Exhibit 10.2
SERVICES
AGREEMENT
THIS VENDOR
SERVICES AGREEMENT (the
“ Agreement ”) is made and entered into as of
the 15th day of July, 2008 (the “ Effective Date
”), between United Marketing Solutions, Inc., a Virginia
Corporation whose address is 7644 Dynatech Court,
Springfield VA, 22153 (“ CUSTOMER ”)
and ColorFX, LLC (a division of Rock Communications), an
Iowa Corporation, with offices at 10776 Aurora Avenue, Urbandale,
Iowa 50322 (" VENDOR ”). This Agreement, as
may be amended from time to time, together with each Statement of
Work (“ SOW ”) executed between the parties,
forms the agreement among the parties relating to the provision of
professional services as contemplated herein.
In consideration of the mutual promises
contained herein, the parties agree as follows:
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Services
Provided by VENDOR. During the term of this Agreement,
VENDOR agrees to provide certain turnkey printing services to
CUSTOMER, and/or for the benefit of CUSTOMER’s clients,
partners or affiliates, (the “ Services ”) which
may be authorized by CUSTOMER from time to time, by the execution
of SOWs as described in this Agreement. VENDOR shall not be
obligated to provide any service and CUSTOMER shall not be
obligated to pay for any service until an SOW or other written
authorization has been executed in accordance with this Agreement.
Furthermore, CUSTOMER shall not be obligated to pay for any service
until an acceptable delivery is made in accord with the
requirements of this Agreement, including, without limitation, the
Warranty of Service set forth hereinbelow. It is understood by the
parties that delivery by VENDOR shall be made to a independent
contractor for CUSTOMER, Rees Associates, or other designated third
parties.
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Warranty
of Service . VENDOR warrants that all materials
produced and Services provided under this Agreement (a) will be of
original development and will not infringe or violate any patent,
copyright, trade secret, trademark, or other third party
intellectual property rights; (b) will be performed in accordance
with applicable laws and regulations; (c) will be free from defects
in materials and faulty workmanship and conform to all
specifications and the disclosed purposes of CUSTOMER and meet all
specifications as they are contained in an SOW; (d) will be
provided by VENDOR’s personnel having the appropriate level
of skills and training; and (e) will be performed with care, skill
and diligence, consistent with, or above applicable professional
standards, in accordance with generally accepted industry
standards.
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Point of
Contact. Each party shall designate a
principal point of contact between the parties for all matters
relating to services provided under a particular SOW. A
party may designate a new point of contact by written notice to the
other party.
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1.4Time is of
the essence of VENDOR’s obligations hereunder. Deliveries
and/or performance are to occur as specified by CUSTOMER. If VENDOR
fails to meet any milestone date and/or schedule, CUSTOMER, without
limiting its other rights or remedies as specified herein, may
direct expedited routing and any excess costs incurred thereby
shall be paid for by VENDOR. CUSTOMER shall not be liable for
VENDOR’s commitments or production arrangements in excess to
those of the CUSTOMER or in advance of the time necessary to meet
CUSTOMER’s schedule.
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Issuance
of Statements of Work. All SOWs or other forms of written
authorization executed between the parties shall be subject to the
terms and conditions set forth in this Agreement. Each
SOW shall specify the scope and schedule of Printing Services to be
performed by VENDOR for CUSTOMER and the applicable fees, which is
attached hereto and incorporated herein by reference as Schedule
“1”. In the absence of express written
agreement by the parties otherwise contained in a SOW (as set forth
hereinbelow), in the event any provision contained in an SOW
conflicts with any term, condition, or clause in this Services
Agreement, the provisions of this Services Agreement shall control.
In the event that the parties desire that the provisions of the SOW
control, such SOW shall express that the conflict exists, is
recognized by the parties and that the SOW shall control for that
provision and that SOW only. CUSTOMER may, at any time,
upon notice to VENDOR, request changes to an SOW. VENDOR
will provide CUSTOMER with an estimate of the impact, if any of
such requested changes on the project schedule and
resources. If the parties mutually agree to such
changes, a written description of the agreed change will be
prepared and executed between the parties and the relevant SOW will
be amended accordingly.
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Activation of Statements of Work.
An SOW under this
Agreement shall become effective and binding once executed by both
CUSTOMER and VENDOR.
