Terms for Development and Professional Services
(Revised December 8, 2008)
1. Contract Documents
These Specifications constitute an integral part of the Services
Agreement between RRD and Supplier ("Services Agreement")in
which they are referenced, to the extent Supplier provides any
Professional Services (as hereinafter defined) to RRD.
As used in these Specifications D-1, the terms listed below shall have
the following definitions. Terms not otherwise defined herein shall
have the meanings set forth in the Definitions section of the
"Acceptance Certificate" means a written certificate
in a form to be provided by RRD, that Supplier shall prepare
and RRD shall sign to evidence RRD's acceptance of
"Acceptance Date" means the date on which RRD delivers the
Acceptance Certificate or is otherwise deemed to have accepted such
"Acceptance Test" means any test specified in the Order which will be
used to demonstrate that the Deliverables perform the functions and
operate with the capabilities described in the Documentation or
"Deliverables" means the computer programs, firmware, schematics,
flowcharts, drawings, specifications, Documentation, reports,
recommendations or other writings, information or material embodied
in a tangible medium that are to be provided by Supplier pursuant to
the Services Agreement.
"Documentation" means the visually readable English language materials
provided by Supplier that are relevant to the Deliverables.
"Intellectual Property Right" means a patent, copyright, trademark,
trade secret, registered design, industrial design, design right,
utility model or other intellectual property right recognized by
statute or at common law.
"Professional Services" means all professional services to be provided
by Supplier pursuant to an Order and this Agreement, including, but
not limited to, development, consulting, analysis, design, computer
programming, installation, testing, conversion, implementation,
training, technical writing and any other services necessary or
desirable to successfully install and operate the Deliverables or
complete the tasks specified in the Order.
"Specifications" means the specifications referenced in and attached to
the Order. The Specifications shall include, but not be limited to,
tasks to be completed, functions to be performed, user operational
instructions, descriptions, tolerances, capabilities and physical
requirements of a Deliverable.
"Warranty Period" means that period of time commencing on the
Acceptance Date and continuing for one (1) year thereafter.
3. Project Management
Each party shall appoint a project manager who shall be responsible for
Coordinating its activities with respect to this Agreement. Each party shall direct all performance-related inquiries to the project manager of the other party. Each party's project manager shall have the authority to act on its behalf of in all matters concerning the technical details of the Order. To change the scope of the Order, RRD's project manager shall provide a written request detailing the desired changes to Supplier's project manager. Supplier's project manager shall provide the RRD project manager with an estimate of the cost of such change and impact on the schedule. Supplier shall continue performing pursuant to the previously agreed-upon Order until the parties agree in writing on the applicable changes in scope of the Order, scheduling, and fees.
4. Scope Of Services
The Professional Services or Deliverables to be provided by Supplier under the Service Agreement shall be described in an Order issued by RRD and accepted by Supplier. If a task specification is issued in connection with an Order, it will reference the Service Agreement and such Order and will describe the work to be done, deliverables, ownership and confidentiality, RRD and Supplier responsibilities, scheduled completion, criteria for acceptance and cost/milestone deliverable payments. A task specification or Order may not be changed or be terminated orally, but may be modified at any time by an instrument in writing signed by authorized representatives of both parties hereto.
RRD shall have the right to interview and accept or reject any personnel provided by Supplier prior to assignment to RRD, it being understood that such interviews are for the purpose of RRD confirming the individual's ability to perform the technical aspects of the assignment. As a condition to any engagement involving work to be performed at a Site, Supplier personnel may be required to pass a drug screening test administered by RRD.
6. Key Resources
An Order may specify a key employee, subcontractor and agent resources ("Key Resources") committed to the performance of Supplier's obligations. Supplier shall not change Key Resources or assign Key Resources to any other activities which are not directly associated with the performance of its obligations to RRD without the prior written consent of RRD.
Neither party shall recruit or hire any personnel of the other who are or have been assigned to perform any Professional Services in connection with any Order entered into between the parties pursuant to the Services Agreement until one (1) year after completion of the Professional Services, except that RRD shall have the right to recruit and hire any employee or consultant of Supplier if RRD terminates this Agreement or an Order for cause as specified in the Services Agreement.
Supplier acknowledges that time is of the essence for delivery of all Deliverables and completion of all Professional Services. Supplier shall deliver all Deliverables and complete all Professional Services on or before the scheduled delivery date specified on the Order. No Deliverable shall be deemed delivered and no Professional Services shall be deemed to be completed unless and until all Deliverables have been delivered and all Professional Services have been completed in their entirety in accordance with the requirements set forth in the Services Agreement, these D-1 Specifications and the Order. Any delays in delivery of Deliverables or completion of Professional Services shall be reported by Supplier to RRD immediately as they become known to Supplier.
(a) The Deliverables shall be deemed accepted upon their successful installation at RRD's satisfaction that the capabilities and performance of the Deliverables conform to the Documentation and Specifications.
