOV SERVICES is not
obligated to begin providing the Services until such payment is received.
(b) Invoices are due and payable upon receipt If payment is not received by HOV SERVICES within
thirty (30)
days of the invoice date, any outstanding balances will bear a late payment fee at the higher rate of:
0) 1.5% per month, or Cu) the maximum rate allowed by law, until paid in full. HOV SERVICES
reserves the right to charge CUSTOMER the costs of collecting delinquent accounts, including filing
fees and attorney fees.
(c) CUSTOMER shall be billed for and shall be responsible for paying all federal, state, county, local or
other excise, sales or use taxes in connection with the provision of the Services.
(d) CUSTOMER and HOV SERVICES agree that time S of the essence for payment of all invoices. If
CUSTOMER disagrees with an invoice, CUSTOMER shall timely pay that portion of the invoiced
amount not in dispute and, within five (5) days of the invoice date, deliver written notice to HOV
SERVICES, specifying in reasonable detail the basis of CUSTOMER's dispute. HOV SERVICES and
CUSTOMER agree to meet in good faith to discuss a resolution to CUSTOMER'S dispute. If, within
ten (10) days of CUSTOMER'S dispute, the parties cannot agree, HOV SERVICES and CUSTOMER
shall have the right to resort to any legal or equitable remedies available to them under law in order to
finally resolve the dispute.
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4. Change in Scope. CUSTOMER hereby acknowledges that the rates and charges for the Services are based
upon the Statement of Work and, among other factors, the Assumptions set forth on Exhibit C attached
hereto. HOV SERVICES, therefore, reserves the right to change its rates and charges to CUSTOMER if the
Statement of Work or the Assumptions are materially cifferent than that which is attached to this Agreement.
In the event CUSTOMER requests any change in the Services after the date hereof, such change shall be
deemed a change to the Statement of Work attached hereto as Exhibit A.HOV SERVICES and CUSTOMER
agree that they will modify the Statement of Work to reflect such changes. If the changes impact labor,
materials, time or other direct or indirect costs, then new paces will be mutually determined by HOV
SERVICES and CUSTOMER. The parties agree that HOV SERVICES shall not be required to perform any
additional or modified Services until such time as the parties shall have executed and delivered to the other
written amendments to the Statement of Work and the Pricing Schedule and Payment Terms to reflect such
additional or modified Services.
5. Use of Service. HOV SERVICES conducts its business In compliance with applicable laws, rules and
regulations, with honesty and integrity and with a strong commitment to the highest standards of business
ethics. Therefore, NOV SERVICES is not responsible for, and CUSTOMER shall defend and indemnify HOV
SERVICES against: (a) CUSTOMER's use of the Services that may constitute a violation of the law or the
infringement of any third party's proprietary rights; (b) anything CUSTOMER may provide to HOV SERVICES
that HOV SERVICES incorporates into the Services; (c) CUSTOMER'S modification of the Services; and (d)
the combination, operation, or use of the Services with any product, data, or apparatus that HOV SERVICES
did not provide. Any claims of illegality or infringement shall not constitute valid justification for dispute of an
invoice. CUSTOMER is solely responsible for all Services used, allegedly illegal or otherwise, and for all
additional charges as may be associated with such usage.. If HOV SERVICES determines that an illegal or
infringement is or may be occurring, HOV SERVICES has the right; but not the obligation, to discontinue
providing any Service associated with such usage.
6. Confidentiality. HOV SERVICES hereby acknowledges that in performing the Services, it may be furnished or
otherwise be provided access to CUSTOMER'S confidential information, including trade secrets and other
proprietary information, all of which is clearly marked as confidential by CUSTOMER.HOV SERVICES hereby
agrees and covenants to hold in trust and confidence all such information during and following the term of this
Agreement; provided, however, that HOV SERVICES may disclose such confidential information if required
by any judicial or government request, requirement or order. Notwithstanding the provisions of this paragraph
6, HOV SERVICES shall be table to CUSTOMER only in the evert of a wind and material disclosure of
CUSTOMER'S confidential information or data, provided, that HOV Services lability shall be limited to an
amount not exceeding the purchase price piths Services provided hereunder.
