x
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ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934 FOR THE FISCAL YEAR ENDED DECEMBER 31, 2013
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OR
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o
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TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934
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Securities registered pursuant to Section 12(b) of the Act:
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Securities registered pursuant to section 12(g) of the Act:
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NONE
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COMMON STOCK
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Large Accelerated Filer
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o
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Accelerated Filer
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o
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Non-accelerated Filer
(Do not check if a smaller reporting company)
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o
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Smaller Reporting Company
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x
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Page
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Business.
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4
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Risk Factors.
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8
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Unresolved Staff Comments.
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8
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Properties.
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8
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Legal Proceedings.
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8
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Mine Safety Disclosure.
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8
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Market for Our Common Equity, Related Stockholder Matters and Issuer Purchases of Equity Securities.
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8
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Selected Financial Data.
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10
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Management’s Discussion and Analysis of Financial Condition and Results of
Operation.
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10
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Quantitative and Qualitative Disclosures About Market Risk.
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18
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Financial Statements and Supplementary Data.
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18
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Changes in and Disagreements With Accountants on Accounting and Financial
Disclosure.
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35
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Controls and Procedures.
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35
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Other Information.
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36
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Directors, Executive Officers and Corporate Governance.
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37
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Executive Compensation.
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40
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Security Ownership of Certain Beneficial Owners and Management and Related
Stockholder Matters.
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42
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Certain Relationships and Related Transactions, and Director Independence.
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43
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Principal Accountant Fees and Services.
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44
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Exhibits and Financial Statement Schedules.
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45
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49
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50
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MARKET FOR OUR COMMON EQUITY, RELATED STOCKHOLDER MATTERS AND ISSUER PURCHASES OF EQUITY SECURITIES.
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Fiscal Year – 2013
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High Bid
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Low Bid
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||
Fourth Quarter 10-1-2013 to 12-31-13
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$0.50
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$0.35
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Third Quarter 7-1-13 to 9-30-13
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$1.25
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$0.40
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Second Quarter 4-1-13 to 6-30-13
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$5.00
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$0.15
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First Quarter 1-1-13 to 3-31-13
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$0.10
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$0.10
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||||
Fiscal Year – 2012
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High Bid
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Low Bid
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Fourth Quarter 10-1-2012 to 12-31-12
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$0.00
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$0.00
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||
Third Quarter 7-1-12 to 9-30-12
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$0.00
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$0.00
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||
Second Quarter 4-1-12 to 6-30-12
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$0.00
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$0.00
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First Quarter 1-1-12 to 3-31-12
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$0.00
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$0.00
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Number of securities
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|||
Number of securities to
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Weighted-average
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remaining available for
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be issued upon exercise
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exercise price of
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future issuance under
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of outstanding options,
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outstanding options,
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equity compensation plans
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warrants and rights
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warrants and rights
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(excluding securities
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Plan category
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(a)
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(b)
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in column (a)) (c)
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Equity compensation plans
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|||
approved by security holders
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680,000
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$0.39
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1,820,000
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Equity compensation plans
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|||
not approved by securities
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|||
holders
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None
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None
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None
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Total
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680,000
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$0.39
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1,820,000
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Year Ended
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Change from
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Percent Change
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||||||||||||||
2013
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2012
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Prior Year
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from Prior Year
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|||||||||||||
Revenue
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$ | 940,315 | $ | 900,132 | $ | 40,183 | 4 | % |
Year Ended
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Change from
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Percent Change
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||||||||||||||
2013
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2012
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Prior Year
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from Prior Year
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|||||||||||||
Cost of Goods Sold
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$ | 344,978 | $ | 203,913 | $ | 141,065 | 69 | % |
Year Ended
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Change from
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Percent Change
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||||||||||||||
2013
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2012
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Prior Year
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from Prior Year
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|||||||||||||
Salaries and Wages
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$ | 703,176 | $ | 523,452 | $ | 179,724 | 34 | % |
Year Ended
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Change from
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Percent Change
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||||||||||||||
2013
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2012
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Prior Year
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from Prior Year
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|||||||||||||
Contract Services
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$ | 117,257 | $ | 162,206 | $ | (44,949 | ) | (28 | %) |
Year Ended
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Change from
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Percent Change
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||||||||||||||
2013
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2012
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Prior Year
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from Prior Year
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|||||||||||||
Other general and administrative
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$ | 397,885 | $ | 314,202 | $ | 83,683 | 27 | % |
·
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An increase of approximately $47,500 in marketing expenses related to lead generation, copywriting, marketing content development, marketing automation, pay-per-click (PPC) management, and market research.
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·
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An increase of approximately $33,000 in professional fees as a direct result of the increased use of legal and advisory services related to SEC and SEDAR filings, completion of a private placement of common stock, as well as our application for eligibility to distribute new and secondary offerings.
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·
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An increase of approximately $19,600 in insurance premium expenses due to increases in business auto, errors and omission, employee health coverage, and workers compensation premiums.
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·
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An increase of approximately $14,000 in third-party administrative costs associated with two consulting services engagements.
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·
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An increase of approximately $3,800 in other miscellaneous charges.
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·
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A decrease of approximately $34,500 in software license expenses related to costs incurred to establish technological feasibility in the first quarter of 2012.
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Year Ended
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Change from
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Percent Change
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||||||||||||||
2013
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2012
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Prior Year
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from Prior Year
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|||||||||||||
Other income (expense)
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$ | (80,519 | ) | $ | 7,675 | $ | (88,194 | ) | (1,149 | %) |
December 31, 2013
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December 31, 2012
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|||||||
Cash and Cash Equivalents
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$ | 653,990 | $ | 106,999 | ||||
Working Capital
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$ | 451,830 | $ | 166,928 |
Payments Due by Period
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||||||||||
Total
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Less Than
1 Year
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1-3 Years
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3-5 Years
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More Than
5 Years
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||||||
Operating lease obligations
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$
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66,639
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$
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24,732
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$
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41,907
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$
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-
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$
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-
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Purchase obligations
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$
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38,656
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$
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38,656
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$
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-
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$
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-
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$
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-
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(a)
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The operating lease obligations presented reflect future minimum lease payments due under the non-cancelable portions of our operating lease.
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(b)
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Purchase obligations primarily represent non-cancelable contractual obligations related to SaaS licenses.
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F-1
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FINANCIAL STATEMENTS
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F-2
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F-3
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F-4
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F-5
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F-6
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December 31,
|
||||||||
2013
|
2012
|
|||||||
Assets
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||||||||
Current assets:
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||||||||
Cash and cash equivalents
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$ | 653,990 | $ | 106,999 | ||||
Accounts receivable
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74,978 | 110,720 | ||||||
Accounts receivable-related party
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- | 1,527 | ||||||
Total current assets
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728,968 | 219,246 | ||||||
Long term assets:
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||||||||
Property and equipment, net
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91,108 | 152,724 | ||||||
Capitalized software development costs, net
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164,480 | 188,371 | ||||||
Intangible assets, net
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43,489 | 59,151 | ||||||
Other assets
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5,953 | 11,622 | ||||||
Total assets
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$ | 1,033,998 | $ | 631,114 | ||||
Liabilities and Shareholders' Equity
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||||||||
Current liabilities:
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||||||||
Accounts payable
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$ | 110,116 | $ | 50,866 | ||||
Accrued liabilities
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- | 1,452 | ||||||
Deferred revenue
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3,249 | - | ||||||
Other current liabilities, accrued interest
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13,773 | - | ||||||
Notes payable
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50,000 | - | ||||||
Notes payable-related party
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100,000 | - | ||||||
Total current liabilities
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277,138 | 52,318 | ||||||
Other noncurrent liabilities, accrued interest
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- | 7,500 | ||||||
Notes payable
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- | 50,000 | ||||||
Notes payable-related party
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- | 100,000 | ||||||
Total liabilities
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277,138 | 209,818 | ||||||
Commitments and contingencies
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||||||||
Shareholders' equity:
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||||||||
Common stock, $0 par value, 30,000,000 shares authorized,
16,081,158 and 13,132,302 shares issued and outstanding at
December 31, 2013 and 2012, respectively
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- | - | ||||||
Accumulated deficit
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(1,861,414 | ) | (1,145,758 | ) | ||||
Additional paid-in capital
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2,618,274 | 1,567,054 | ||||||
Total shareholders' equity
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756,860 | 421,296 | ||||||
Total liabilities and shareholders' equity
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$ | 1,033,998 | $ | 631,114 |
December 31,
|
||||||||
2013
|
2012
|
|||||||
Revenue
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||||||||
Consulting services
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$ | 902,530 | $ | 833,609 | ||||
Products and other
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37,785 | 66,523 | ||||||
Total revenue
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940,315 | 900,132 | ||||||
Cost of goods sold
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||||||||
Labor
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199,444 | 129,534 | ||||||
Services
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42,754 | 14,552 | ||||||
Products and other
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102,780 | 59,827 | ||||||
Total cost of goods sold
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344,978 | 203,913 | ||||||
Gross profit
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595,337 | 696,219 | ||||||
Expenses
|
||||||||
Salaries and wages
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703,176 | 523,452 | ||||||
Contract services
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117,257 | 162,206 | ||||||
Other general and administrative
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397,885 | 314,202 | ||||||
Total expenses
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1,218,318 | 999,860 | ||||||
Net operating income
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(622,981 | ) | (303,641 | ) | ||||
Interest expense
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(12,156 | ) | (10,982 | ) | ||||
Other income (expense)
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(80,519 | ) | 7,675 | |||||
Loss before income taxes
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(715,656 | ) | (306,948 | ) | ||||
Income tax provision
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- | - | ||||||
Net loss
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$ | (715,656 | ) | $ | (306,948 | ) | ||
Net loss per share-basic and diluted
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$ | (0.05 | ) | $ | (0.02 | ) | ||
Weighted average common shares outstanding-basic
and diluted
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14,606,730 | 13,132,302 |
Touchpoint Metrics, Inc.
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||||||||||||||||||||
Common Stock
|
Additional
Paid in
|
Retained
Earnings
(Accumulated
|
||||||||||||||||||
Shares
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Amount
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Capital
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Deficit)
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Total
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||||||||||||||||
Balance, December 31, 2011
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9,312,302 | $ | - | $ | 957,207 | $ | (837,310 | ) | $ | 119,897 | ||||||||||
Stock based compensation-stock options
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- | 13,347 | - | 13,347 | ||||||||||||||||
Common stock issued
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3,820,000 | - | 596,500 | (1,500 | ) | 595,000 | ||||||||||||||
Net loss
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- | - | - | (306,948 | ) | (306,948 | ) | |||||||||||||
Balance, December 31, 2012
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13,132,302 | $ | - | $ | 1,567,054 | $ | (1,145,758 | ) | $ | 421,296 | ||||||||||
Stock based compensation-stock options
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- | - | 19,120 | - | 19,120 | |||||||||||||||
Common stock issued
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2,948,856 | - | 1,032,100 | - | 1,032,100 | |||||||||||||||
Net loss
|
- | - | - | (715,656 | ) | (715,656 | ) | |||||||||||||
Balance, December 31, 2013
|
16,081,158 | $ | - | $ | 2,618,274 | $ | (1,861,414 | ) | $ | 756,860 |
December 31,
|
||||||||
2013
|
2012
|
|||||||
Cash flows from operating activities:
|
||||||||
Net loss
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$ | (715,656 | ) | $ | (306,948 | ) | ||
Adjustments to reconcile net income to net cash provided
by operations:
|
||||||||
Depreciation and amortization
|
59,072 | 7,730 | ||||||
Stock compensation expense
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19,120 | 13,347 | ||||||
Loss on disposal of assets
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62,982 | - | ||||||
Impairment of intangible asset
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17,537 | - | ||||||
Changes in operating assets and liabilities:
|
||||||||
Accounts receivable
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35,742 | (49,502 | ) | |||||
Accounts receivable, related party
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1,527 | (1,527 | ) | |||||
Other assets
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5,669 | 3,848 | ||||||
Accounts payable
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59,250 | (19,387 | ) | |||||
Accrued liabilities
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2,069 | (5,300 | ) | |||||
Accrued interest
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6,000 | 6,000 | ||||||
Net cash used in operating activities
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(446,688 | ) | (351,739 | ) | ||||
INVESTING ACTIVITIES
|
||||||||
Purchase of intangible assets
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(2,500 | ) | - | |||||
Equipment purchases
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(4,984 | ) | - | |||||
Capitalized software development costs
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(30,937 | ) | (188,371 | ) | ||||
Net cash used in investing activities
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(38,421 | ) | (188,371 | ) | ||||
FINANCING ACTIVITIES
|
||||||||
Proceeds from the issuance of common stock
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1,032,100 | 596,500 | ||||||
Retained earnings
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- | (1,500 | ) | |||||
Net cash provided by financing activities
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1,032,100 | 595,000 | ||||||
Increase in cash and cash equivalents
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546,991 | 54,890 | ||||||
Cash and cash equivalents, beginning of period
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106,999 | 52,109 | ||||||
Cash and cash equivalents, end of period
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$ | 653,990 | $ | 106,999 |
Depreciable Asset Class
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Depreciable Life
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Real Property Improvements
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15-Years
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Computer Equipment
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5-Years
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Furniture and Fixtures
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7-Years
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Leasehold Improvements
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15-Years
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Machinery and Equipment
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7-Years
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December 31,
|
December 31,
|
|||||||
2013
|
2012
|
|||||||
Computers and hardware
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$ | 48,014 | $ | 43,029 | ||||
Software
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38,646 | 38,646 | ||||||
Equipment
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2,359 | 2,359 | ||||||
Furniture
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31,731 | 31,731 | ||||||
Leasehold improvements
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- | 95,608 | ||||||
Land
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85,000 | 85,000 | ||||||
Land improvements
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4,000 | 4,000 | ||||||
209,750 | 300,373 | |||||||
Less: accumulated depreciation
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(118,642 | ) | (147,649 | ) | ||||
$ | 91,108 | $ | 152,724 |
Number of
Shares
|
Weighted
Avg EP per
Share
|
Weighted Avg
Remaining
Contractual
Term (Yrs)
|
Aggregate
Intrinsic
Value
|
|||||||||||||
Outstanding at December 31, 2012
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320,000 | $ | 0.34 | |||||||||||||
Granted
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380,000 | $ | 0.38 | |||||||||||||
Exercised
|
— | — | ||||||||||||||
Forfeited or expired
|
(20,000 | ) | $ | 0.25 | ||||||||||||
Outstanding at December 31, 2013
|
680,000 | $ | 0.39 | 8.57 | $ | 75,000 | ||||||||||
Fully vested and expected to vest at
December 31, 2013
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240,000 | $ | 0.35 | 7.11 | $ | 36,000 | ||||||||||
Non-exercisable at December 31, 2013
|
440,000 | $ | 0.41 | 9.37 | $ | 39,000 |
For the Twelve Months Ended
December 31,
|
||||||||||||
2013
|
2012
|
|||||||||||
Option
Grant 1
|
Option
Grant 2
|
|||||||||||
Expected life (in years)
|
6.00 | 6.00 | - | |||||||||
Risk-free interest rate
|
2.00 | % | 1.73 | % | - | |||||||
Volatility
|
65.99 | % | 65.13 | % | - | |||||||
Dividend yield
|
- | - | - | |||||||||
Weighted average grant date fair value per option granted
|
$ | 0.24 | $ | 0.30 | - |
2013
|
2012
|
|||||||
Largest client
|
46.82 | % | 20.59 | % | ||||
Second largest client
|
15.82 | % | 17.19 | % | ||||
Third largest client
|
13.27 | % | 15.58 | % | ||||
Next three largest clients
|
20.33 | % | 25.63 | % | ||||
All other clients
|
3.76 | % | 21.01 | % | ||||
100.0 | % | 100.0 | % |
Gross
|
Accumulated
Amortization
|
Impairment
|
Net Book Value
|
|||||||||||||
PetroPortfolio
|
$ | 131,151 | $ | $ | (89,537 | ) | $ | 41,614 | ||||||||
LinkedIn group
|
2,500 | (625 | ) | - | 1,875 | |||||||||||
Organization costs
|
1,377 | (1,377 | ) | - | - | |||||||||||
Total intangibles
|
$ | 135,028 | $ | (2,002 | ) | $ | (89,537 | ) | $ | 43,489 |
2014
|
$ | 24,732 | ||
2015
|
24,737 | |||
2016
|
17,170 | |||
2017
|
- | |||
2018
|
- | |||
Total minimum lease payments
|
$ | 66,639 |
2014
|
$ | 38,856 | ||
2015
|
- | |||
2016
|
- | |||
2017
|
- | |||
2018
|
- | |||
Total purchase obligations
|
$ | 38,856 |
December 31, 2013
|
||||
Current benefit
|
$ | (715,656 | ) | |
Deferred benefit
|
715,656 | |||
Net income tax (benefit) expense
|
$ | - |
Year Ended December 31,
|
||||||||
2013
|
2012
|
|||||||
Net loss
|
$ | (715,656 | ) | $ | (306,948 | ) | ||
Basic and diluted weighted average common shares outstanding
|
14,606,730 | 13,132,302 | ||||||
Net loss per share
|
||||||||
Basic and diluted
|
$ | (0.05 | ) | $ | (0.02 | ) |
Name and Address
|
Age
|
Position(s)
|
|
||
Michael Hinshaw
|
52
|
President, Chief Executive Officer, Chief Financial
Officer, Principal Executive Officer, Treasurer,
|
201 Spear Street, Suite 1100
|
Principal Financial Officer, Principal Accounting
Officer and a member of the Board of Directors
|
|
San Francisco, CA 94105
|
|
|
|
||
Lynn Davison
|
50
|
Chief Operating Officer, Secretary
|
201 Spear Street, Suite 1100
|
||
San Francisco, CA 94105
|
||
|
||
Ashley Garnot
|
28
|
Director
|
201 Spear Street, Suite 1100
|
||
San Francisco, CA 94105
|
1.
