HomeMy WebLinkAbout20053000.tiff DATAPTOSO PRODUCTION AGREEMENT
BILLING SOLUTIONS Last updated: 10.4.2005
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This Production Agreement (Agreement) is made and entered into as of the 5th day of October, 2005
(Effective Date), by and between DataProse, Inc.,a California Corporation(DataProse), and Weld County,
Colorado, by and through it Board of County Commissioners (Client). In consideration of the mutual
promises and benefits contained herein, the parties hereby agree as follows:
ARTICLE 1 SCOPE OF PRODUCTION AGREEMENT. DataProse agrees to provide to Client services
defined in Schedule 1.0, and Client agrees that DataProse shall be its exclusive provider of these goods
and/or services during the term of this Agreement. Estimated print volume: 145,000 tax statements.
ARTICLE 2 COMPENSATION. In full and complete compensation for all goods and/or services
provided by DataProse hereunder, Client agrees to pay DataProse according to the rates set forth in
Schedule 1.0. DataProse will provide an invoice to Client after each production run consisting of the fees,
as outlined in Schedule 1.0 and postage used. Invoices are due upon receipt and will be considered past
due if not paid within 30 days. A monthly late charge will be assessed on statements not paid within thirty
(30) days. The late payment charge will be 1-1/2% per month applied to the invoice amount unpaid (30)
thirty days after billing to Client. The prices charged by DataProse to Client for the services listed in
Schedule 1.0 will not be increased for a period of 24 months from the Effective Date of this Agreement
("Pricing Period"). All DataProse prices are subject to increase following this initial Pricing Period or any
subsequent Pricing Period, and upon written notice to Client. The rate of any negotiated price increase
shall not exceed 15%at the completion of any pricing period. In the event Client cancels the Agreement as
allowed under the provisions of this Agreement, then all services rendered between the cancellation
notification date and the effective date of the cancellation, will be COD.
ARTICLE 3 TERM. The initial term of this Agreement shall commence as of the Effective Date, and
shall continue for one (1)year unless terminated earlier in accordance with provisions found elsewhere in
this Agreement. This Agreement shall renew itself for successive one(1)year terms unless written notice of
cancellation is received by one party from the other if a party exercises its right to terminate the Agreement
at the end of the initial term or at the end of any succeeding one (1)year renewal term(s)by sending written
notice of non-renewal to the other party no later than thirty (30) days before the expiration of the current
term.
ARTICLE 4 POSTAGE. Client shall deposit in advance with DataProse the initial sum specified on
Schedule 2.0 as the permanent postage deposit. The amount required to be deposited with DataProse may
be changed by DataProse on a periodic basis based upon changes in Client's volume, postage usage, or
payment history. Client will be notified in writing and in advance if the deposit is changed. Upon termination
of this Agreement, DataProse shall return the deposit amount to Client after payment for all Services and
postage has been paid by the Client. If this Agreement is terminated due to default of Client, DataProse
may apply any of Client's funds it holds against any sum owed by Client to DataProse upon termination of
this Agreement. IF CLIENT FAILS TO MAINTAIN THE DEPOSIT AT THE ADJUSTED LEVELS, OR IF
CLIENT FAILS TO MAINTAIN CURRENT STATUS OF ALL INVOICES AS DESCRIBED IN ARTICLE 2,
DATAPROSE MAY IMMEDIATELY SUSPEND ITS PERFORMANCE UNDER THIS AGREEMENT AND
WILL HOLD CUSTOMER'S MAIL UNTIL THE DEPOSIT IS RECEIVED.
ARTICLE 5 EXPENSES. When Client has approved the amount of such costs and expenses in
advance and in writing, Client will reimburse DataProse for costs and expenses associated with the
performance of services for Client, such as cost of travel, expenses associated with travel,freight, delivery
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DATA7OSC PRODUCTION AGREEMENT
BILLING SOLUTIONS Last updated:10.4.2005
Smarter Statements ie) Better Results
service and other required supplies in connection with providing the DataProse services associated with this
Agreement; however, it is the understanding of the parties that the$.14 per item (.04 for non-mailed items)
is intended to be the "all-in" costs unless specifically requested by Client.
ARTICLE 6 TERMINATION. Client or DataProse may terminate this Agreement for an event of default
defined below if such default remains uncured (30)thirty days after written notice of the default has been
received from the party declaring the default.