(a) CUSTOMER agrees that CUSTOMER its officers, employees and agents shall maintain all information
disclosed to it by HOV SERVICES in connection with this Agreement in confidence and will not disclose
any such information to anyone else, nor use it for their own benefit or the benefit of others without the
written consent of HOV SERVICES; provided, however, that the CUSTOMER shall have the right to use
any such information for its own necessary internal purpose while this Agreement is in effect.
(b) CUSTOMER represents and warrants that it has the right to disclose any information provided to HOV
SERVICES in furtherance of the purpose described herein or any Statement of Work, without violating
any agreement with or right of any other person or company or violating any law, rule or regulation.
Confidential Information hereunder may include Confidential Information of a third party, provided that the
third party has authorized such disclosure, and in such event this Agreement shall apply equally to such
Confidential Information and shell inure to the benefit of such third party.
(c) HOV SERVICES agrees that it shall maintain the confidentiality of all information provided HOV
SERVICES by CUSTOMER. Such information shall be used only for the intended purpose and shall not
be disclosed to other parties without the written consent of CUSTOMER. Further, all data files shall be
returned to CUSTOMER upon completion of the specific project for which they were intended. However,
HOV SERVICES shall have the right to use any such information for its own necessary internal purposes.
7. Title to Work Product. HOV SERVICES and CUSTOMER hereby agree that all deliverables and other work
produced exclusively for CUSTOMER pursuant to the terms of this Agreement (the Intellectual Property"),
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shall be the property of CUSTOMER.CUSTOMER will retain exclusive right and title in and to said Intellectual
Property. Notwithstanding the foregoing. CUSTOMER hereby grants to HOV SERVICES, and HOV
SERVICES reserves a license to use the Intellectual Property for its own benefit and for the benefit of third
parties in connection with the conduct of its business. HOV SERVICES agrees not to resell the images that
are converted during this project to any other group.
(a) Utilities. CUSTOMER acknowledges that from lime -to -time HOV SERVICES develops certain reusable
processes, techniques, information, training material and documentation that are incorporated into its
Services that are: (a) not pursuant to this Agreement or (b) under this Agreement which (I) are designed as
utilities to HOV SERVICES proprietary software and services, G) are not specifically requested by
CUSTOMER pursuant to a Statement of Work, and Qin do not contain CUSTOMER proprietary materials or
Confidential Information (hereinafter oollectivey referred to as 'Ufilifies).Utfibes are HOV Services
proprietary infommtion and Intellectual Property. It is understood that some of the Utilities may be
incorporated into the Services provided by HOV SERVICES for CUSTOMER, and that nothing in this
Agreement or any Statement of Work shall be deemed to transfer or assign ownership of the Utiities and
related Intellectual Property Rights from HOV SERVICES to CUSTOMER.
(b) Excluded Inventions. HOV SERVICES will not be required to assign to CUSTOMER any business
concept, invention, discovery, innovation or improvement that HOV SERVICES developed on its own time
and without the use of any CUSTOMER equipment, supplies, facility or Confidential Information (the
"Excluded Inventions").
8. Risk of Loss and Insurance. CUSTOMER acknowledges that it has unique knowledge of the value of any
electronic data processing media, papers or other tangible personal property furnished by CUSTOMER to
HOV SERVICES in connection with the provision of the Services (the "CUSTOMER Property").CUSTOMER
hereby agrees and represents to HOV SERVICES that it has and shall maintain policies of insurance in
amounts necessary or required to insure against any loss of or damage to the CUSTOMER Property while the
same is within the cam, custody and control of HOV SERVICES.CUSTOMER agrees that HOV SERVICES
shall not be responsible for nor liable for any damage to or loss of CUSTOMER Property.