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Termination of Statements of
Work. CUSTOMER may at any time terminate
the Services pursuant to an SOW. Upon termination of an
SOW, VENDOR shall promptly turn over to CUSTOMER all documentation,
programs, reports, data, materials, and work in process produced
under such SOW and which was generated during the performance of
the terminated SOW.
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COMPENSATION
& PAYMENT. VENDOR agrees to provide services to CUSTOMER,
and CUSTOMER agrees to accept services and pay VENDOR for same as
follows:
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Fees,
Rates & Payment Terms. The fees, rates, and payment terms
for the services provided by the VENDOR shall be expressly set
forth in each SOW.
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Invoices
and Payments. For all services, fees, expenses,
amounts owed and reimbursements described in this Agreement,
including any SOW, unless otherwise provided for in an SOW, VENDOR
shall prepare and submit invoices to CUSTOMER which shall include
reasonably detailed descriptions of the services performed during
the period. Invoices shall be submitted on a monthly
basis for Services and materials delivered pursuant to Services
accepted by CUSTOMER and shall describe the Services performed, and
such other information relating to the Services as CUSTOMER may
reasonably request. CUSTOMER will pay to VENDOR the
invoiced amounts within [redacted] days of receipt of the
invoice.
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Records. Each party will maintain complete
and accurate records relating to any amounts invoiced or paid in
connection with the services provided under this
Agreement.
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Term. This Agreement will commence on the
Effective Date and will remain in full force and effect until July
31, 2013 or terminated as provided in this Section
4.
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Termination due to
Breach. In the event either party materially breaches
this Agreement, the party not in breach may terminate this
Agreement by giving written notice to the breaching party in accord
with the agreements set forth below.
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If the
breach/breaches are not cured within Twenty (20) days after written
notice is given to the breaching party specifying the breach, the
party not in breach may terminate this Agreement at the conclusion
of the twenty day period and thereafter pursue any and all remedies
subject to the provisions of this Agreement.
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In the event
that the breach/breaches cannot reasonably be cured, the party not
in breach may terminate this Agreement immediately by giving
written notice to the breaching party and thereafter pursue any and
all remedies subject to the provisions of this
Agreement.
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Termination for Insolvency.
Either party may
terminate this Agreement upon written notice to the other party in
the event such other party (i) seeks reorganization or release
under the U.S. Bankruptcy Code, (ii) seeks the
appointment of a trustee, receiver or custodian, (iii) becomes the
subject of a proceeding seeking the liquidation, winding-up,
dissolution, reorganization or the like of such party, and such
proceeding is not dismissed within sixty (60) days of the
commencement thereof, (iv) makes an assignment for the benefit of
creditors, or (v) has a substantial part of such party's property
become subject to any levy, seizure, assignment, application or
sale for or by any creditor or government agency.
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Termination for Convenience.
CUSTOMER or VENDOR
may terminate this Services Agreement for convenience by a
unilateral notice that provides one hundred eighty (180)
days’ prior written notice of the effective date of the
termination to the other party. The parties may otherwise, with
express mutual written notice, terminate this Services Agreement
for their mutual convenience at a mutually acceptable future
termination date or upon the passage of mutually acceptable
timeframe agreed between the parties.
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Effect of
Termination . Upon termination of this Agreement,
or any SOW attached
hereto, or any Services for any reason, (i) all materials,
including without limitation, confidential information, provided by
either party to the other will be promptly returned after the
effective date of termination, and (ii) all earned and unpaid fees
and expenses will become immediately due and
payable. Each party's termination rights set forth in
this Agreement are cumulative and are in addition to all other
rights and remedies available to the parties.
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In the event of
any termination of this Agreement by either CUSTOMER or VENDOR,
CUSTOMER’s maximum liability to VENDOR shall not exceed the
value of the unpaid portion of the Services actually completed by
VENDOR and accepted by CUSTOMER as of the effective date of the
termination.
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INDEMNIFICATION AND LIABILITY
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Indemnification. Subject to the limitation of liability set forth
herein, as applicable pursuant to its express terms, CUSTOMER
agrees at its expense to defend,
indemnify, and save VENDOR harmless from any and all loss, claims,
damages and expenses, including r
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