(1) Failure of Client to pay for all goods and/or services as provided in this Agreement. In
addition to other remedies provided by this Agreement and pursuant to law, DataProse
has the right to withhold production and mailing of any further production cycles until
Client's account is brought current.
(2) Any other breach by Client or DataProse of a term or condition of this Agreement.
(3) Bankruptcy or insolvency of either party.
(4) Non-Appropriation of funds by Client.
If DataProse terminates this Agreement in accordance with Article 6 herein, or the Client terminates this
Agreement for any reason other than those specified in Article 6 prior to satisfying its Minimum
Commitment, the Client agrees that it shall be liable to DataProse for liquidated damages ("Liquidated
Damages")for its early termination, it being understood and agreed to by the parties that the measure of
actual damages noted would be difficult to determine. The Liquidated Damages shall be an amount equal
to the product of(a)the Minimum Commitment and (b)the sum of the number of months remaining in the
current term of the Agreement and the number of months that any invoices remain unpaid by the Client.
ARTICLE 7 FORCE MAJEURE. Neither party shall be responsible for delays or failures in
performance resulting from acts or occurrences beyond the reasonable control of such party, including,
without limitation: fire, explosion, power failure, flood, earthquake or other act of God; war, revolution, civil
commotion,terrorism,or acts of public enemies; any law,order,regulation,ordinance,or requirement of any
government or legal body or any representative of any such government or legal body; or labor unrest,
including without limitation, strikes,slowdowns, picketing or boycotts. In such event,the party affected shall
be excused from such performance (other than any obligation to pay money) on a day-to-day basis to the
extent of such interference (and the other party shall likewise be excused from performance of its
obligations on a day-to-day basis to the extent such party's obligations relate to the performance so
interfered with).
ARTICLE 8 CONFIDENTIALITY. DataProse agrees that any and all data, reports and documentation
supplied by Client or its affiliates or third parties on Client's behalf, which are confidential shall be, subject
only to the disclosure required for the performance of DataProse's obligations hereunder, held in strict
confidence and shall not be disclosed or otherwise disseminated by DataProse without the consent of
Client.
ARTICLE 9 INDEMNIFICATION. Client agrees to indemnify and hold DataProse harmless for any and
all claims from any person,firm,or entity whatsoever that may arise in connection with Client's supplying to
DataProse the data, reports or other documentation necessary to perform its duties under this Agreement,
except that such indemnification shall not extend to any claims that result from action by DataProse, its
officers, employees or agents or anyone acting on behalf of DataProse if such action is in violation of one or
more terms of this Agreement.
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DATAAT'OSC PRODUCTION AGREEMENT
BILLING SOLUTIONS Last updated: 10.4.2005
Smatter Statements It Better Results
ARTICLE 10 WARRANTIES. DataProse shall provide all goods and/or services in a good and first class
workmanlike manner in accordance with the terms specifically set forth in Schedule 1.0. The parties hereto
agree that this Agreement is only for the production of goods and/or services.
THIS WARRANTY CONSTITUTES THE ONLY WARRANTY WITH RESPECT TO THE GOODS AND
SERVICES TO BE PROVIDED TO CLIENT. THE STATED WARRANTY IS IN LIEU OF ALL OTHER
WARRANTIES, WRITTEN OR ORAL, STATUTORY, EXPRESS OR IMPLIED, INCLUDING, WITHOUT
LIMITATION, THE WARRANTY OF MERCHANTABILITY AND THE WARRANTY OF FITNESS FOR
PARTICULAR PURPOSE.
ARTICLE 11 LIMITATION OF LIABILITY. The liability of DataProse with respect to any failure to
provide the goods and/or services as required under this Agreement shall in each case be limited to the
compensation paid to DataProse for the defective goods or services. DATAPROSE IS NOT LIABLE FOR
INCIDENTAL OR CONSEQUENTIAL DAMAGES, INCLUDING LOST PROFIT OR INCOME, even if
DataProse has been advised of the possibility of such loss or damage. This provision will not be affected by
DataProse's failure to correct any defect or replace any defective work product to Client's satisfaction.
Client has accepted this restriction on its right to recover consequential damages as a part of its bargain
with DataProse. Client acknowledges what DataProse charges for its goods and services would be higher if
DataProse were required to bear responsibility for Client's damages.