9. Warranties: Limitation of Liability: and Remedies. HOV SERVICES will provide the Services to CUSTOMER
according to industry standards. HOV SERVICES MAKES NO OTHER WARRANTY, EXPRESS OR
IMPLIED, WITH RESPECT TO THE SERVICES PROVIDED HEREUNDER, AND EXPRESSLY DISCLAIMS
ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE OR
FUNCTION. As a material inducement for HOV SERVICES to provide the Services at the rates and charges
stated herein, CUSTOMER agrees that, in no went, shall HOV SERVICES be liable for (a) any loss, expense
or damage associated with CUSTOMER's or a third party's loss of revenue, profits, savings business or
goodwill or (b) any indirect, exemplary, proximate, consequential or incidental damages and expenses of any
nature relating to this Agreement or the Services. Customer's sole and exclusive remedy in the case of a
breach of this Agreement by HOV SERVICES shall be a refund of the price paid for those Services not
provided in accordance with the terms of this Agreement as a result of HOV Services breach.
10. Termination. This Agreement may be temunated prior to the end of the Initial Term or any renewal term
thereof only (a) by mutual agreement of CUSTOMER and HOV SERVICES, (b) in the event CUSTOMER
materially breaches this Agreement, by tlOV SERVICES upon thirty (30) days written notice to CUSTOMER
provided that CUSTOMER has not, within such thirty day period, cured such breath, or (c) in the event HOV
SERVICES materially breathes this Agreement, by CUSTOMER upon thirty (30) days written notice to HOV
SERVICES provided that HOV SERVICES has not within such thirty day period, cured such breach. If either
party files suit as a result of a material breach, the prevailing party shall be entitled to recover its reasonable
attomey's fees as fixed by the court or arbitrator. The parties agree that the minimum monthly charge, if any,
provided in this Agreement shall not be used as the measure of damages.
11. Utilities - Excluded Inventions. CUSTOMER acknowledges that from lime -to -time HOV SERVICES develops
certain reusable processes, techniques. information, training material and documentation that are
incorporated into its Services that am: (a) not pursuant to this Agreement or (b) under this Agreement which
(I) are designed as utilities to HOV SERVICES proprietary software and services, (ii) are not specifically
requested by CUSTOMER pursuant to a Statement of Work, and (w) do not contain CUSTOMER proprietary
materials or Confidential Information (hereinafter collectively referred to as 'UtifrtiesD_Utilities are HOV
Services proprietary information and Intellectual Property. It is understood that some of the Utilities may be
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incorporated into the Services provided by HOV SERVICES for CUSTOMER, and that nothing in this
Agreement or any Statement of Work shall be deemed to transfer or assign ownership of the Utilities and
related Intellectual Property Rights from HOV SERVICES to CUSTOMER. HOV SERVICES will not be
required to assign to CUSTOMER any business concept, invention, discovery, innovation or improvement that
HOV SERVICES developed on its own time and without the use of any Client equipment, supplies, facility or
Confidential Information (the 'Excluded Inventions").
12. Force Maieure. Other than with respect to failure to make payments due hereunder, neither party shall be
liable under this Agreement for delays, failure to perform, damages, losses or destruction, or malfunction of
any equipment, or any consequence thereof, caused or occasioned by, or due to fire, earthquake, flood,
water, the elements, labor disputes or shortages, utility curtailments, power failures, explosions, civil
disturbances, governmental actions, shortages of equipment or stipples, unavailability of transportation, acts
or omissions of third parties, or any other cause beyond their reasonable control, provided that the party affect
by such event shall imrrediately begin or resume performance as soon as practicable after the event has
been abated.
CUSTOMER agrees that, without Uniting the generality thereof, the lineations of liability and exclusivity of
remedies set forth in paragraph 9 of this agreement, shall apply, in all respects, to any tosses arising from a
Year 2000 related "computer date failure. 'As used herein, the term "computer date failure' means the failure
• of any of HOV Services computer systems, programs, software, internal timers, or the like (a) to properly
handle the dates of calendar yew 1999 or subsequent years, or (b) to be compatible with any other system,
program, software, internal timer, or the like, with respect to the handling of dates of calendar year 1999 or
subsequent years.