|
A petition under the Federal bankruptcy laws or any state insolvency law filed by or against, or a receiver, fiscal agent or similar officer appointed by a court for the business or property of such person, or any partnership in which he/she was a general partner at or within two years before the time of such filing, or any corporation or business association of which he/she was an executive officer at or within two years before the time of such filing;
|
2.
|
Convicted in a criminal proceeding or named subject of a pending criminal proceeding (excluding traffic violations and other minor offenses);
|
3.
|
The subject of any order, judgment, or decree, not subsequently reversed, suspended or vacated, of any court of competent jurisdiction, permanently or temporarily enjoining him/her from, or otherwise limiting, the following activities;
|
|
i)
|
Acting as a futures commission merchant, introducing broker, commodity trading advisor, commodity pool operator, floor broker, leverage transaction merchant, any other person regulated by the Commodity Futures Trading Commission, or an associated person of any of the foregoing, or as an investment adviser, underwriter, broker or dealer in securities, or as an affiliated person, director or employee of any investment company, bank, savings and loan association or insurance company, or engaging in or continuing any conduct or practice in connection with such activity; or
|
|
ii)
|
Engaging in any type of business practice; or
|
|
iii)
|
Engaging in any activity in connection with the purchase or sale of any security or commodity or in connection with any violation of Federal or State securities laws or Federal commodities laws.
|
4.
|
The subject of any order, judgment or decree, not subsequently reversed, suspended or vacated, of any Federal or State authority barring, suspending or otherwise limiting for more than 60 days the right of such person to engage in any activity described in paragraph 3.i in the preceding paragraph or to be associated with persons engaged in any such activity;
|
5.
|
Found by a court of competent jurisdiction in a civil action or by the Commission to have violated any Federal or State securities law, and the judgment in such civil action or finding by the Commission has not been subsequently reversed, suspended, or vacated;
|
6.
|
Found by a court of competent jurisdiction in a civil action or by the Commodity Futures Trading Commission to have violated any Federal commodities law, and the judgment in such civil action or finding by the Commodity Futures Trading Commission has not been subsequently reversed, suspended or vacated;
|
7.
|
The subject of, or a party to, any Federal or State judicial or administrative order, judgment, decree, or finding, not subsequently reversed, suspended or vacated, relating to an alleged violation of:
|
|
i)
|
Any Federal or State securities or commodities law or regulation; or
|
|
ii)
|
Any law or regulation respecting financial institutions or insurance companies including, but not limited to, a temporary or permanent injunction, order of disgorgement or restitution, civil money penalty or temporary or permanent cease-and-desist order, or removal or prohibition order, or
|
|
iii)
|
Any law or regulation prohibiting mail or wire fraud or fraud in connection with any business entity; or
|
8.
|
Was the subject of, or a party to, any sanction or order, not subsequently reversed, suspended or vacated, of any self-regulatory organization (as defined in Section 3(a)(26) of the Securities Exchange Act of 1934, as amended, (15 U.S.C. 78c(a)(26))), any registered entity (as defined in Section 1(a)(29) of the Commodity Exchange Act (7 U.S.C. 1(a)(29))), or any equivalent exchange, association, entity or organization that has disciplinary authority over its members or persons associated with a member.
|
(a)
|
(b)
|
(c)
|
(d)
|
(e)
|
(f)
|
(g)
|
(h)
|
(i)
|
(j)
|
Change in
|
|||||||||
Pension Value &
|
|||||||||
Nonqualified
|
|||||||||
Non-Equity
|
Deferred
|
||||||||
Name and
|
Stock
|
Option
|
Incentive Plan
|
Compensation
|
All Other
|
||||
Principal
|
Salary
|
Bonus
|
Awards
|
Awards
[1]
|
Compensation
|
Earnings
|
Compensation
|
Totals
|
|
Position
|
Year
|
($)
|
($)
|
($)
|
($)
|
($)
|
($)
|
($)
|
($)
|
|
|||||||||
Michael Hinshaw
|
2013
|
300,000
|
0
|
0
|
0
|
0
|
0
|
8,945
|
308,945
|
President
|
2012
|
300,000
|
0
|
0
|
0
|
0
|
0
|
0
|
300,000
|
|
|||||||||
Lynn Davison
|
2013
|
132,000
|
0
|
0
|
19,253
|
0
|
0
|
0
|
151,253
|
Vice President
|
2012
|
132,000
|
20,000
|
0
|
13,347
|
0
|
0
|
0
|
165,347
|
[1]
|
The amounts shown reflect the aggregate grant date fair value of the option awards computed in accordance with Financial Accounting Standards Board
Accounting Standards Codification Topic
718™, Compensation-Stock Compensation
(ASC 718). In valuing such options, the Company made certain assumptions. For a discussion of those assumptions, please see Note 5 to our Financial Statements for the Fiscal Years ended December 31, 2013 and 2012.
|
(a)
|
(b)
|
(c)
|
(d)
|
(e)
|
(f)
|
(g)
|
(h)
|
Change in
|
|||||||
Pension Value &
|
|||||||
Fees
|
Nonqualified
|
||||||
Earned or
|
Non-Equity
|
Deferred
|
|||||
Paid in
|
Stock
|
Option
|
Incentive Plan
|
Compensation
|
All Other
|
||
Cash
|
Awards
|
Awards
|
Compensation
|
Earnings
|
Compensation
|
Total
|
|
Name
|
($)
|
($)
|
($)
|
($)
|
($)
|
($)
|
($)
|
|
|||||||
Michael Hinshaw
|
0
|
0
|
0
|
0
|
0
|
0
|
0
|
Ashley Garnot
|
12,500
|
0
|
0
|
0
|
0
|
0
|
12,500
|
[1]
|
The option exercise price is set at $0.35 per share with a provision to reset if subsequent common stock offerings are made at a lower stock price. There was a subsequent private placement at $0.01 per share, lowering the option exercise price from $0.35 to $0.01.
|
Number of
|
Number of
|
Value
|
||
Shares Acquired
|
Value Realized
|
Shares Acquired
|
Realized on
|
|
On Exercise
|
On Exercise
|
On Vesting
|
Vesting
|
|
Name
|
(#)
|
($)
|
(#)
|
($)
|
(a)
|
(b)
|
(c)
|
(d)
|
(e)
|
|
||||
Lynn Davison
|
0
|
0
|
0
|
0
|
SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT AND RELATED STOCKHOLDER MATTERS.
|
Shares of Common Stock
|
||
Beneficially Owned
|
||
Name and Address of Beneficial Owner
|
Number
|
%
|
Michael Hinshaw
|
5,950,000
[1]
|
37.00%
|
201 Spear Street, Suite 1100
|
||
San Francisco, CA 94105
|
||
|
||
Lynn Davison
|
300,000
[2]
|
1.87%
|
201 Spear Street, Suite 1100
|
||
San Francisco, CA 94105
|
||
|
||
Ashley Garnot
|
850,000
[3]
|
5.29%
|
201 Spear Street, Suite 1100
|
||
San Francisco, CA 94105
|
||
|
||
All officers and directors as a group
|
7,100,000
|
44.16%
|
(3 individuals)
|
International Resource Management Corp.
|
1,962,302
|
12.20%
|
2901-1050 Burrard Street
|
||
Vancouver, British Columbia V6Z 2S3
|
||
|
||
PCL Holdings
|
1,350,000
[4]
|
8.39%
|
350-6165 Highway 17
|
||
Delta, British Columbia V4K 5B8
|
[1]
|
Comprised of 5,450,000 shares of common stock owned by Mr. Hinshaw and 500,000 shares of common stock held in the name of luckfound.org, of which Mr. Hinshaw is a director and has dispositive control.
|
[2]
|
Comprised of shares of common stock issuable upon the exercise of currently exercisable options.
|
[3]
|
Comprised of 500,000 shares of common stock held in the name of ALG Investments Ltd., which is owned and controlled by Ms. Garnot; 250,000 shares owned by Ms. Garnot and her husband, Wade Garnot; and, 100,000 shares held in Ms. Garnot’s maiden name, Ashley Guidi.
|
[4]
|
Comprised of 300,000 shares of common stock owned by Mr. Peter Loretto and 1,050,000 shares of common stock held in the name of PCL Holdings of which Mr. Loretto is a 100% owner and has dispositive control.
|
Number of securities
|
|||
Number of securities to
|
Weighted-average
|
remaining available for
|
|
be issued upon exercise
|
exercise price of
|
Future issuance under
|
|
of outstanding options,
|
outstanding options,
|
equity compensation plans
|
|
warrants and rights
|
warrants and rights
|
(excluding securities
|
|
Plan category
|
(a)
|
(b)
|
in column (a)) (c)
|
Equity compensation plans
approved by security holders
|
680,000
|
$0.39
|
1,820,000
|
Equity compensation plans
not approved by securities holders
|
None
|
None
|
None
|
|
|||
Total
|
680,000
|
$0.39
|
1,820,000
|
2013
|
$ | 10,500 |
Hillary CPA Group
|
||
2012
|
$ | 14,090 |
Hillary CPA Group
|
2013
|
$ | 0 |
Hillary CPA Group
|
||
2012
|
$ | 0 |
Hillary CPA Group
|
2013
|
$ | 750 |
Hillary CPA Group
|
||
2012
|
$ | 750 |
Hillary CPA Group
|
2013
|
$ | 0 |
Hillary CPA Group
|
||
2012
|
$ | 0 |
Hillary CPA Group
|
Incorporated by reference
|
Filed
|
||||
Exhibit
|
Document Description
|
Form
|
Date
|
Number
|
herewith
|
3.1
|
Articles of Incorporation (12/14/2001).
|
S-1
|
4/25/12
|
3.1
|
|
|
|||||
3.2
|
Amended Articles of Incorporation (4/08/2006).
|
S-1
|
4/25/12
|
3.2
|
|
|
|||||
3.3
|
Amended Articles of Incorporation (10/17/2011).
|
S-1
|
4/25/12
|
3.3
|
|
|
|||||
3.4
|
Amended and Restated Bylaws.
|
S-1
|
4/25/12
|
3.4
|
|
|
|||||
4.1
|
Specimen Stock Certificate.
|
S-1
|
4/25/12
|
4.1
|
|
|
|||||
10.1
|
Lease Agreement for San Anselmo office.
|
S-1
|
4/25/12
|
10.1
|
|
|
|||||
10.2
|
Lease Agreement for North Carolina office.
|
S-1
|
4/25/12
|
10.2
|
|
|
|||||
10.3
|
Lease Agreement for San Francisco office.
|
S-1
|
4/25/12
|
10.3
|
|
|
|||||
10.4
|
Deed covering Lake County Real Property.
|
S-1
|
4/25/12
|
10.4
|
|
|
|||||
10.5
|
Stock Option Plan.
|
S-1
|
4/25/12
|
10.5
|
|
|
|||||
10.6
|
Promissory Note – McLellan Investment Corporation.
|
S-1/A-2
|
7/24/12
|
10.6
|
|
|
|||||
10.7
|
Promissory Note – Brad Holland.
|
S-1/A-2
|
7/24/12
|
10.7
|
|
|
|||||
10.8
|
Employment Agreement – Lynn Davison.
|
S-1/A-3
|
9/12/12
|
10.8
|
|
|
|||||
10.9
|
Services Agreement with mfifty dated March 2, 2012.
|
S-1/A-3
|
9/12/12
|
10.9
|
|
|
|||||
10.10
|
Letter of Agreement with TAG Oil, Ltd. dated February 1, 2010.
|
S-1/A-4
|
10/16/12
|
10.1
|
|
|
10.11
|
Letter of Agreement TAG Oil, Ltd. with dated September 1, 2010.
|
S-1/A-4
|
10/16/12
|
10.2
|
|
|
|||||
10.12
|
Letter of Agreement with Infinitee dated May 26, 2011.
|
S-1/A-4
|
10/16/12
|
10.3
|
|
|
|||||
10.13
|
Letter of Agreement with Dolce Vita Homes LP dated May 31, 2011.
|
S-1/A-4
|
10/16/12
|
10.4
|
|
|
|||||
10.14
|
Letter of Agreement with Labrador Technology, Inc. dated June 3, 2011.
|
S-1/A-4
|
10/16/12
|
10.5
|
|
|
|||||
10.15
|
Letter of Agreement with Infinitee dated July 15, 2011.
|
S-1/A-4
|
10/16/12
|
10.6
|
|
|
|||||
10.16
|
Letter of Agreement with Brinson Patrick Securities dated October 27, 2011.
|
S-1/A-4
|
10/16/12
|
10.7
|
|
|
|||||
10.17
|
Letter of Agreement with Labrador Technology, Inc. dated N
vember 22, 2011.