ARTICLE 12 GOVERNING LAW AND JURISDICTION. This Agreement shall be governed and
interpreted in accordance with the laws of the state of California, without giving effect to the principles of
choice of laws of such state. The parties each consent to the jurisdiction and venue of the Superior Court of
Ventura County, Ventura, California, as to any matters initiated in state court, and to the courts of the
Central District of California for any matters initiated in federal court.
ARTICLE 13 SEVERABILITY. If a court or an arbitrator of competent jurisdiction holds any provision of
this agreement to be illegal, unenforceable, or invalid in whole or in part for any reason, the validity and
enforceability of the remaining provisions, or portions of them, will not be affected.
ARTICLE 14 WAIVER; MODIFICATION OF AGREEMENT. No waiver, amendment or modification of
any of the terms of this Agreement shall be valid unless in writing and signed by authorized representatives
of both parties hereto. Failure by either party to enforce any rights under this Agreement shall not be
construed as a waiver of such rights, nor shall a waiver by either party in one or more instances be
construed as constituting a continuing waiver or as a waiver in other instances.
ARTICLE 15 NOTICE. All notices must be in writing and if not personally delivered, be sent by facsimile
or by first class mail, or by electronic mail. Notices will be effective on the day when delivered,addressed to
the other party at the address show in this Agreement. Either party may change the address to which
notices are to be sent by giving notice of such a change to the other party. Addresses for purpose of giving
notice are as follows:
If to DataProse: If to Client:
DataProse, Inc. Weld County Treasurer
1451 North Rice Avenue, Suite A 1400 N. 17th Ave, PO Box 458
Oxnard, CA 93030 Greeley, CO 80632
Attention: Chief Executive Officer Don Mueller, Treasurer
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DATAPTOSC PRODUCTION AGREEMENT
BILLING SOLUTIONS Last updated:10.4.2005
Smarter Statements !01 Better Results
ARTICLE 16 ENTIRE AGREEMENT. This Agreement and its exhibits constitute the final,complete, and
exclusive statement of the terms of the agreement between the parties pertaining to the production of goods
and services for Client by DataProse, and supercedes all prior and contemporaneous understandings or
agreements of the parties. No party has been induced to enter into this Agreement by, nor is any party
relying on, any representation or warranty outside those expressly set forth in this Agreement.
ARTICLE 17 ATTORNEY FEES. In the event of any claim, dispute or controversy arising out of or
relating to this Agreement, including an action for declaratory relief, the prevailing party in such action or
proceeding shall be entitled to recover its court costs and reasonable out-of-pocket expenses not limited to
taxable costs, including but not limited to phone calls, photocopies, expert witness, travel, etc., and
reasonable attorney fees to be fixed by the court. Such recovery shall include court costs, out-of-pocket
expenses and attorney fees on appeal, if any. The court shall determine who is the prevailing party,
whether or not the dispute or controversy proceeds to final judgment. If either party is reasonably required
to incur such out-of-pocket expenses and attorney fees as a result of any claim arising out of or concerning
this Agreement or any right or obligation derived hereunder, then the prevailing party shall be entitled to
recover such reasonable out-of-pocket expenses and attorney fees whether or not action is filed.
ARTICLE 18 SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon and shall inure to
the benefit of the successors and assigns of the parties hereto. The parties hereto execute this Agreement
through their duly authorized officers, as of the day and year first written above.
ARTICLE 19 NO WAIVER OF IMMUNITIES. No portion of this Agreement shall be deemed to constitute
a waiver of any immunities the parties or their officers or employees may possess, nor shall any portion of
this Agreement be deemed to have created a duty of care which did not previously exist with respect to any
person not a party to this Agreement.
ARTICLE 20 NO THIRD PARTY BENEFICIARY. It is expressly understood and agreed that the
enforcement of the terms and conditions of this Agreement, and all rights of action relating to such
enforcement, shall be strictly reserved to the undersigned parties and nothing in this Agreement shall give
or allow any claim or right of action whatsoever by any other person not included in this Agreement. It is the
express intention of the undersigned parties that any entity other than the undersigned parties receiving
services or benefits under this Agreement shall be an incidental beneficiary only.