14. Notices. All notices, requests, demands and other communications under this Agreement shall be in writing
and shall be effective and deemed to have been received (a) when delivered in person, (b) 5 days after
having been mailed by certified or registered United States mail, postage prepaid, return receipt requested, or
(c) the next business day after having been sent by a nationally recognized overnight mail or courier service,
return receipt requested. Notices shall be sent to the parties at their respective addresses appearing on the
signature page to this Agreement.
15. Binding Effect. This Agreement shall be binding upon and inure to the benefit of and be enforceable by the
parties to this Agreement and their respective successors and assigns.
16. Entire Agreement. The parties agree to be bound by the terms of this Agreement and further agree that this
Agreement is the complete and exclusive statement of agreement between the parties. This Agreement
supersedes all agreements, proposals, oral or written, and other communications between the parties relating
to the subject matter of this Agreement No amendment or modification to this Agreement and no
waiver of any provision shall be veld unless in writing and signed by both parties. If CUSTOMER issues a
purchase order or memorandum or other instrument covering the Services provided herein, such purchase
order, memorandum or other instrument shall be for CUSTOMER'S internal purposes only, and any and all
terns and conditions contained therein, whether printed or written, shall not vary, modify or add to the terns
and conditions of this Agreement
17. Goveminci Law. The validity, construction and effect of this Agreement shall be governed by the law of the
state within which the Services are to be provided. In the event Services are to be provided in more than one
state, the law of the State of Delaware shall govern.
18. Assianatitity. This Agreement shall be binding upon and shall inure to the benefit of the parties, their
successors and assigns, including without limitation, any successor to either party resulting by reason of
corporate merger or consolidation.
19. Severabihty. If any provision or paragraph of this Agreement is held invalid, such invalidity shall not affect
other provisions of this Agreement
20. Non Waiver. No waiver or failure to exercise any option, eight or privilege wader the terra of this Agreement
on any occasion or occasions shall be construed to be a waiver of the same or any other option, right or
privilege on any other occasion.
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21. NON -RECRUITMENT AND NON -HIRE: RIGHT TO HIRE. Both Parties recognize that each Party and their
affiliated companies have made substantial efforts and incurred substantial expense to recruit, employ and
train personnel with whom each Party and/or its employees may have contact. CUSTOMER shall riot, without
HOV Services prior written consent, actively recruit and employ any person who is or was employed by HOV
SERVICES and/or any of its affiliated companies, so long as this Agreement is in effect and for a period of
one year following its termination. HOV SERVICES shall not,'without COMPANY's consent, actively recruit
and employ a COMPANY employee during the term of this Agreement and for a period of one (1) year
following termination of this Agreement.
The following activities will not constitute 'active recruitment":
(a) a party receives an unsolicited resume for an employee of the other Party, either directly from the
employee or from an employment agency or recruiter, and thereafter interviews or negotiates
employment with such employee. Remands shall be unsolicited unless a party specifically identifies a
particular employee by name in its request for resumes; or
(b) a party places a recruiting advertisement cirected at the general public and thereafter interviews or
negotiates employment with an employee responding to such advertisement; or
(c) a party discusses employment with an employee of the other Patty prior to the Effective Date of this
Agreement and thereafter interviews or negotiates employment with such employee. An affidavit by
such employee to the effect that employment was actually discussed on a certain date prior to the
Effective Date shall be conclusive proof of this fact
In the event of a breach of the covenant contained above, the injured party shall have the right
To take any one or more of the following actions, concurrently or successively:
(1)Immediately terminate this Agreement upon written notice;
(2)Seek an injunction against further violations of this Section;
(3)Pursue whatever other remedes are available under this Agreement or at law and equity.
In the event of dissolution or cessation of the business of either party such party waives all rights in this Section and
the other party may actively recruit and employ employees of such party.
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