|
S-1/A-4
|
10/16/12
|
10.8
|
|
|
|||||
10.18
|
Letter of Agreement with Brinson Patrick Securities dated
February 1, 2012.
|
S-1/A-4
|
10/16/12
|
10.9
|
|
|
|||||
10.19
|
Statement of Work for mfifty dated March 2, 2012.
|
S-1/A-4
|
10/16/12
|
10.10
|
|
|
|||||
10.20
|
Letter of Agreement with Danone Trading B.V. dated April 17,
2012.
|
S-1/A-5
|
11/05/12
|
10.11
|
|
|
|||||
10.21
|
Letter of Agreement and Addendum to Proposal with Danone
Trading B.V. dated April 25, 2012.
|
S-1/A-4
|
10/16/12
|
10.12
|
|
|
|||||
10.22
|
Consulting Agreement with California Physicians’ Service d/b/a
Blue Shield of California dated August 30, 2012.
|
10-K
|
3/27/13
|
10.22
|
|
|
|||||
10.23
|
Statement of Work for MBO Partners, Inc. dated October 29, 2012.
|
10-K
|
3/27/13
|
10.23
|
|
|
|||||
10.24
|
Services Agreement with Tanger Factory Outlet Centers, Inc. dated
August 28, 2012.
|
10-Q
|
5/15/13
|
10.24
|
|
|
|||||
10.25
|
Statement of Work with Tanger Factory Outlet Centers, Inc. dated
August 28, 2012.
|
10-Q
|
5/15/13
|
10.25
|
|
|
|||||
10.26
|
Services Agreement with Centurion Medical Products dated
October 4, 2012.
|
10-Q
|
5/15/13
|
10.26
|
|
|
|||||
10.27
|
Statement of Work with Centurion Medical Products dated
October 4, 2012.
|
10-Q
|
5/15/13
|
10.27
|
|
|
|||||
10.28
|
Services Agreement with Quadrant Homes dated November 30,
2012.
|
10-Q
|
5/15/13
|
10.28
|
|
|
|||||
10.29
|
Statement of Work with Quadrant Homes dated November 30,
2012.
|
10-Q
|
5/15/13
|
10.29
|
10.30
|
Services Agreement with Arizona State Credit Union dated March
29, 2013.
|
10-Q
|
8/08/13
|
10.30
|
|
|
|||||
10.31
|
Statement of Work with Arizona State Credit Union dated March
29, 2013.
|
10-Q
|
8/08/13
|
10.31
|
|
|
|||||
10.32
|
Statement of Work with Quadrant Homes dated April 2, 2013.
|
10-Q
|
8/08/13
|
10.32
|
|
|
|||||
10.33
|
Statement of Work with Quadrant Homes dated April 2, 2013.
|
10-Q
|
8/08/13
|
10.33
|
|
|
|||||
10.34
|
Statement of Work with Quadrant Homes dated April 8, 2013.
|
10-Q
|
8/08/13
|
10.34
|
|
|
|||||
10.35
|
Statement of Work with Tanger Factory Outlet Centers, Inc. dated
April 9, 2013.
|
10-Q
|
8/08/13
|
10.35
|
|
|
|||||
10.36
|
Statement of Work with Tanger Factory Outlet Centers, Inc. dated
April 9, 2013.
|
10-Q
|
8/08/13
|
10.36
|
|
|
|||||
10.37
|
Statement of Work with Microsoft dated September 3, 2013.
|
10-Q
|
11/14/13
|
10.37
|
|
|
|||||
10.38
|
Share Option Plan with Lynn Davison dated September 3, 2013.
|
10-Q
|
11/14/13
|
10.38
|
|
|
|||||
10.39
|
Lease Extension Agreement with Annette Kaufman Survivor Trust
dated February 26, 2013.
|
X
|
|||
|
|||||
10.40
|
Independent Contractor Agreement with Ashley Garnot dated
August 1, 2013.
|
X
|
|||
|
|||||
10.41
|
Non-Disclosure Agreement with Ashley Garnot dated August 1,
2013.
|
X
|
|||
|
|||||
10.42
|
Statement of Work with Ashley Garnot dated August 1, 2013.
|
X
|
|||
|
|||||
10.43
|
Master Services Agreement with Progress Software Corporation
dated December 6, 2013.
|
X
|
|||
|
|||||
10.44
|
Statement of Work (Schedule A) with Progress Software dated
December 6, 2013.
|
X
|
|||
|
|||||
10.45
|
Services Agreement with RedPort International, LLC dated December 3, 2013.
|
X
|
|||
|
|||||
10.46
|
Statement of Work with RedPort International, LLC dated
December 9, 2013.
|
X
|
|||
|
|||||
10.47
|
Statement of Work with Microsoft dated December 16, 2013.
|
X
|
|||
|
|||||
10.48
|
Statement of Work 2 with Ashley Garnot dated February 2, 2014.
|
X
|
|||
|
|||||
14.1
|
Code of Ethics.
|
10-K
|
3/27/13
|
14.1
|
|
|
|||||
31.1
|
Certification of Principal Executive Officer and Principal Financial Officer pursuant to Section 302 of the Sarbanes-Oxley Act of 2002.
|
X
|
TOUCHPOINT METRICS, INC.
|
||
(the “
Registrant
”)
|
||
|
||
BY:
|
MICHAEL HINSHAW
|
|
Michael Hinshaw
|
||
Principal Executive Officer, Principal Accounting Officer, Principal Financial Officer, Treasurer and a member of the Board of Directors
|
Signature
|
Title
|
Date
|
MICHAEL HINSHAW
|
President, Principal Executive Officer,
Treasurer, Principal Financial Officer, Principal Accounting Officer and a Director
|
March 28, 2014
|
Michael Hinshaw
|
|
|
ASHLEY GARNOT
|
Director
|
March 28, 2014
|
Ashley Garnot
|
Incorporated by reference
|
Filed
|
||||
Exhibit
|
Document Description
|
Form
|
Date
|
Number
|
herewith
|
3.1
|
Articles of Incorporation (12/14/2001).
|
S-1
|
4/25/12
|
3.1
|
|
|
|||||
3.2
|
Amended Articles of Incorporation (4/08/2006).
|
S-1
|
4/25/12
|
3.2
|
|
|
|||||
3.3
|
Amended Articles of Incorporation (10/17/2011).
|
S-1
|
4/25/12
|
3.3
|
|
|
|||||
3.4
|
Amended and Restated Bylaws.
|
S-1
|
4/25/12
|
3.4
|
|
|
|||||
4.1
|
Specimen Stock Certificate.
|
S-1
|
4/25/12
|
4.1
|
|
|
|||||
10.1
|
Lease Agreement for San Anselmo office.
|
S-1
|
4/25/12
|
10.1
|
|
|
|||||
10.2
|
Lease Agreement for North Carolina office.
|
S-1
|
4/25/12
|
10.2
|
|
|
|||||
10.3
|
Lease Agreement for San Francisco office.
|
S-1
|
4/25/12
|
10.3
|
|
|
|||||
10.4
|
Deed covering Lake County Real Property.
|
S-1
|
4/25/12
|
10.4
|
|
|
|||||
10.5
|
Stock Option Plan.
|
S-1
|
4/25/12
|
10.5
|
|
|
|||||
10.6
|
Promissory Note – McLellan Investment Corporation.
|
S-1/A-2
|
7/24/12
|
10.6
|
|
|
|||||
10.7
|
Promissory Note – Brad Holland.
|
S-1/A-2
|
7/24/12
|
10.7
|
|
|
|||||
10.8
|
Employment Agreement – Lynn Davison.
|
S-1/A-3
|
9/12/12
|
10.8
|
|
|
|||||
10.9
|
Services Agreement with mfifty dated March 2, 2012.
|
S-1/A-3
|
9/12/12
|
10.9
|
|
|
|||||
10.10
|
Letter of Agreement with TAG Oil, Ltd. dated February 1, 2010.
|
S-1/A-4
|
10/16/12
|
10.1
|
|
|
|||||
10.11
|
Letter of Agreement TAG Oil, Ltd. with dated September 1, 2010.
|
S-1/A-4
|
10/16/12
|
10.2
|
|
|
|||||
10.12
|
Letter of Agreement with Infinitee dated May 26, 2011.
|
S-1/A-4
|
10/16/12
|
10.3
|
|
|
|||||
10.13
|
Letter of Agreement with Dolce Vita Homes LP dated May 31,
2011.
|
S-1/A-4
|
10/16/12
|
10.4
|
|
|
|||||
10.14
|
Letter of Agreement with Labrador Technology, Inc. dated June 3,
2011.
|
S-1/A-4
|
10/16/12
|
10.5
|
|
|
|||||
10.15
|
Letter of Agreement with Infinitee dated July 15, 2011.
|
S-1/A-4
|
10/16/12
|
10.6
|
|
|
|||||
10.16
|
Letter of Agreement with Brinson Patrick Securities dated October
27, 2011.
|
S-1/A-4
|
10/16/12
|
10.7
|
|
|
|||||
10.17
|
Letter of Agreement with Labrador Technology, Inc. dated
November 22, 2011.
|
S-1/A-4
|
10/16/12
|
10.8
|
|
|
10.18
|
Letter of Agreement with Brinson Patrick Securities dated
February 1, 2012.
|
S-1/A-4
|
10/16/12
|
10.9
|
|
|
|||||
10.19
|
Statement of Work for mfifty dated March 2, 2012.
|
S-1/A-4
|
10/16/12
|
10.10
|
|
|
|||||
10.20
|
Letter of Agreement with Danone Trading B.V. dated April 17,
2012.
|
S-1/A-5
|
11/05/12
|
10.11
|
|
|
|||||
10.21
|
Letter of Agreement and Addendum to Proposal with Danone
Trading B.V. dated April 25, 2012.
|
S-1/A-4
|
10/16/12
|
10.12
|
|
|
|||||
10.22
|
Consulting Agreement with California Physicians’ Service d/b/a
Blue Shield of California dated August 30, 2012.
|
10-K
|
3/27/13
|
10.22
|
|
|
|||||
10.23
|
Statement of Work for MBO Partners, Inc. dated October 29, 2012.
|
10-K
|
3/27/13
|
10.23
|
|
|
|||||
10.24
|
Services Agreement with Tanger Factory Outlet Centers, Inc. dated
August 28, 2012.
|
10-Q
|
5/15/13
|
10.24
|
|
|
|||||
10.25
|
Statement of Work with Tanger Factory Outlet Centers, Inc. dated
August 28, 2012.
|
10-Q
|
5/15/13
|
10.25
|
|
|
|||||
10.26
|
Services Agreement with Centurion Medical Products dated
October 4, 2012.
|
10-Q
|
5/15/13
|
10.26
|
|
|
|||||
10.27
|
Statement of Work with Centurion Medical Products dated
October 4, 2012.
|
10-Q
|
5/15/13
|
10.27
|
|
|
|||||
10.28
|
Services Agreement with Quadrant Homes dated November 30,
2012.
|
10-Q
|
5/15/13
|
10.28
|
|
|
|||||
10.29
|
Statement of Work with Quadrant Homes dated November 30,
2012.
|
10-Q
|
5/15/13
|
10.29
|
|
|
|||||
10.30
|
Services Agreement with Arizona State Credit Union dated March
29, 2013.
|
10-Q
|
8/08/13
|
10.30
|
|
|
|||||
10.31
|
Statement of Work with Arizona State Credit Union dated March
29, 2013.
|
10-Q
|
8/08/13
|
10.31
|
|
|
|||||
10.32
|
Statement of Work with Quadrant Homes dated April 2, 2013.
|
10-Q
|
8/08/13
|
10.32
|
|
|
|||||
10.33
|
Statement of Work with Quadrant Homes dated April 2, 2013.
|
10-Q
|
8/08/13
|
10.33
|
|
|
|||||
10.34
|
Statement of Work with Quadrant Homes dated April 8, 2013.
|
10-Q
|
8/08/13
|
10.34
|
|
|
|||||
10.35
|
Statement of Work with Tanger Factory Outlet Centers, Inc. dated
April 9, 2013.
|
10-Q
|
8/08/13
|
10.35
|
|
|
10.36
|
Statement of Work with Tanger Factory Outlet Centers, Inc. dated
April 9, 2013.
|
10-Q
|
8/08/13
|
10.36
|
|
|
|||||
10.37
|
Statement of Work with Microsoft dated September 3, 2013.
|
10-Q
|
11/14/13
|
10.37
|
|
|
|||||
10.38
|
Share Option Plan with Lynn Davison dated September 3, 2013.
|
10-Q
|
11/14/13
|
10.38
|
|
|
|||||
10.39
|
Lease Extension Agreement with Annette Kaufman Survivor Trust
dated February 26, 2013.
|
X
|
|||
|
|||||
10.40
|
Independent Contractor Agreement with Ashley Garnot dated
August 1, 2013.
|
X
|
|||
|
|||||
10.41
|
Non-Disclosure Agreement with Ashley Garnot dated August 1,
2013.
|
X
|
|||
|
|||||
10.42
|
Statement of Work with Ashley Garnot dated August 1, 2013.
|
X
|
|||
|
|||||
10.43
|
Master Services Agreement with Progress Software Corporation
dated December 6, 2013.
|
X
|
|||
|
|||||
10.44
|
Statement of Work (Schedule A) with Progress Software dated
December 6, 2013.
|
X
|
|||
|
|||||
10.45
|
Services Agreement with RedPort International, LLC dated December 3, 2013
|
X
|
|||
|
|||||
10.46
|
Statement of Work with RedPort International, LLC dated
December 9, 2013.
|
X
|
|||
|
|||||
10.47
|
Statement of Work with Microsoft dated December 16, 2013.
|
X
|
|||
|
|||||
10.48
|
Statement of Work 2 with Ashley Garnot dated February 2, 2014.
|
X
|
|||
|
|||||
14.1
|
Code of Ethics.
|
10-K
|
3/27/13
|
14.1
|
|
|
|||||
31.1
|
Certification of Principal Executive Officer and Principal Financial Officer pursuant to Section 302 of the Sarbanes-Oxley Act of 2002.
|
X
|
|||
|
|||||
32.1
|
Certification of Chief Executive Officer and Chief Financial Officer pursuant to Section 906 of the Sarbanes-Oxley Act of 2002.
|
X
|
|||
|
|||||
99.3
|
Touchpoint Metrics Company Overview Content.
|
8-K
|
2/13/14
|
99.3
|
|
|
|||||
99.4
|
Touchpoint Metrics Case Study Real Estate Customer Insight.
|
8-K
|
2/13/14
|
99.4
|
|
|
|||||
99.5
|
Touchpoint Metrics Case Study Banking First Time.
|
8-K
|
2/13/14
|
99.5
|
|
|
|||||
99.6
|
Touchpoint Metrics Case Study Banking Scaling Service.
|
8-K
|
2/13/14
|
99.6
|
|
99.7
|
Letter to Shareholders
|
X
|
101.INS
|
XBRL Instance Document.
|
X
|
|||
|
|||||
101.SCH
|
XBRL Taxonomy Extension – Schema.
|
X
|
|||
|
|||||
101.CAL
|
XBRL Taxonomy Extension – Calculations.
|
X
|
|||
|
|||||
101.DEF
|
XBRL Taxonomy Extension – Definitions.
|
X
|
|||
|
|||||
101.LAB
|
XBRL Taxonomy Extension – Labels.
|
X
|
|||
|
|||||
101.PRE
|
XBRL Taxonomy Extension – Presentation.
|
X
|
Lessor: | Lessee: | |||
MICHAEL MIRSKY | MICHAEL HINSHAW | |||
Michael Mirsky | Michael Hinshaw | |||
President, Touchpoint Metrics, Inc. | ||||
Date: 3/28/13 | Date: 2/26/13 | |||
Touchpoint Metrics, Inc.