(b) When so specified on an Order, Supplier will demonstrate to RRD's satisfaction that the Deliverables meet the Acceptance Test criteria. In such case, if the Deliverables pass the Acceptance Test and otherwise conform to the Documentation and Specifications, Supplier shall provide RRD with an Acceptance Certificate. The Deliverables shall be deemed accepted when RRD signs the Acceptance Certificate. If RRD does not sign the Acceptance Certificate, RRD shall specify to Supplier in writing, within fifteen (15) working days (Monday through Friday, excluding holidays) after the Supplier has delivered the Acceptance Certificate, the deficiencies in the Deliverables which caused RRD not to sign the Acceptance Certificate. If such notification of the deficiencies is not provided within fifteen (15) working days, the Deliverables shall be deemed accepted.
(c) If RRD specifies a deficiency as set forth above:
(i) Supplier will proceed to correct the
deficiency. When the deficiency is corrected to RRD's satisfaction, RRD will sign the Acceptance
(ii) In the event that Supplier determines
that a deficiency is not due to any Deliverable, then Supplier shall provide in writing the basis for this determination. If the deficiency is not due to a Deliverable, then RRD shall sign the
(d) If within ninety (90) days after delivery there is no acceptance of the Deliverables due to deficiencies in or caused by one or more Deliverables or if Supplier and RRD do not agree whether the deficiency is due to a Deliverable, RRD may, at its option, notify Supplier in writing that the Deliverables have not been accepted and that the Order is canceled. In such event Supplier shall immediately refund all monies paid by RRD to Supplier for such Deliverables. RRD shall retain the right to continued use of any Deliverable required for the non-disrupted continuation of its business until, but not after the earlier of:
(i) twelve (12) months after termination
of the Order, or
(ii) such time as RRD has, at
its convenience, successfully installed a suitable replacement for said
10. Title and Possession
(a) All Deliverables developed in connection with any Order, either by RRD or jointly by RRD and Supplier, or by Supplier pursuant to Specifications or instructions provided by RRD shall be owned by and confidential to the party identified in the Order. In the absence of any such identification in an Order, Deliverables shall be deemed to be owned by and confidential to RRD.
(b) Deliverables that are owned by and confidential to RRD shall be considered a works made for hire belonging exclusively to RRD with RRD having the right to obtain and to hold in its own name patents, copyrights, registrations, or such other protection as may be appropriate to the subject matter and any extension or renewals thereof. To the extent that any such Deliverables are not subject to the United States Copyright Act or do not otherwise qualify for work-made-for-hire treatment under such Act, Supplier agrees to assign and does hereby assign all Intellectual Property Rights in such Deliverables to RRD and shall cause its employees to waive all moral rights. Supplier agrees to give RRD and any other person designated by RRD, at RRD's expense, all assistance reasonably required to perfect its rights pursuant to this Section. Supplier will not, nor will it permit its Employees, to sell, transfer, assign, plagiarize or otherwise disclose such Deliverables to any third party.
(c) Supplier agrees that in connection with any work performed for RRD, it will not collaborate in the creation of patentable or copyrightable works with any person (other than RRD employees or other persons who have signed agreements consistent with the provisions of this Section) without RRD's prior written consent.
(d) Supplier shall, at its sole cost and expense, release, defend at RRD's option, indemnify and hold harmless RRD, its directors, officers, agents, employees, and shareholders from and against all claims, demands, disputes, complaints, causes of action, suits, losses and damages (including attorneys' fees) of any kind to the extent they in any way relate to or arise, in whole or in part, due to the acts or omissions to act of Supplier, its subcontractors, Suppliers, or agents or the employees of any thereof, in the performance of the Contract or any breach or default thereunder.
(e) There are no restrictions on RRD's right to make, have made, use, modify, create derivative works of, reproduce, have reproduced, perform, display, sell and distribute Deliverables that are owned by RRD.
(f) With respect to any RRD-owned software, Supplier agrees to deliver to RRD the source code (including flowcharts, compile listings and comments sufficient to enable a reasonably skilled programmer to understand the function and operation of the computer programs) at no additional charge. When RRD shall come into possession of the computer program source code in accordance with this Agreement, RRD shall thereafter have the absolute right to modify the source code to perform any functions that RRD deems necessary or desirable. RRD agrees that any modifications to the computer programs may void any applicable warranties that may be in effect.
11. Professional Services and Deliverables Warranty
Supplier warrants during the Warranty Period that all Professional Services and Deliverables provided under the Services Agreement will be performed to the best of its, and its employees', agents', and contractors' ability and in a professional manner, and that Deliverables will conform to and perform in accordance with the relevant Specifications and with all associated Documentation. Supplier's obligation under this warranty is to re-perform any Professional Services and correct and adjust any portions of the Deliverables which do not comply with this warranty, at no additional cost to RRD. After the Warranty Period, (i) any RRD requested corrections and modifications shall be furnished on a time and materials basis in accordance with the Agreement at the then current charges therefor, and pursuant to a separately negotiated maintenance agreement. This warranty is in addition to all other warranties expressed or implied, and other obligations of Supplier.
Supplier shall include in every subcontract provisions consistent with those contained herein. Prior written approval of each subcontractor must be obtained from the appropriate RRD Supply Chain Management representative, but such approval shall not relieve Supplier of responsibility for the subcontractor's performance of the work.