DATAPROSE, INC.: CLIENT: /
By j r� �"`7" / S By: 'LC; r J
lenn A. Carter, resident
Date: Of h 3d We id I
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PRODUCTION AGREEMENT
BILLING SOLUTIONS Last updated: 10.4.2005
Smarter Statements t Better Results
Schedule 1.0 — Fees for Goods & Services
Paper Bill (Includes: data processing & simplex, 2-color, laser
imaging, 8 '/ x 14 double perforated form, folding, inserting, # 10
double window env, #9 printed return env (2/1) presorting and
delivery to USPS) $0.14 ** Per Bill
Search & ViewBill (Includes: data processing, pdf creation,
search & access capabilities & hosting of pdf files for 3 months
from creation date) $.01 Per Bill
Additional Search & ViewBill Storage beyond 3 months (As
requested by client) $.005 Per Bill
Oversized PDF Surcharge (Group E only) $0.0015 Per impression
ViewBill (Includes: data processing, pdf creation) $.01 Per Bill
Per
ViewBill Transmission (Includes: ftp transmission to client site OR Transmission/CDR
files copied to CDROM) $150.00 OM
Additional Disks (If more than one CDROM disk is required for Per Additional
ViewBill Transmission (Described above) $10.00 CDROM
Per Address
NCOALink—Automated address update service $0.50 Correction
Other
Additional Impressions $.03 Per Impression
Bill Suppression (data processing only— Group Y & Z) $0.05 Per Bill
Oversized Surcharge (8-99 page bills—Group C) $0.20 Per Bill
Oversized Surcharge (100+ page bills—Group D & E) $4.00 Per Bill
Additional Inserts $.01 Per Insert
Technical Services (including additional set-up beyond standard,
formatting or custom reports, conditional logic & insert/forms
composition) $100.00 Per Hour
Freight, Courier&Air Delivery Cost Per Request
Postage (1 oz.) estimate $0.278 Per Bill
Schedule 2.0 —Permanent Postage Deposit
Postage Deposit-At time of one-time mailing of tax notices $40,310 $0.278 x 145,000
Schedule 3.0 —Performance Guarantee
To be determined between DataProse and Client. DataProse requires enough time to allow for live
sample review and approvals. The postage deposit is due prior to delivery of the tax bills to the USPS.
** This is an all-inclusive cost unless agreed to in writing by Client.
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DATA rOS2' PRODUCTION AGREEMENT
BILLING SOLUTIONS Last updated: 10.4,2005
Smarter Statements le). Better Results
Schedule 4.0—Glossary of Terms
Impression Laser Imaging of one side of one piece of paper. Each physical piece of paper can contain
two(2)impressions.
USPS United States Postal Service
Laser Imaging The process where the application of dry toner(ink)is electro statically applied and bonded
to a piece of paper.
Simplex Laser Imaging of one(1)side of a piece of paper only.
Duplex Laser Imaging of both (2)sides of a piece of paper.
OE Outer Envelope—This envelope is used as the carrier mechanism for all information
contained in a package to be mailed.
RE Reply Envelope—This envelope is usually utilized by a customer to return
information/payment requested by on organization.
Presorting The act of organizing mail according to the rules and regulations defined by the USPS in
order to achieve lower postage rates and increase deliverability of mail.
Business Day Any day in which the USPS as well as the U.S. Federal Reserve are open for business.
U.S.federal holiday All Holidays as defined by the U.S. Federal Reserve.
24x7 24 hours a day, 7 days a week.
Additional Inserts Any item requested to be placed into the mail container above and beyond(a)the bill and (b)
the RE .
Container One complete piece of mail packaged into one OE.
Electronic Transmission The act of sending data via DataProse online utility, FTP or Modem
Bill Data and other information pertaining to one(1)account number and usually in reference to
one customer
Group The term used by DataProse to define how bills are gathered &produced in order to
maximize production capabilities. These groups are defined as follows:
Group A—1 ounce bills
Group B—2 ounce bills
Group C—8-99 page bills
Group D— 100-499 page bills
Group E—500+page bills
Group I—International bills
Group P—Pull bills(Pulled and returned to PM for further action)
Group X—Hold bills (combined and sent back to client)
Group Y—Online only bills(Suppress from print only)
Group Z—Suppress all
Suppress or Suppression The act of excluding records or bills(based on client defined criteria)that have been
received in the input data stream received from the client
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