By:
MICHAEL HINSHAW
Name: Michael Hinshaw
Title: President
Date: __August 1, 2013___________________
|
Consultant
By:
ASHLEY GARNOT
Name: Ashley Garnot
Title: __________________________________
Date: __8/7/2013_______________________
|
Consultant
By:
ASHLEY GARNOT
Name:
Ashley Garnot
Title:
__________________________________
Date:_
8/7/2013________________________
|
For the Company
MICHAEL HINSHAW
|
Accepted for Consultant
ASHLEY GARNOT
|
|
Signature
|
Signature
|
|
Michael Hinshaw
President
August 1, 2013
|
Ashley Garnot
8/7/2013
Date
|
1.
|
Engagement and Statements of Work.
|
1.1.
|
Progress engages Supplier to perform services such as customer experience measurement and brand management strategy consulting services, which may include the provision of certain deliverables (collectively, the “Services”) and which are further described in Progress Purchase Order (“PO”) and/or Statement of Work (“SOW”), generally in the form attached hereto as Schedule A, to be executed during the Term of this Agreement by an authorized representative from each party.
|
1.2.
|
Each PO and/or SOW issued pursuant to this Agreement shall be deemed incorporated into and governed by the terms of this MSA, and the Supplier’s provision of Services shall be governed by this MSA. Where the terms of a PO and/or SOW conflict with the terms of this MSA, the terms of the MSA shall prevail, except to the extent that the PO and/or SOW expressly states that the MSA is to be overridden or modified. No Progress financial obligation will arise without issuance of a PO and/or SOW.
|
1.3.
|
Progress may at any time, in writing, make reasonable changes in the work described in a PO and/or SOW. If any changes cause an increase or decrease in the cost of, or the time required for the performance of, any work under a PO and/or SOW, an equitable adjustment shall be made in Supplier’s fee or delivery schedule, or both. Any Supplier claim for an adjustment must be asserted within ten (10) days of Supplier’s receipt of the change notification, and must be approved in a written amendment (“Change Order”). Estimates of cost, time, and/or other items that may be included within a PO and/or SOW shall not be exceeded unless authorized in advance and in writing by Progress. The terms and conditions of this Agreement shall prevail over any additional or conflicting terms or conditions of Supplier contained in any "shrink-wrap" or "click-through" agreements, used in connection with any of Supplier’s applications or otherwise made available to Progress in connection with the applications, and Progress and its employees and agents shall not be bound by any such terms and conditions.
|
1.4.
|
Any Progress “Affiliate” may issue a PO and/or SOW under this MSA. An “Affiliate” with respect to either party shall mean any entity, including without limitation, any individual, corporation, company, partnership, limited liability company or group, that directly, or indirectly through one or more intermediaries, controls, is controlled by or is under common control with such party. The term “Progress” as used in this Agreement shall be deemed to include an Affiliate as applicable. For the purposes of any PO and/or SOW issued by a Progress Affiliate hereunder, shall be deemed to include only the Progress Affiliate issuing such PO and/or SOW. The parties expressly agree that PROGRESS SHALL HAVE NO LIABILITY NOR SHALL PROGRESS INCUR ANY OBLIGATION OR BE RESPONSIBLE FOR THE FAILURE OF ANY PROGRESS AFFILIATE TO PERFORM ITS OBLIGATIONS UNDER THIS AGREEMENT OR ANY PO AND/OR SOW PLACED HEREUNDER.
|
2.
|
Term.
The term of this Agreement (“Term”) shall begin on the Effective Date and end on the first (1st) anniversary immediately following the Effective Date (“Expiration Date”), unless sooner terminated as provided below. If signed after the Effective Date, the MSA shall be deemed retroactive to the Effective Date. Within thirty (30) days prior to the Expiration Date or upon termination of this Agreement, Progress shall have the right to extend this Agreement for a period of time specified by Progress, but not to exceed six (6) months, (the "Transition Period") by providing written notice of such postponement to Supplier upon, prior to or promptly after such expiration or termination. If Progress so elects to postpone the expiration or termination of this Agreement, Supplier shall cooperate with Progress in effecting the orderly transfer of Progress Data (as hereinafter defined) to Progress or a third party designated by Progress, and continue to perform those Services requested by Progress in writing in accordance with the terms and conditions set forth
herein.
|
3.
|
Supplier’s Personnel.
|
3.1.
|
All persons providing Services under this Agreement are collectively referred to herein as “Supplier’s Personnel”. If requested by Progress, Supplier shall provide the names of all Supplier’s Personnel, indicating the relationship between Supplier and any person who is not Supplier’s full-time employee. Progress shall have the right to approve each such Supplier’s Personnel before assignment to any effort to be undertaken by Supplier, the granting of access to any Progress facility and the disclosure of any Progress information.
|
3.2.
|
Supplier shall, before engaging in work and after securing written authorization from all Supplier’s Personnel, screen against the following lists:
|
·
|
United States (“U.S.”) Department of Commerce (“DOC”) Denied Persons List:
|
·
|
US Dept. of Commerce Entity List:
|
·
|
U.S. Department of Treasury Specially Designated Nationals and Blocked Persons List:
|
·
|
U.S. Department of State (“DOS”) Debarment List:
|
|
http://www.pmddtc.state.gov/debar059.htm
.
|
3.3.
|
In no event will Supplier, or any Supplier’s Personnel, be considered an employee, subcontractor or agent of Progress. The performance of Services by Supplier and receipt of payments shall have no effect on any payments or benefits that any of Supplier’s Personnel is now or may later become entitled to as a result of past employment by Progress. For the avoidance of doubt, neither Supplier nor any of Supplier’s Personnel are entitled to any medical or dental coverage or life or disability insurance from Progress, or entitled to participate in Progress profit sharing, pension or thrift plan, or any other benefits afforded to any of Progress’s employees. Supplier shall be responsible for the supervision, direction and control of Supplier’s Personnel as well as the payment of compensation (including withholding of taxes and social security), contribution to workers' compensation and unemployment compensation, overtime, disability benefits, and any other legally-required benefits or compensation or discretionary benefits or compensation. Supplier shall pay Supplier’s Personnel on a W-2 basis. Supplier acknowledges that all Supplier’s Personnel hired after November 6, 1986, are subject to the U.S. Immigration and Naturalization Service’s “I-9 Process” and represents that it complies with the Immigration Reform and Control Act of 1986, the Immigration Reform Act of 1990 and the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, as the same shall be amended from time to time.
|
3.4.
|
Whenever present on Progress premises, Supplier shall comply and shall cause Supplier’s Personnel to comply with all applicable Progress on-site policies and procedures and all reasonable instructions or directions issued by Progress. If Supplier’s Personnel are given access to any Progress computers, computer systems and networks (collectively, “Networks”), Supplier shall cause Supplier’s Personnel to comply with Progress’ policies relating to such network access.
|
3.5.
|
Supplier and Supplier’s Personnel shall treat all passwords, Progress Networks, access information and information concerning Progress’s security systems (physical, electronic and otherwise) as Confidential Information (as hereinafter defined) in accordance with the Confidentiality Section of this Agreement (excluding the exceptions noted in that Section).
|
3.6.
|
Supplier shall promptly remove any individual whom Progress, in its sole but good faith opinion and in accordance with applicable law, considers to be unqualified to perform the Services as required, disruptive to the progress of work being performed, detrimental to any Progress’s operations, violates any Progress policy or fails to meet any of Progress’s standards for physical or other access to Progress Property or any Progress Networks. In any such case, Supplier shall promptly replace that individual with a person who meets the requirements of this Agreement and is approved by Progress.
|
3.7.
|
Supplier shall use reasonable efforts to maintain the continuity of Supplier’s Personnel rendering Services under a particular PO or SOW and to refrain from reassigning such Supplier’s Personnel to other projects for periods of time during which such Supplier’s Personnel are scheduled to render Services to Progress, unless otherwise agreed to in writing by both parties. If any Supplier’s Personnel terminate their employment with Supplier or otherwise become unavailable to provide the Services beyond Supplier's reasonable control, Supplier may provide the Services through other Supplier’s Personnel with comparable training and experience, provided that:
|
3.7.1.
|
Supplier promptly shall notify Progress of the termination or unavailability of such Supplier’s Personnel;
|
3.7.2.
|
Supplier shall provide Progress with the resumes of any proposed replacement Supplier’s Personnel before they are assigned to perform any Services;
|
3.7.3.
|
Progress shall have the right to approve any replacement Supplier’s Personnel proposed by Supplier for assignment to perform any Services, provided that such approval shall not be unreasonably withheld or delayed; and
|
3.7.4.
|
if no suitable replacement is agreed to by the parties, Progress may terminate the PO or SOW without liability to Supplier.
|
3.8.
|
All Supplier’s Personnel who will have access to Progress Property (as hereinafter defined), Progress Networks, Progress premises or any Progress Confidential Information are subject to Progress’s normal background investigation procedures prior to such access being given and Progress may deny such access based on the results of such background investigation. Supplier shall inform Supplier’s Personnel of such background investigations and obtain all required consents and disclosures from Supplier’s Personnel.
|
3.9.
|
Any immunity or exclusivity of any labor, workers' compensation, or similar statute applicable to Supplier will not in any way limit or preclude Supplier's obligation to provide indemnification hereunder. The foregoing indemnity will not be limited in any manner whatsoever by any required or other insurance coverage maintained by Supplier.
|
3.10.
|
This Section will survive the expiration or termination of this Agreement.
|
4.
|
Compensation and Payment Terms.
|
4.1.
|
Unless expressly modified in a PO or SOW:
|
4.1.1.
|
Supplier shall be paid on a time and materials basis as provided in any applicable PO or SOW with expenses reimbursed in accordance with the Progress’s Travel and Expense Policy attached hereto as Schedule E. The foregoing will be the entire compensation to be paid to Supplier and will be in full discharge of any and all liability in contract or otherwise with respect to all Services rendered by the Supplier and Supplier’s Personnel.
|
4.1.2.
|
All fees will be paid in U.S. Dollars and delivered to Supplier’s address as specified on the Fee Schedule, PO and/or SOW.
|
4.1.3.
|
Progress shall not reimburse Supplier for administrative or account management fees, or incidental expenses such as copying, faxes, postage, etc.
|
4.2.
|
Progress shall be responsible only for sovereign, state and local sales, use, excise, and value added tax that is not recoverable by Progress and any other taxes, fees, and/or duties applicable to the goods and/or Services purchased under the PO and/or SOW. Any taxes for which Progress is responsible must be listed as separate line items on Supplier’s invoice. If Supplier is obligated by law to charge any value added and/or similar tax to Progress, Supplier shall ensure that if such value-added and/or similar tax is applicable, that it is invoiced to Progress in accordance with applicable rules so as to allow Progress to reclaim such value-added and/or similar tax from the appropriate government authority. Neither party is responsible for taxes on the other party’s income or the income of the other party’s personnel or subcontractors. If Progress is required by government regulation to withhold taxes for which Supplier is responsible, Progress will deduct such withholding tax from payment to Supplier and provide to Supplier a valid tax receipt in Supplier’s name. If Supplier is exempt from such withholding taxes as a result of a tax treaty or other regime, Supplier shall provide to Progress a valid tax treaty residency certificate or other tax exemption certificate at a minimum of thirty (30) days prior to payment being due.
|
4.3.
|
Supplier shall comply with and pay all contributions, taxes, assessments, charges and premiums payable under federal, state and local laws measured upon the payroll of Supplier’s Personnel engaged in Services hereunder, and all sales, use, excise, transportation, privilege, occupational, consumer and other taxes not required by law to be collected from Progress and all assessments and charges for unemployment compensation, old age pensions or benefits, annuities or other charges imposed by federal or state law or regulation, and shall hold Progress harmless from liability for any such contributions, taxes, premiums, charges or assessments.
|
4.4.
|
Within thirty (30) days of the date of termination of this Agreement as provided herein, Supplier will invoice and be paid for all outstanding fees based on actual time incurred and Suppliers standard billing rates, if not detailed otherwise in the SOW governing the services provided, as well as all authorized out-of-pocket costs, as follows:
|
Labor Category
|
Hourly Rate ($)
|
Admin/Support Staff
|
$110
|
Analyst
|
$225
|
Consultant
|
$375
|
Project leader
|
$475
|
Partner/Engagement Leader
|
$650
|
4.5.
|
|
4.6.
|
When any applicable governmental law, rule or regulation makes any payment prohibited or improper or requires the payment of a reduced fee, the portion of the fee so affected shall not be paid or if paid shall be refunded to Progress.
|
4.7.
|
Progress shall be entitled at all times to set off any amount owing at any time from Supplier to Progress or its Affiliates in connection with this or any other agreement between Supplier and Progress or its Affiliates.
|
4.8.
|
This Section will survive the expiration or termination of this Agreement.
|
5.
|
Confidentiality.
|
5.1.
|
Supplier and all Supplier’s Personnel shall maintain in confidence, safeguard and shall not disclose (except to those Supplier’s Personnel, attorneys, consultants, authorized subcontractors and other advisors of Supplier who need to know such information in connection with Supplier’s performance of its obligations or exercise of its rights under this Agreement, and who are bound by written confidentiality and limited use obligations at least as stringent as those contained herein), copy or use for purposes other than the performance of this Agreement, any and all Confidential Information. “Confidential Information” means: information that is or has been disclosed to Supplier by Progress or its Affiliates (defined in Section 1.4): (i) in writing or by email or other tangible electronic storage medium and is clearly marked "Confidential" or "Proprietary"; or (ii) orally or visually, and then followed within thirty (30) working days thereafter with a summary or disclosure complying with the requirements of clause (i) above. Notwithstanding the foregoing, Confidential Information also includes, without limitation: (a) commercially valuable information of Progress and its Affiliates and their successors and assigns, the design and development of which required considerable amounts of time and money; (b) any computer software product and related information (collectively “Software Product”) developed by Progress and its Affiliates and/or their successors and assigns; and (c) any Progress Property (as defined in Section 6.2.1).
|
5.2.
|
If, in the provision of the Services, Supplier may have access to any Personal Information (as defined below), then (a) such Personal Information shall also be included within the definition of Confidential Information, For the purposes of this Agreement, the term “Personal Information” shall mean an individual person’s (y) first and last name, or first initial and last name, combined with (z) certain financial information, a social security number, a driver’s license number and/or a state-issued identification number.
|
5.3.
|
Supplier recognizes and acknowledges the confidential and proprietary nature of any Confidential Information and acknowledges the irreparable harm that could result to Progress if it is disclosed to a third party or used for unauthorized purposes without Progress’s prior written consent. Therefore, Supplier agrees, except as required by law:
|
5.3.1.
|
to protect the confidentiality of Progress’s Confidential Information (including any notes, summaries, reports, analyses or other material derived by Supplier or Supplier’s Personnel in whole or in part from the Confidential Information in whatever form maintained (collectively, “Notes”));
|
5.3.2.
|
to use the Confidential Information and/or Notes only for the purposes of conducting business with Progress in a manner contemplated by this Agreement; and
|
5.3.3.
|
to use the same degree of care as with its own confidential information, which shall be at least a reasonable standard of care, to prevent disclosure of the Confidential Information and/or Notes, except to Supplier’s Personnel to the extent necessary to permit them to perform the Services as set forth in this Agreement.
|
5.4.
|
Supplier further agrees that prior to disclosing any Confidential Information to Supplier’s Personnel as set forth above, Supplier will advise such Supplier’s Personnel of the confidential and proprietary nature of the Confidential Information and Notes.
|
5.5.
|
Supplier shall notify Progress in writing of any unauthorized, negligent or inadvertent use or disclosure of or access to Confidential Information promptly following Supplier's discovery of such use, disclosure or access to the Confidential Information and shall promptly take measures to minimize the effect of such inadvertent use, disclosure or access and prevent its recurrence. Supplier acknowledges that money damages would not be a sufficient remedy for any breach of this Section. Accordingly, in the event of any such breach, in addition to any other remedies at law or in equity that Progress may have, it shall be entitled to equitable relief, including injunctive relief or specific performance or both.
|
5.6.
|
Nothing herein shall prevent Supplier from disclosing any Confidential Information as necessary pursuant to the lawful requirement of any governmental agency or by any subpoena, summons, order or other judicial process, provided that immediately on receipt of any order compelling such disclosure, Supplier has notified Progress in writing of such requirement to disclose and has cooperated with Progress’s reasonable, lawful efforts to resist, limit or delay disclosure. Disclosure of any Confidential Information pursuant to any such order or requirement shall not be deemed to render it non-confidential and Supplier’s obligations with respect to such Confidential Information shall not be changed or lessened by virtue of any such disclosure.
|
5.7.
|
Obligations in this Section shall, with respect to each disclosure of Confidential Information hereunder, continue for three (3) years from the date of each disclosure of Confidential Information. Nothing herein is intended to limit or abridge the protection of trade secrets under applicable trade secrets law, and trade secrets shall be maintained as such until they fall into the public domain.
|
5.8.
|
Upon completion or termination of this Agreement or upon request of Progress, Supplier shall promptly: (i) return all Confidential Information disclosed to it; and (ii) destroy (with such destruction certified in writing by Supplier) all Notes, without retaining any copy thereof. No such termination of the Agreement or return or destruction of the Confidential Information and/or Notes will affect the confidentiality obligations of Supplier or Supplier’s Personnel all of which will continue in effect as provided in this Agreement.
|
5.9.
|
Notwithstanding the foregoing, the parties agree that Supplier's obligations with respect to handling, disclosing, reproducing and using such Confidential Information are not applicable to any portion(s) of the Confidential Information which: (a) is or becomes generally available to the public other than as a result of disclosure by Supplier or Supplier’s Representatives; (b) was available on a non-confidential basis prior to its disclosure to Supplier and Supplier can verify such availability by written documentation; (c) is or becomes available to Supplier on a non-confidential basis from a source other than the Progress when such source is not, to the best of the Supplier’s knowledge, subject to a confidentiality obligation with the Progress, or (d) was independently developed by Supplier or Supplier’s Personnel, without reference to the Confidential Information, and Supplier can verify the development of such information by written documentation.
|
5.10.
|
Knowledge or information of any kind disclosed to Progress shall be deemed to have been disclosed without financial or other obligation on the part of Progress to hold the same in confidence, and Progress shall have full right to use and disclose such information without any compensation beyond that specifically provided by this Agreement.
|
5.11.
|
In addition to the other confidentiality obligations under this Agreement, Supplier shall not make any announcement, take or release any photographs (except for its internal operation purposes for performing the Services) or release any information concerning this Agreement or any part thereof or with respect to its business relationship with Progress to any member of the public or press, any business entity or official body except as required by applicable law, rule, injunction or administrative order, unless prior written consent is obtained from Progress.
|
5.12.
|
This Section will survive the expiration or termination of this Agreement.
|
6.
|
Intellectual Property.
|
6.1.
|
For purposes of this Agreement, “Intellectual Property” means all intellectual property and proprietary rights including without limitation all rights of inventorship and authorship, inventions, patents, patent applications, and know-how for any product, process, method, machine, manufacture, design, composition of matter, or any new or useful improvement thereof, as well as copyrights, trademark, trade dress and service mark rights and all rights in trade secrets, computer software, data and databases, and mask works.
|
6.2.
|
Progress Property
.
|
6.2.1.
|
“Progress Property” means: (1) Intellectual Property incorporated into the Services or any deliverables under this Agreement; (2) Intellectual Property conceived, produced or developed by Supplier, whether directly or indirectly or alone or jointly with others, in connection with or pursuant to Supplier’s performance of this Agreement; and (3) creations and inventions that are otherwise made by Supplier through the use of Progress’s or its Affiliates’ equipment, funds, supplies, facilities, materials and/or Confidential Information; provided, however, that any techniques, technology or tools independently developed by Supplier and not developed for or paid for by Progress shall not be the Intellectual Property of Progress.
|
6.2.2.
|
Supplier acknowledges that Progress claims and reserves all rights and benefits afforded under federal and international intellectual property laws in all Intellectual Property and Confidential Information furnished by Progress to Supplier hereunder and that Supplier is granted only a limited right of use of such Intellectual Property and Confidential Information as set forth in this Agreement.
|
6.2.3.
|
Assignment and Recordation of Progress Property
. Supplier agrees that:
|
6.2.3.1.
|
All copyrightable Intellectual Property, which are created by Supplier pursuant to this Agreement, shall be deemed "Works Made for Hire", as that phrase is defined in Section 101 of the United States Copyright Act, 17 U.S.C. § 101, and used in 17 U.S.C. § 201, on behalf of Progress, and Progress shall own all right, title and interest, including the worldwide copyright, in and to such materials;
|
6.2.3.2.
|
Supplier hereby assigns and agrees to assign to Progress all of its respective rights, title, and interest in Progress Property, including all rights of inventorship and authorship, all patents and patent applications, all copyrights, all trademark and service mark rights, all rights in trade secret and proprietary information, all rights of attribution and integrity and other moral rights and all other intellectual property rights of any type (collectively referred to herein as “IP Rights”);
|
6.2.3.3.
|
Supplier and Supplier's successors in interest will, at Progress's request and without further consideration, communicate to Progress any facts known to them respecting Progress Property, and testify in any legal proceedings, make all rightful oaths, sign all lawful papers and other instruments and generally do everything possible for title to the IP Rights in the Progress Property to be clearly and exclusively held by Progress; and
|
6.2.3.4.
|
Supplier agrees that it will not apply for any state, federal or other U.S. or foreign jurisdiction's registration of rights in any of the Progress Property and that it will not oppose or object in any way to applications for registration of same by Progress or others designated by Progress.
|
6.3.
|
Supplier’s Property
. If Supplier intends to exclude any Intellectual Property from the assignment in Section 6.2.3 above, it must list such Intellectual Property on Schedule G hereto, Supplier’s Reserved Intellectual Property, and obtain a Progress representative’s signature on Schedule G before incorporating Supplier’s Intellectual Property into the Services and/or any deliverables under this Agreement. Supplier will own approved “Supplier’s Reserved Intellectual Property” reflected on a properly executed Schedule G. However, Supplier grants Progress a fully-paid, perpetual, irrevocable, world-wide, non-exclusive license to: (a) prepare derivative works from Supplier’s Reserved Intellectual Property (using either Progress's own employees or independent contractors), (b) reproduce Supplier’s Reserved Intellectual Property and derivative works therefrom; and (c) make, use, distribute, perform, display and transmit Supplier’s Reserved Intellectual Property and derivative works and reproductions thereof, and to sublicense the rights granted to Progress in this paragraph.
|
6.4.
|
Third Party Intellectual Property
. Supplier shall not, without Progress’s written authorization, disclose or use, in Supplier’s work with Progress, any secret or confidential information of others, nor incorporate into the Services and/or any deliverables to Progress under this Agreement: (a) any software, applications, or components or other materials subject to Intellectual Property rights owned by any party (including Supplier) other than Progress (“Third Party Intellectual Property”); or (b) any software, applications, or components or other materials, which are functionally dependent upon Progress’s use of Third Party Intellectual Property. If Progress provides such written authorization, Supplier shall, in the absence of written agreement to the contrary, provide, at no expense to Progress, all licenses to such Third Party Intellectual Property and which Progress does not already have and which are reasonably necessary for Progress to lawfully make all uses of the Services and/or any deliverables contemplated in this Agreement
|
6.5.
|
This Section will survive the expiration or termination of this Agreement.
|
7.
|
Physical Property.
Unless otherwise agreed in writing, all tools, equipment or material furnished to Supplier or specially paid for by Progress, including but not limited to Software Product (defined in Section 5.1) and any related items, and any replacement thereof, or any materials affixed or attached thereto, shall be and remain Progress’s personal property. Supplier shall plainly mark such property as Progress’s property and it shall safely store such property separate and apart from Supplier's property. Supplier shall not substitute any Progress property without Progress’s written approval. Such property, while in Supplier's custody or control, shall be held at Supplier's risk, shall be kept insured by Supplier at Supplier's expense in an amount equal to the replacement cost with loss payable to Progress and shall be subject to removal at Progress's written request, in which event Supplier shall prepare such property for shipment and shall redeliver to Progress in the same condition as originally received by Supplier, reasonable wear and tear excepted, all at Supplier's expense.
|
8.
|
Inspections, Testing and Acceptance.
|
8.1.
|
All Services and/or any deliverables shall be subject to inspection and test by Progress and any of its customers at all times and places. Supplier must follow coding and testing standards and must pass quality assurance standards provided by Progress.
|
8.2.
|
If during any inspection, Progress determines that a nonconformity in the Services exists, and provided that the failure can be cured, Progress shall notify Supplier of the nature and extent of the nonconformity. Failure to provide the Services on time shall be considered a nonconformity. Supplier agrees to cure the nonconformity as promptly as possible, but in any event within five (5) business days of Supplier’s receipt of Progress’s notice of such nonconformity. Progress shall have seven (7) business days from the date Supplier re-performs the Services to determine whether the nonconformity has been corrected, and Progress may, but shall not be obligated to, verify the absence or existence of any additional or resulting nonconformities. If Progress determines that the nonconformity has not been corrected or that a nonconformity exists and cannot be cured, Progress may, at its option, terminate the applicable PO and/or SOW, and Supplier shall return to Progress all amounts previously paid by Progress for the Services provided pursuant to such PO and/or SOW. For the avoidance of doubt, in the event Progress terminates a PO and/or SOW due to one or more nonconformities in the Services, Progress shall have no liability to Supplier for any fees associated with Progress’s use of the Services under the applicable PO and/or SOW, including any payments for the Services due after the date of Progress’s notice of termination.
|
8.3.
|
Acceptance or rejection of the Services and/or any deliverables shall be made as promptly as practical after delivery, but failure to inspect and accept or reject the Services and/or deliverables or failure to detect defects by inspection, shall neither relieve Supplier from responsibility for all requirements relating to such Services and/or deliverables nor impose liabilities on Progress for its failure to identify such defects. Progress shall not be deemed to have accepted any Service unless and until Progress provides Supplier with written notice of its acceptance. No other method of acceptance, including those specified in Article 2 of the Uniform Commercial Code, shall apply to the acceptance of any Service hereunder. Payment for Services or payment of any fees associated with any Service shall not constitute acceptance of the same and shall be without prejudice to any and all claims of Progress against Supplier.
|
8.4.
|
Acceptance of the Services having nonconformities (material or otherwise) shall not relieve Supplier of the obligation to cure such nonconformities in accordance with the terms of this Agreement.
|
8.5.
|
If any of the Services and/or any deliverables under this Agreement, are found at any time prior to delivery to be defective, or otherwise not in conformity with the requirements of this Agreement, including any applicable specifications, Progress, in addition to such other rights, remedies and choices as it may have by agreement and/or by law, at its option and sole discretion, and at Supplier’s expense may: (a) reject and return such deliverables; (b) require Supplier to re-perform/replace the non-conforming Services and/or deliverables with Services and/or deliverables that conform to the requirements of this Agreement; and/or (c) take such actions as may be required to cure all defects and/or bring the Services and/or deliverables into conformity with all requirements.
|
9.
|
Warranties.
|
9.1.
|
Supplier warrants that:
|
9.1.1.
|
Supplier is a corporation duly organized, validly existing and in good standing under the laws of its incorporating jurisdiction;
|
9.1.2.
|
Supplier is duly authorized to execute and deliver this Agreement and to perform its obligations hereunder and consummate the transactions contemplated hereby and the performance of its obligations under this Agreement shall not conflict with any obligation Supplier may have to any third party;
|
9.1.3.
|
the Services will be in accordance with the PO and/or SOW at all times during the Term;
|
9.1.4.
|
Supplier has sufficient rights in its applications and equipment to perform the Services;
|
9.1.5.
|
Supplier’s applications and equipment shall be free from all liens and encumbrances;
|
9.1.6.
|
This section left blank intentionally
|
9.2.
|
Supplier further warrants:
|
9.2.1.
|
Services and/or any deliverables will be in strict accordance with the specifications, designs and other requirements (including performance specifications) approved or adopted in any PO and/or SOW;
|
9.2.2.
|
Services will be performed in a competent and professional manner in accordance with the highest standards and best practices of Supplier’s industry;
|
9.2.3.
|
All Services and/or deliverables sold will be free of any claims of any nature and by any third person, including but not limited to claims of Intellectual Property infringement and/or misappropriation or a contractual right of any third party and Supplier will convey clear title to Progress; and
|
9.2.4.
|
Supplier has obtained, or will timely obtain, any and all permits, licenses and third party consents to provide the Services.
|
9.3.
|
The warranties set forth in this Section are in addition to any warranty otherwise offered by the Supplier or its suppliers (all of which shall pass through to Progress) or implied by law. All warranties shall survive any inspection, acceptance or delivery of or payment for the Services and shall inure to the benefit of Progress, its Affiliates and their respective successors and assigns. Notwithstanding the pass-through of Supplier's warranties relating to their third party suppliers, Progress shall not be required to seek a remedy against any of Supplier's third party suppliers and such warranties are in addition to, and not in lieu of, Supplier's warranties as to the Services, including without limitation all of Suppliers' software from third party suppliers.
|
9.4.
|
The warranties in this Section shall apply for a period of twenty—four (24) months from the date Supplier completes its engagement. If any of the Services and/or deliverables under this Agreement are found to be defective during the warranty period, then in addition to other rights, remedies and choices it may have under this Agreement or at law or equity, Progress, at its option and sole discretion, and at Supplier’s expense may: (a) reject and return such deliverables; (b) require Supplier to re-perform/replace the non-conforming Services and/or deliverables with Services and/or deliverables that conform to the requirements of this Agreement; and/or (c) take such actions as may be required to cure all defects and/or bring the Services and/or deliverables into conformity with all requirements. Any attempt by Supplier to limit, disclaim or restrict any such warranties or any remedies of Progress, by acknowledgment or otherwise, in accepting or performing this Agreement, shall be null, void and ineffective without Progress's written consent.
|
10.
|
Indemnities.
|
10.1.
|
General
. Supplier shall take all necessary precautions to prevent the occurrence of any injury to persons, property or the environment during the progress of work and ensure that Supplier’s Personnel neither pose a threat to Progress’s safe work environment nor the integrity of its business operations. Except to the extent that any injury or damage is due solely and directly to Progress, Supplier shall release, defend, hold harmless and indemnify Progress, its directors, officers, employees, agents, representatives, successors and assigns (collectively, “Progress Indemnitees”) from and against any and all suits, actions or proceedings, at law or in equity, and from any and all claims, demands, losses, judgments, damages, costs (including reasonable attorneys’ fees), fines, penalties, expenses or liabilities, including without limitation claims for personal injury or property, resulting from or in any way connected with any act or omission of Supplier’s Personnel, Supplier, its agents, employees or subcontractors, whether acting in the course of their employment or otherwise, in connection with, but not limited to, all of the representations, warranties or covenants contained in this Agreement. In addition, Supplier shall indemnify, defend and hold Progress harmless from and against any claims, costs or expenses, including, but not limited to, reasonable attorneys' fees, arising out of or in connection with any employment claims, i.e., workers compensation, harassment or discrimination claims, or breaches of Sections 5, 17 or 18 hereto by Supplier or Supplier's Personnel. Supplier agrees to include this clause in all related subcontracts. Supplier further agrees to indemnify Progress for any attorneys’ fees or other costs Progress incurs in the event that Progress has to file a lawsuit to enforce any indemnity or additional insured provisions of this Agreement.
|
10.2.
|
Intellectual Property
. Supplier shall indemnify, defend and hold Progress harmless from any suit or proceeding brought against Progress or its customers based on any claim that any Services, and/or any deliverables furnished under this Agreement, as well as any device or process necessarily resulting from the use thereof, constitutes an infringement of any patent, copyright or other Intellectual Property right. If notified promptly in writing and given authority, information and assistance, at Supplier's expense, for the defence of same, Supplier shall pay all damages, costs and expenses incurred or awarded therein, including, but not limited to, reasonable attorneys’ fees. If use of any Service and/or any deliverable is enjoined, Supplier shall, at its own expense and in the following order, subject to commercial practicality, either: a) procure for Progress the right to continue using such Service and/or deliverable; b) replace same with a non-infringing equivalent; or c) remove such process or deliverable or halt such Service and refund the purchase price and, if applicable, the transportation and installation costs thereof. If Supplier cannot remedy the situation within a reasonable period of time, then at Progress’s election and request, Supplier shall reimburse Progress for all charges paid pursuant to the PO and/or SOW pertaining to such Services or reimburse Progress for the full cost to replace the infringing Services or obtain replacement services. Notwithstanding any such reimbursement, replacement or modification, Supplier's obligations to defend and indemnify Progress shall not be diminished or eliminated.
|
10.3.
|
In the event of a claim by a third party for which Progress or a Progress Indemnitee seeks indemnification hereunder, Progress or its legal representative shall promptly notify Supplier in writing of any such claim and forward all related documents to Supplier. Supplier shall then defend the case at its own expense, however the Progress Indemnitees reserve the right to be represented by counsel (at the expense of such Progress Indemnitees) at any proceeding or settlement discussions related thereto. Supplier shall have sole control of the defence of any such claim, provided that:
|
10.3.1.
|
Progress Indemnitees and their counsel shall have the right at their expense to participate in the defence of the claim;
|
10.3.2.
|
Supplier shall not agree to any settlement that imposes restrictions on any Progress Indemnitee or requires any action by any Progress Indemnitee without Supplier first obtaining such Progress Indemnitee's written consent; and
|
10.3.3.
|
if Supplier fails or elects not to either defend or settle any such claim, the Progress Indemnitees may defend and/or settle such claim and Supplier shall pay to such Progress Indemnitees any and all damages and expenses (including attorney's fees) incurred and/or amounts paid in settlement by such Progress Indemnitees with respect to such claim.
|
10.4.
|
The foregoing indemnities will not be limited in any manner whatsoever by any required or other insurance coverage maintained by Supplier.
|
10.5.
|
This Section will survive the expiration or termination of this Agreement.
|
11.
|
Compliance with Laws.
Supplier represents, warrants and certifies that:
|
11.1.
|
It will comply with all applicable laws, including, but not limited to, any national, international, federal, state, provincial or local law, treaty, convention, protocol, common law, regulation directive or ordinance and all lawful orders, including judicial orders, rules and regulations issued thereunder, including without limitation those dealing with the environment, health and safety, records retention, international communications, and/or the exportation of technical or personal data;
|
11.2.
|
No Services and/or deliverables supplied under this Agreement have been or will be produced utilizing forced, indentured or convict labor or utilizing the labor of persons in violation of the minimum working age law in the country of manufacture or in any country in which the Services are provided or in violation of minimum wage, hour of service or overtime laws in the country of manufacture or any country in which Services are provided. If any such labor is determined by Progress to have been used, Progress shall have the right to immediately terminate the Agreement without further compensation to Supplier;
|
11.3.
|
Supplier shall comply with any provisions, representations or agreements or contractual clauses required to be included or incorporated by reference or operation of law in the Agreement resulting from: (i) Equal Opportunity (Executive Order 11246 as amended by Executive Orders 113575 and 10286 and applicable regulations promulgated pursuant thereto); (ii) Employment of Veterans (Executive Order 11701 and applicable regulations promulgated pursuant thereto); (iii) Employment of the Handicapped (Executive Order 11758 as amended by Executive Order 11867 and applicable regulations promulgated pursuant thereto); (iv) Employment Discrimination Because of Age (Executive Order 11141 and applicable regulations promulgated pursuant thereto); and (v) Utilization of Disadvantaged and Business Enterprises (Executive Order 11625, Public Law 95-507 and applicable regulations promulgated pursuant thereto);
|
11.4.
|
Supplier certifies that it is in compliance with the requirements for non-segregated facilities set forth in 41 C.F.R. Chapter 60-1.8;
|
11.5.
|
Supplier shall comply with all laws dealing with improper or illegal payments, gifts and gratuities, and Supplier agrees not to pay, promise to pay or authorize the payment of any money or anything of value, directly or indirectly, to any person for the purpose of illegally or improperly inducing a decision or obtaining or retaining business in connection with this Agreement;
|
11.6.
|
Supplier agrees that if the Services it provides will have a material impact on Progress's ability to report financial information in an accurate and timely manner, that Supplier will certify and ensure that it is in compliance with Section 404 of the Sarbanes Oxley Act of 2002 and that Supplier will supply to Progress, in a manner specified by Progress, documents attesting that Supplier has in place controls that are effective and have been tested by a third party, such as an outside auditor, that monitor and ensure compliance with Section 404 of the Sarbanes-Oxley Act of 2002; and
|
11.7.
|
Supplier further agrees to provide at Progress’s request certificates relating to any applicable legal requirements or to update any and all of the certifications, representations and warranties under this Agreement, in form and substance satisfactory to Progress.
|
12.
|
Liability.
|
12.1.
|
Neither Supplier nor Progress shall be liable to the other party for any indirect, incidental, special or consequential damages (including, without limitation, any damages arising from loss of use or lost business, revenue, profits, data or goodwill) arising in connection with this Agreement, whether in an action in contract, tort, strict liability or negligence, or other actions, even if advised of the possibility of such damages, except as provided under the terms of this Agreement. Neither Supplier's nor Progress’s liability to the other party for direct damages shall exceed the total amount paid or payable by Progress under this Agreement. The foregoing exclusions of and limitations on liability shall not apply to:
|
12.1.1.
|
amounts payable in respect of indemnification claims;
|
12.1.2.
|
damages arising from or relating to:
|
12.1.2.1.
|
breaches of the Confidentiality Section of this Agreement,
|
12.1.2.2.
|
misappropriation of Progress Data, or
|
12.1.2.3.
|
a party's willful misconduct or gross negligence; or
|
12.1.3.
|
the cost of procurement of substitute goods or services in the event that Supplier fails to provide the Services specified in a particular PO and/or SOW.
|
12.2.
|
This Section will survive the expiration or termination of this Agreement
|
13.
|
Insurance.
|
13.1.
|
During the Term of this Agreement, Supplier, shall at its own cost, obtain and keep in force for the benefit of Supplier and Progress all insurance/and or bonds required by law and the following insurance to be issued by insurance carriers with a minimum rating in A.M. Best’s of A:VIII or better with minimum limits as set forth below:
|
13.1.1.
|
Worker’s Compensation and Employers Liability Insurance per statutory requirements;
|
13.1.2.
|
Employer’s Liability with coverage not less than $500,000 combined single limit per occurrence;
|
13.1.3.
|
Commercial General Liability with minimum limits for Bodily Injury and Property Damage on an occurrence basis of: $ 2,000,000 per occurrence; $ 4,000,000 aggregate;
|
13.1.4.
|
Business Automobile Liability Insurance covering all vehicles used in connection with the work and covering Bodily Injury and Property Damage with a minimum limit equal to: $ 1,000,000 per accident;
|
13.1.5.
|
Professional Errors and Omissions Insurance covering the activities of Supplier written on a “claims made” basis with a minimum limit equal to: $5,000,000 per occurrence; and
|
13.1.6.
|
This section left blank intentionally
|
13.2.
|
Additional Insurance Requirements
.
|
13.2.1.
|
It is the intent of both parties to this Agreement that all insurance purchased by Supplier in compliance with this Agreement will be primary to any other insurance owned, secured, or in place by Progress, which insurance shall not be called upon by Supplier's insurer to contribute in any way. Supplier shall secure endorsements to this effect from all insurers of such policies.
|
13.2.2.
|
At Progress’s request, Supplier shall furnish Progress with certificates of insurance and with copies of original endorsements effecting coverage required by this clause. The certificates and endorsements shall identify Progress as an additional insured and shall be signed by a person authorized by that insurer to bind coverage on its behalf.
|
13.2.3.
|
All policies provided for herein shall expressly provide that such policies shall not be cancelled, terminated or altered without sixty (60) days prior written notice to Progress.
|
13.2.4.
|
All insurance specified in this Section shall contain a waiver of subrogation in favor of the Progress, its Affiliates and their respective employees for all losses and damages covered by the insurance required by this Section.
|
13.3.
|
Any failure by Supplier to comply with this provision shall be deemed to be a material breach of this Agreement entitling Progress to terminate this Agreement and any pending PO and/or SOW without liability to Supplier as described in the Termination Section.
|
13.4.
|
This Section will survive the expiration or termination of this Agreement.
|
14.
|
Relationship of the Parties; Assignment and Subcontracting.
|
14.1.
|
This Agreement is not intended to create, nor should it be construed as creating, an agency, joint venture, partnership or similar relationship between the parties. Neither Supplier’s Personnel, Supplier nor its agents, subsidiaries, affiliates and employees are in any way the legal representatives or agents of Progress, and neither shall have any right or authority to assume or create any obligation of any kind expressed or implied in the name of or on behalf of Progress.
|
14.2.
|
This Agreement and any rights hereunder (except where expressly provided in a signed writing to the contrary) are non-exclusive and non-assignable. Any assignment by one party without the prior written consent of the other party shall be void; provided that Progress may assign or transfer its rights and obligations under the Agreement to any Affiliate of Progress upon written notice to Supplier. Supplier shall notify Progress in writing in advance of any proposed change in its ownership, control or management and shall not without the written consent of Progress delegate the performance of its obligations under this Agreement to any firm or person (other than a principal, officer or regular employee of Supplier). Notwithstanding the above, upon written notification to the other party, either party may assign this Agreement to any entity which acquires all of (or substantially all of) the assets or voting stock of such entity.
|
14.3.
|
Supplier may not subcontract or delegate any Services without Progress’s prior written consent
|
15.
|
.
Disputes.
|
15.1.
|
In the event of any dispute or disagreement between the parties hereto either with respect to this Agreement or the subject matter thereof, each party will appoint a representative whose task it will be to meet with the representative appointed by the other party for the purpose of resolving such dispute or disagreement. No formal proceedings for the resolution of such dispute or disagreement may commence until either representative concludes in good faith that an amicable resolution through continued negotiations of the matter does not appear likely. Pending resolution of any such dispute or disagreement by settlement or final judgment (including disputes not yet in litigation), this Agreement shall remain in full force and effect, and Supplier shall continue to perform its obligations under this Agreement.
|
15.2.
|
Notwithstanding the foregoing, either party may seek preliminary restraining orders, preliminary injunctions or other equitable relief from a court of competent jurisdiction prior to commencing or pending the completion of the procedure set forth herein.
|
15.3.
|
This Section will survive the expiration or termination of this Agreement.
|
16.
|
Governing Law and Venue.
|
16.1.
|
Each party’s rights and obligations under or in connection with this Agreement shall be governed by the laws of the Commonwealth of Massachusetts, U.S.A. (excluding its conflict of laws rules). The parties exclude application of the United Nations Convention on Contracts for the International Sale of Goods.
|
16.2.
|
The parties shall attempt amicably to resolve any controversy, dispute or difference arising out of this Agreement, failing which either party may initiate litigation only in the United States District Court for the District of Massachusetts or, if such court lacks subject matter jurisdiction, in the Superior Court of Massachusetts, Middlesex County. The parties submit to personal jurisdiction in said courts and waive any defenses regarding venue or forum non conveniens.
|
16.3.
|
The parties hereby irrevocably waive any and all rights to trial by jury in any legal proceeding arising out of or relating to this Agreement.
|
17.
|
Conflict of Interest; Progress Policies.
Supplier represents and warrants that: (a) it has no and will not create a conflict of interest which would prevent Supplier from acting in the best interests of Progress or perform any provision of this Agreement and that such a situation will not exist during the Term; (b) it will not or has not entered into any contract or agreement, or executed any document whatsoever, that will in any manner prevent it from: (1) giving Progress the exclusive benefit of services under this Agreement; (2) disclosing and assigning ideas, inventions, computer software, trade secrets and other Intellectual Property as provided in Section 6 of this Agreement; or (3) performing any other provision of this Agreement; and (c) it will not knowingly incorporate confidential information of any person or entity not a party to this Agreement into any Services or deliverables furnished to Progress without prior written notice to Progress.
|
18.
|
Expiration, Termination and Suspension.
|
18.1.
|
Expiration
. This Agreement shall automatically expire on the Expiration Date set forth in Section 2 unless specifically renewed prior thereto by mutual written consent by the parties.
|
18.2.
|
Termination by Mutual Agreement
. This Agreement and any PO and/or SOW hereunder may be terminated before the Term by mutual written consent by the parties.
|
18.3.
|
Termination for Convenience
. Progress may terminate all or any part of this Agreement and any PO and/or SOW hereunder at any time by written notice to Supplier specifying the extent of termination and the effective date of the termination.
|
18.4.
|
Termination for Insolvency
. If Supplier ceases to conduct its operations in the normal course of business, including any inability to meet its obligations as they mature, if any proceeding under the bankruptcy or insolvency laws is brought by or against Supplier, if a receiver is appointed or applied for, or if an assignment for the benefit of creditors is made by Supplier, Progress may terminate all or any part of this Agreement without liability, except for Services performed or deliverables delivered prior to termination or for deliverables covered by this Agreement then completed and later delivered in accordance with the terms of the Agreement.
|
18.5.
|
Termination for Default
. Time is of the essence in this Agreement. Except for delay, which is due to causes beyond the reasonable control and without the fault or negligence of Supplier and its suppliers (lasting not more than ten (10) business days), Progress may, by written notice of default, terminate the whole or any part of this Agreement in any one of the following circumstances if:
|
18.5.1.
|
Supplier fails to perform within the time specified herein or any written extension granted by Progress or fails to make progress as to endanger performance of this Agreement;
|
18.5.2.
|
Supplier breaches, violates or Progress finds to be untrue, any of the certifications, representations and warranties set forth in this Agreement, including Section 9; or
|
18.5.3.
|
Supplier fails to comply with any other terms and conditions of this Agreement.
|
18.6.
|
Suspension
. Progress may at any time, by written notice to Supplier, suspend performance of work hereunder, specifying the date of suspension and the estimated duration. Upon receiving any such notice of suspension, Supplier shall promptly suspend performance of work hereunder to the extent specified, and during the period of such suspension, properly care for and protect all work in progress and materials, supplies and equipment related to the work. Progress may at any time withdraw the suspension by written notice to Supplier specifying the effective date and scope of withdrawal, and Supplier shall resume diligent performance of the work for which the suspension is withdrawn on the specified effective date of withdrawal.
|
18.7.
|
Obligations Upon Expiration or Termination
. Neither Progress nor Supplier shall be liable by reason of the termination, expiration or non-renewal of this Agreement to the other for compensation, reimbursement or damages on account of the loss of prospective or anticipated revenues or on account of expenditures, investments, leases or commitments in connection with the business or good will of Progress or Supplier or otherwise. However, this limitation is not intended to limit the liability of either party for defaults under Section 18.5. Upon expiration or after receipt of a notice of termination, Supplier shall immediately:
|
18.7.1.
|
stop work as directed in the notice;
|
18.7.2.
|
place no further subcontracts or POs for materials, services or facilities hereunder, except as necessary to complete the continued portion of this Agreement; and
|
18.7.3.
|
terminate all subcontracts to the extent they relate to work terminated.
|
19.
|
Release of Claims.
In consideration of the execution of this Agreement by Progress, Supplier hereby releases Progress from all claims, demands, contracts and liabilities, if any, as of the date of execution of this Agreement, except indebtedness, which may be owing upon a written contract signed by Progress.
|
20.
|
Waiver and Failure to Enforce.
No claim or right arising out of a breach of this Agreement can be discharged in whole or in part by a waiver or renunciation unless the waiver or renunciation is supported by consideration and is in writing signed by the aggrieved party. Progress’s failure to enforce at any time or for any period of time any provision hereof shall not be construed to be a waiver of such provision or of the right to Progress thereafter to enforce each and every such provision.
|
21.
|
Notices.
Notices and other communications between the parties shall be in English and shall be deemed to be validly given if transmitted in writing, by registered mail, overnight courier or personal delivery, in all cases signature required, to the other party at the address and to the contact set forth below. Either party may change its address by giving notice to the other party as provided for herein.
|
Progress
|
Supplier
|
|||
Name:
|
Nina Viswanathan
|
Name:
|
Lisa Hamilton
|
|
Address:
|
14 Oak Park Drive, Bedford, MA 01730
|
Address:
|
201 Spear Street, Suite 11000, San Francisco, CA 94105
|
|
Title:
|
Field Enablement Manager
|
Title:
|
||
Phone:
|
781.280.4462
|
Phone:
|
415.526.2290
|
|
Fax:
|
Fax:
|
|||
Email:
|
nviswana@progress.com
|
Email:
|
lhamilton@mcorpconsulting.com
|
22.
|
Acceptance of Terms and Conditions.
The parties agree to be bound by and to comply with all the terms and conditions of this Agreement, including any supplements thereto and other documents referred to in this Agreement. This Agreement does not constitute an acceptance by Progress of any offer to sell, any quotation or any proposal.
|
23.
|
Execution and Modification.
|
23.1.
|
This Agreement and all documents incorporated herein by reference constitute the complete and final agreement concerning the subject matter hereof. Any representations, terms or conditions not incorporated herein shall not be binding upon either party. No course of prior dealings between parties, no course of performance and no usage of trade shall be relevant to determine the meaning of this Agreement even though the accepting or acquiescing party has knowledge of the performance and opportunity for objection. The invalidity, in whole or in part, of any of the foregoing Sections of this Agreement shall not affect the remainder of such Sections or any other Section of this Agreement.
|
23.2.
|
The parties negotiated this Agreement in good faith. Any ambiguities in the language of this Agreement are not to be construed or resolved against either party based on the fact that such party was principally responsible for drafting this Agreement.
|
23.3.
|
This Agreement wholly cancels, terminates and supersedes all previous negotiations, commitments and writings between the parties in connection therewith. This Agreement shall not become effective or binding upon Progress until signed by an authorized representative of Progress at which time it will be deemed retroactively effective upon the Effective Date.
|
23.4.
|
No change, modification, extension, renewal, ratification, rescission, termination, notice of termination, discharge, abandonment or waiver of this Agreement or any of the provisions hereof; nor any representation, promise or condition relating to this Agreement shall be binding upon Progress unless made in writing and signed by an authorized representative of Progress. Any modifications to or acknowledgments sent under this Agreement may be sent via postal service or by electronic means. These electronic transmissions shall be deemed to satisfy any and all legal formalities requiring that agreements be in writing. Neither party shall contest the validity or enforceability of any such electronic transmission under any applicable statute of frauds. Computer maintained records when produced in hard copy form shall constitute business records and shall have the same validity as any other generally recognized business records.
|
24.
|
In the event any provision of this Agreement, in whole or in part, is invalid, unenforceable or in conflict with the applicable laws or regulations of any jurisdiction, such provision will be replaced, to the extent possible, with a provision which accomplishes the original business purposes of the provision in a valid and enforceable manner, and the remainder of this Agreement will remain unaffected and in full force.
|
25.
|
Neither party shall be responsible for failure to perform its obligations if such failure is as a result of a force majeure condition, including without limitation fire, flood, earthquake, storm, hurricane (or other natural disaster), war, invasion, act of foreign enemies, hostilities (regardless of whether war is declared), civil war, rebellion, revolution, insurrection, military or usurped power or confiscation, terrorist activities, government sanction, blockage, embargo, labor dispute, strike, lockout or interruption or failure of electricity or telephone service. If a party asserts force majeure as an excuse for failure to perform its obligations, then the nonperforming party must prove that it took reasonable steps to minimize delay or damages caused by foreseeable events, that it substantially fulfilled all non-excused obligations, and that the other party was timely notified of the likelihood or actual occurrence of an event described above.
|
Schedule
|
Subject
|
A
|
Statement of Work or Purchase Order
|
E
|
Progress Travel and Expense Policy
|
G
|
Supplier’s Reserved Intellectual Property
|
Breakfast
|
Lunch
|
Dinner
|
$20
|
$30
|
$50
|
o
|
Business Meals: 15%-20% of the pre-tax bill.
|
o
|
Courtesy Shuttle: $1-$2 per person or $4-$5 for a group.
|
o
|
Taxi: 15% of the total fare.
|
o
|
Porter/Doorman: $1-$2 for calling a taxi.
|
o
|
Valet Parking: $1-$2 for retrieving a car.
|
o
|
Bell Staff: $1-$2 per bag.
|
o
|
Room Service: 15% if gratuity or service charge is not already included.
|
o
|
Maid Service: $2-$3 per night.
|
o
|
·
|
Touchpoint Mapping® On-Demand (including related documentation and methodologies)
|
·
|
Touchpoint Mapping® (and the related concepts as outlined in the copyrighted Touchpoint Metrics white paper of the same name)
|
·
|
Customer Touchpoint Mapping (or “CTM”) (and the related concepts as outlined in the copyrighted Touchpoint Metrics white paper of the same name)
|
·
|
Brand Gap Analysis (and the related concepts as outlined in the copyrighted sell sheet of the same name)
|
·
|
The Performance Dashboard (and the related concepts as outlined in the copyrighted MCorp. Touchpoint Performance Dashboard presentation of the same name)
|
·
|
Loyalty Mapping® (and the related concepts as outlined in the copyrighted sell sheet of the same name)
|
·
|
Customer Experience Mapping methodology, including Touchpoint Mapping, Brand Mapping, and Loyalty Mapping
|
·
|
Brand MappingSM, Touchpoint Mapping®, Touchpoint Metrics®, MCorp.® and Loyalty Mapping® are registered trademarks of Touchpoint Metrics, Inc., and all rights are reserved in perpetuity.
|
1.
|
Application Partners with the largest installed base broken out by:
|
a.
|
Highest percentage base who have upgraded (n=10)
|
b.
|
Lowest percentage base who have upgraded (n=10)
|
2.
|
CPS stakeholders (n=10)
|
3.
|
Progress internal audiences (n=10)
|
-
|
Project Kick-Off
|
-
|
CPS Team/Stakeholder Interviews (~10)
|
-
|
Issues Analysis/Goal Alignment
|
-
|
Data Requests/Info Gathering
|
-
|
Pilot scoping and definition
|
-
|
Project Plan and schedule
|
-
|
Desk Research: Business, Market and Existing Customer Data Analysis (Application Partners), data analytics is out of scope
|
-
|
Qualitative Research: Internal Interviews or Workshop format (~10 Respondents)
|
-
|
Qualitative Research: Application Partners: Phone interviews or Online Focus Group
|
|
(~20 Participants)
|
-
|
Qualitative Research Summarization and Reporting
|
-
|
Business and Qualitative Research Synthesis
|
-
|
Hypothesis and Problem Statement Alignment
|
-
|
Strategy Definition: Working Strategy Session
|
-
|
Business Case Creation
|
-
|
Program Design: Framework, Metrics (including partner NSAT and NPS) and Rollout Plan
|
-
|
Working Session: Roadmap Validation and Tactical Initiatives Prioritization
|
-
|
Implementation Roadmap Creation
|
-
|
Final Program Design and Rollout Plan
|
-
|
Executive/Stakeholder Presentation(s)
|
Phase I:
|
Phase 1 Immersion
|
$12,500
|
Phase II:
|
Phase 2 Insights
|
$32,000
|
Phase III:
|
Phase 3 Strategy
|
$23,000
|
Phase IV:
|
Phase 4 Design
|
$27,000
|
Total Fees:
|
$94,500
|
For the Company
MICHAEL HINSHAW
|
Accepted for Client
DANIEL HECKMAN
|
|
Signature
|
Signature
|
|
Michael Hinshaw
President
|
Daniel Heckman, Vice President, Field Enablement
01/08/14
|
|
1/8/2014
|
Date
|
a.
|
Form of Relationship
: Contractor has one or more Clients to whom Contractor intends to provide the Company’s Services.
|
b.
|
Clients
: A Client is any entity to which the Contractor has agreed to provide certain services, and which has agreed with Contractor to have the Company perform Services in support of Contractor performing services for Client.
|
c.
|
Services
: During the term of the Agreement, the Company agrees to provide services to Contractor’s Clients which Contractor may authorize by the execution of a Statement of Work (“SOW”) as described in this Agreement.
|
d.
|
Term
: This Agreement will commence on the Effective Date and remain in full force until terminated as provided for herein.
|
e.
|
Standard Billing Rates:
The Company’s standard billing rates are outlined below. If not stated otherwise in an SOW governing services provided by the Company, these rates will be in effect for all services provided under this Agreement.
|
Labor Category
|
Hourly Rate ($)
|
|
Admin/Support Staff
|
$110
|
|
Analyst
|
$225
|
|
Consultant
|
$375
|
|
Project Leader
|
$475
|
|
Partner/Engagement Leader
|
$650
|
f.
|
Out-of-Pocket Expenses:
Expenses incurred in the performance of services provided by the Company will be reimbursed by the Contractor within 5 days of reimbursement for those expenses by the Contractor from the Client, unless specifically agreed otherwise in an SOW. The Company will identify such expenses and support those expenses by evidence (invoices, receipts, or other payment documents). The following expenses may in particular be considered eligible for reimbursement under this Agreement: travel-related expenses for personnel assigned to services, cost of consumables and supplies directly attributable to the services, cost of national and/or international communication (telephone, internet) and postage directly attributable to the services, costs of goods and services purchased specifically for the implementation of the services; costs of production, printing and distribution of materials for workshops, and costs deriving directly from specific requirements of this Agreement.
|
g.
|
Statements of Work
: Each SOW shall be issued in accordance with the terms of this Agreement, and will contain, where appropriate, the project name, description, budget estimates, payment schedules, billing rates, and provisions for out-of-pocket expenses. All SOWs or other forms of written authorization shall be subject to the terms and conditions set forth in this Agreement. In the event any conditions contained in an SOW conflict with any terms, conditions, or clauses in this Agreement, or there is an ambiguity between the SOW and this Agreement, then the provisions of this Agreement shall govern, unless clearly and specifically stated otherwise in the SOW.
|
h.
|
Timelines
: Time is of the essence in completing SOWs on time and on budget. Contractor acknowledges that delays on its part may adversely affect schedules and costs. Conversely, Company acknowledges that delays on its part may adversely affect schedules, costs and payment timeliness.
|
i.
|
Approvals
: Authorized approval sources for Contractor are as set forth in each SOW. Contractor shall review and approve all materials in writing. Contractor’s approval by any tangible medium (e.g. email) will be considered final approval. Once approved, any changes will be subject to revisions as articulated in Section “j” of this Agreement
|
j.
|
Responsibility as to Style and Content
: Contractor is responsible for the truth, accuracy, and legality of all content provided to the Company. Contractor shall indemnify, hold harmless, and defend the Company against any and all damages, liabilities, expenses (including attorney’s fees), resulting from any claims, actions, or suits made by a third party as a result of: (a) claims, representations, statements or depictions in materials prepared or submitted by Contractor (“Contractor Materials”); (b) defects in the Contractor’s products or services; (c) allegations that copyright, trademark, patent or other rights of a third party have been infringed or violated by the Company as a result of the Company’s use of Contractor Materials. In any event, the Company shall cease all use of, and return to Contractor, all Contractor Materials immediately upon written request by Contractor for any reason. Any indemnification obligations of Contractor set forth in this Agreement shall be subject to the following conditions: (i) the Company shall notify Contractor in writing promptly upon learning of any claim or suit for which indemnification is sought; (ii) Contractor shall have control of the defense or settlement; and (iii) the Company shall reasonably cooperate with the defense, at Contractor's expense.
|
k.
|
Responsibility as to Overall Relationship
: Subject to Section (n) of this Agreement, Contractor is responsible for providing access to internal resources and records as required to fulfill the terms of this Agreement and each SOW, as well as timely and accurate responses to all communications from the Company. The Company is responsible for meeting defined timelines and budgets, and for fulfilling the expectations of Contractor as defined in this Agreement and approved elements of each SOW.
|
l.
|
Revisions
: Any and all changes requested to Approved Materials or an SOW are subject to an Estimate Addendum (“EA”) to the related SOW. EA note requested changes, estimate their cost, and must be mutually agreed in writing by the Company and Contractor in order to continue. Through an approved EA, Contractor will authorize revisions and any additional services to each SOW in advance of any costs being accrued. Services required to complete any additional work beyond the scope of each SOW will be based on the Company’s then current fee schedules, or as specifically stated otherwise in the SOW.
|
m.
|
Sales Tax
: Sales tax will be billed as applicable under California State law.
|
n.
|
Termination
: Either party may terminate this Agreement by providing written notice to the other party in the event that the other party has failed to cure a material breach within fifteen (15) days after written notice of such breach by the non-breaching party. Within thirty days of the date of termination of this Agreement, the Company will invoice and be paid for all outstanding fees based on actual time incurred and the Company’s standard billing rates per Section “c” of this Agreement, if not detailed otherwise in the SOW governing the services provided. Within thirty days of the date of termination of this Agreement, the Company will invoice and be paid for all outstanding out-of-pocket costs incurred.
|
o.
|
License to Use Deliverables
: Upon final payment of all fees incurred under this Agreement, the Company grants Contractor’s Client’s a limited, revocable and nonexclusive license to access and make internal use of final deliverables, strategic plans, research findings, report data and recommendations.
All deliverables, including but not limited to draft plans, survey instruments, planning methodologies, processes, verbiage (e.g. plan copy), interface design or code (e.g. online survey instruments, source code), and other materials or processes developed or previously owned by the Company and used in the creation of any plans or materials, remain the sole property of the Company. All Company property is protected under applicable federal copyright and trademark laws.
Any material or content which Company permits Clients to use is under a grant of this license, and Contractor must retain all copyright and other proprietary notices on the material or content, and contractually obligate Client to do the same.
|
p.
|
Confidentiality
: For purposes of this Agreement, “Confidential Information” means information that a party desires to protect against disclosure, which is designated as confidential in writing at the time of disclosure or which, by its context, should reasonably be understood to be confidential. Both Parties to this Agreement acknowledge that Confidential Information includes, but is not limited to, business plans, trade secrets, customer information, methodology and processes, etc., and that Confidential Information may be exchanged by the parties. Therefore, both parties hereby agree to hold all Confidential Information received from the other party in strict confidence, and will strictly control all access to and distribution of any Confidential Information of the other party.
|
q.
|
Governing Law/Jurisdiction
: This agreement, in its validity, construction and performance, shall be governed in all respects by the laws of the county of San Francisco, state of California, United States of America.
|
r.
|
Modification
: This writing contains the entire agreement of the parties. No representations, understandings or prior agreements were made or relied on by either party, other than those expressly set forth. No agent, employee, or other representative of either party is empowered to alter any of the terms hereof. Any alteration or modification of this Agreement shall be effective only if completed in writing and signed by an approved signatory of both parties.
|
s.
|
Warranty
: The Company warrants that (i) it has the right to provide the services hereunder, (ii) in providing the services and any deliverables, the Company has not improperly used or misappropriated patent, copyright, trademark, trade secret or other proprietary rights of any third party, (iii) the deliverables will meet the descriptions and requirements set forth in the SOW, and (iv) the Company will perform the services in a good and workmanlike manner.
|
t.
|
Insurance
: The Company shall maintain, at its own expense, sufficient insurance to cover its performance of services hereunder, including but not limited to, workers’ compensation insurance when required by law.
|
u.
|
Counterpart
: This Agreement may be executed in counterparts by the parties and shall become effective when all parties hereunder have executed the Agreement. Signatures may originally be transmitted by facsimile or email.
|
v.
|
Miscellaneous
: The invalidity or unenforceability of any provision of this Agreement shall not affect the validity or enforceability of any other provision, the remaining provisions being deemed to continue in full force and effect. Any notice to a party required or permitted hereunder shall be sufficiently given only when provided in writing, and either personally delivered or sent via certified or registered mail or recognized overnight delivery service to the party's address indicated herein. A failure by either party to enforce any right under this Agreement shall not at any time constitute a waiver of such right or any other right, and shall not modify the rights or obligations of either party under this Agreement.
|
For the Company
|
Accepted for Contractor
|
|
Signature
|
Signature
|
|
MICHAEL HINSHAW | STEPHEN HODGSON | |
Michael Hinshaw, President
|
Stephen Hodgson, President
|
|
December 2, 2013
|
12/9/2013
|
|
Date
|
1.
|
Define (and codify) the current member experience, at both the touchpoint and attribute levels, to identify specific strengths as well as gaps between expectations and actual experience;
|
2.
|
Articulate and increase emotional brand engagement, influencing retention and advocacy – as well as desired financial behaviors - between Client and its members;
|
3.
|
Provide Client team with common tools, including artifacts such as Journey Maps, and an increased understanding of and functional expertise around the discipline of Customer Experience Management;
|
4.
|
Identify and assess those interactions and/or touchpoints which are key drivers of member loyalty or dissatisfaction, and the “behind the scenes” people, processes and systems that affect them;
|
5.
|
Articulate the experience strategy and define the ideal member experience, with a focus on delivering the “right” experiences to the “right” members, at the right times.
|
10.
|
Prepare a detailed gap analysis identifying key areas for improvement;
|
11.
|
Deliver a prioritized series of recommendations in the form of a roadmap/implementation plan organized by projects with timing, sequencing and resources requirements.
|
-
|
Conduct an in-depth brand and experience assessment;
|
-
|
Define the emotional connection with, and alignment of, Client’s brand with its model/ideal customers;
|
-
|
Develop a differentiated customer experience strategy;
|
-
|
Evaluate Client’s channels, touchpoints and experiences, resulting in the design of the “ideal member experience”;
|
-
|
Develop a “member experience transformation implementation roadmap.”
|
2.
Segmentation/Data Overlays
|
·
Participate in file definition
·
Participate in defining “next level” segmentation for NuVision
|
·
Provide customer files in required formats to 3
rd
party
·
Approve segments
|
3.
Qualitative Customer Focus Group Research (3; ~15 participants)
|
·
Conduct up to three qualitative online focus groups, with members representative of major retail geo-segments
|
·
Recruit members for participation
·
Approve guides
·
“Listen” as desired
|
4.
Quantitative Member, Prospect and Employee Research (~1,625 total)
|
·
Conduct an online survey for members, non-members and associates, to gather quantitative experience and driver data
|
·
Provide customer and employee files
·
Append files with segmentation data
·
Approve sample plan and survey instruments
|
5.
Data Analysis, Summarization and Reporting (including systems identification)
|
·
Data Analytics and Results Summary including loyalty and brand engagement drivers, touchpoint priority, gaps and opportunities across the member journey;
|
·
Review findings
|
6.
Persona and Journey Map Development
(1 to 3, as dictated by research)
|
·
Persona and Journey Map Development (based on psychographic segments): Up to 3 research-driven personas, and up to 3 persona-based journey maps focused on the interactions that drive (or impede) member engagement
|
·
Review and provide input
·
Approve
|
Phase 3, Strategy
|
||
Task
|
Company Responsibility
|
Contractor and Client Responsibilities
|
1.
Business Analysis and Findings
|
·
Review of research data (qualitative and quantitative) through the lens of business objectives to inform strategy and design
|
·
Review and provide input
|
2.
Brand Alignment
|
·
Determine the degree to which Client’s current brand is aligned with the emotional needs of Client members, including the identification of any gaps by attribute and segment
|
·
Review and provide input
|
3.
Experience Strategy Definition
|
·
Articulation of member experience strategy for Client, tied back to brand and business strategy
|
·
Review and provide input
Approve
|
3.
Define execution approaches
|
·
Provide recommendations for member experience workstream as to the ways of fulfilling the implementation plan
|
·
Review and provide input
|
4.
Develop resource requirements
|
·
Define key resource gaps, recommend required resources and ways to obtain them
|
·
Review and provide input
|
For the Company
|
Accepted for Contractor
|
|
Signature
MICHAEL HINSHAW
|
Signature
STEPHEN HODGSON
|
|
Michael Hinshaw, President
December 9, 2013
|
Stephen Hodgson, President
Name, Title
12/9/2013
|
|
Date
|
DealPoint ID #
|
TBD
|
“Microsoft”
|
“Vendor Personnel”
|
Company Name: Microsoft
|
Company Name: Touchpoint Metrics, Inc. DBA MCorp Consulting
|
Primary Contact:
|
Vendor Personnel Name(s):
Michael Hinshaw
Gary Batroff
Denise della Santina
|
Address:
|
Address: 201 Spear Street, Suite 1100, San Francisco, CA 94105
|
Phone number:
|
Phone number: 415-526-2290
|
Fax number:
|
Fax number: 415-526-2650
|
Email (if applicable):
|
Email (if applicable): admin@mcorpconsulting.com
|
Secondary Contact:
|
Secondary Contact: Lisa Hamilton (Accounting)
|
SOW Effective Date:
|
12/16/13
|
SOW Expiration Date:
|
3/15/14
|
Microsoft
|
Supplier
|
Microsoft Signature:
|
Supplier Signature:
|
Microsoft Name:
Sasha Frljanic
|
Supplier Name:
Michael Hinshaw
|
Microsoft Title:
Dir. IT Architecture, SEA
|
Supplier Title:
Managing Director
|
Microsoft Date:
Jan. 17
th
2014
|
Supplier Date:
December 10, 2013
|
1.
|
Description of S
ervices
|
·
|
Providing #digital a better understanding of the current experience of meeting attendees (‘customers’), including the “current state” of the end-to-end meeting experience.
|
·
|
Understand what issues cause poor experiences, including:
|
o
|
the weighted importance of these issues as factors driving the meeting experience, and
|
o
|
the relative importance and effectiveness of the various touchpoints, systems, interactions and processes which contribute to the overall meeting experience.
|
·
|
Identifying opportunities for improvement, including the possibility of “Quick Wins”
|
-
|
Project Kick-Off and Scheduling
|
-
|
Data Gathering and Desk Research (Primary and Secondary sources)
|
-
|
Preliminary 1-to-1 Stakeholder Interviews (~4)
|
-
|
Goals and Objectives Articulation
|
-
|
Research Plan and Sampling Strategy
|
-
|
Extended Stakeholder Interviews (~6)
|
-
|
Persona Mapping Workshop (~12-15 attendees)
|
-
|
Touchpoint Mapping Workshop (~15-20 attendees)
|
-
|
Touchpoint Inventories (Draft)
|
-
|
Journey Map Framework
|
-
|
Persona Development (3 Primary Persona)
|
-
|
Current State Journey Maps (1 Each for 3 Primary Persona)
|
-
|
Touchpoint Inventories (Final)
|
-
|
Working Strategy Session (Findings Validation)
|
-
|
Findings Development
|
-
|
Stakeholder Presentation
|
2.
|
Deliverables/Delivery Schedule
|
3.
|
Payment
|
3.1
|
Services Fees
|
3.2
|
Expenses
:
(choose one of the below)
|
|
As reflected in Section 3.1, above, Microsoft shall reimburse Vendor up to
seven thousand five hundred
US Dollars ($
7,500.00
USD) for pre-approved, reasonable and actual travel and travel-related expenses incurred by Vendor Personnel in connection with the performance of the Services. All travel expenses hereunder are subject to Microsoft’s review and the Microsoft Travel Policy and Vendor or Vendor Personnel must submit appropriate documentation evidencing expenses to be reimbursed.
|
|
Vendor shall bear sole responsibility for all expenses incurred in connection with the performance of the Services, unless otherwise agreed to in writing by Microsoft.
|
4.
|
Relationship of the Parties
|
(a)
|
No employment.
The Agreement or this SOW does not create an employment relationship between Microsoft and Vendor or Vendor Personnel. Vendor’s employees, independent contractors, personnel and/or subcontractors (collectively referred to as “Vendor Personnel”) are not Microsoft employees.
|
(b)
|
Vendor is responsible for and will pay all wages, fringe benefits, payroll taxes, insurance, work schedules, and work conditions with respect to the Vendor Personnel, and for all other costs incurred by it in connection with its business, including but not limited to travel, rent, and the cost of supplies and materials, except as may have been approved by Microsoft in accordance with section this SOW. Upon Microsoft’s request, Vendor will provide Microsoft with satisfactory proof of employment status of the assigned Resources.
|
(c)
|
Vendor will be responsible for and pay all costs of conducting its business, including, but not limited to, the expense and responsibility for any applicable insurance or city, county, state or federal licenses, permits, taxes or assessments of any kind. Vendor will be responsible for payment of any taxes imposed on Vendor including, but not limited to, income taxes, Social Security and Medicare taxes, and worker’s compensation premiums. Vendor will indemnify Microsoft and hold it harmless from paying such business costs or taxes.
|
(d)
|
Vendor will defend, indemnify and hold harmless Microsoft and any of its parent, subsidiary or related companies, officers, managers, directors, employees and agents, for any claims, damages, judgments, settlement, costs or expenses incurred by Microsoft as a result of any action instituted by Vendor Personnel against Microsoft, including but not limited to any claims for wages, fringe benefits, or other compensation under federal or state law, any claims related to Vendor’s employment of or contract with Vendor Personnel, and any claims challenging the Vendor’s right to dismiss or sever contractual ties with its Vendor Personnel. Similarly, Vendor will defend, indemnify and hold Microsoft harmless for any other third-party claims, judgments, settlements, costs, fines or penalties related to the employment status of the Vendor Personnel.
|
5.
|
Other
|
1.
|
Description of Project and/or Services
.
|
2.
|
Project Duration
.
|
3.
|
Compensation
.
|
4.
|
Expenses
.
|
Touchpoint Metrics Inc.
|
Ashley Garnot
|
|
||
By:
|
MICHAEL HINSHAW
|
Signature:
|
ASHLEY GARNOT
|
|
Title:
|
President
|
Date:
|
February 2, 2014
|
|
Name:
|
Michael Hinshaw
|
|||
Date:
|
February 2, 2014
|
1.
|
I have reviewed this Form 10-K for the year ended December 31, 2013 of Touchpoint Metrics, Inc.;
|
|
|
||
2.
|
Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report;
|
|
|
||
3.
|
Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this report;
|
|
|
||
4.
|
The registrant’s other certifying officer and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal control over financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15d-15(f)) for the registrant and have:
|
|
|
||
a.
|
Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared;
|
|
|
||
b.
|
Designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles;
|
|
|
||
c.
|
Evaluated the effectiveness of the registrant’s disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and
|
|
|
||
d.
|
Disclosed in this report any change in the registrant’s internal control over financial reporting that occurred during the registrant’s most recent fiscal quarter (the registrant’s fourth fiscal quarter in the case of an annual report) that has materially affected, or is reasonably likely to materially affect, the registrant’s internal control over financial reporting; and
|
|
|
||
5.
|
The registrant’s other certifying officer and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the registrant’s auditors and the audit committee of the registrant’s board of directors (or persons performing the equivalent functions):
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a.
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All significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the registrant’s ability to record, process, summarize and report financial information; and
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b.
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Any fraud, whether or not material, that involves management or other employees who have a significant role in the registrant’s internal control over financial reporting.
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Date:
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March 28, 2014
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MICHAEL HINSHAW |
Michael Hinshaw
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Principal Executive Officer and Principal Financial Officer
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(1)
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The Report fully complies with the requirements of Section 13(a) or 15(d) of the Securities Exchange Act of 1934; and
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(2)
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The information contained in this Report fairly presents, in all material respects, the financial condition and results of operations of the Company.
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MICHAEL HINSHAW | |
Michael Hinshaw
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Chief Executive Officer and Chief Financial Officer
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