EXHIBIT 10.3
AGREEMENT FOR COMPUTER CONSULTANCY SERVICES
CUSTOMER : PURCHASE SOFT CONTRACT # :
ONE RESEARCH DRIVE PACT # :
WESTBOROUGH EFFECTIVE DT : 03/15/2001
MASSACHUSETTS 00000
X.X.X.
For the above identified CUSTOMER, Tata Infotech Limited, a company incorporated
under the Indian Companies Act, 1956, and having its registered office at Manish
Commercial Centre, 216-A, Xx. Xxxxx Xxxxxx Road, Worli, Mumbai 400 025, India,
hereinafter called "Tata Infotech" agrees to furnish software services as
described hereunder, subject to the terms and conditions of this Agreement.
1. THE SERVICE
Tata Infotech undertakes to furnish to CUSTOMER at mutually agreed
locations, all such computer consultancy, programming and testing services
(the "Services"), as described in the "Proposal to PurchaseSoft, Inc." dated
7th February 2001 (the "proposal") which forms an integral part of this
contract.
2. CHARGES, PAYMENT, TAXES AND CHANGE CONTROL
2.1 Tata Infotech agrees to perform the Phase I Services for a total firm
fixed fee of (USD One hundred and nine thousand only) USD 109,000:
The subsequent Phases will be reviewed at the completion of Phase I. Based
on the confirmation of the Scope of Work after the Study, the aforesaid
proposal will be reviewed.
All other terms and conditions of this contract will remain unchanged.
2.2 If either party wishes to alter the Services during the term of this
Agreement the following procedure shall apply:
a) The party who requests the change (the "Originator") will forward
to the other party (the "Recipient") a Change Request which shall
include the following:
o Project identification;
o Originator's name and title;
o the date of the Change Request;
o a description of the proposed change to the Scope of Work;
o the reason for the proposed change.
b) Tata Infotech shall assign a number to and log each Change Request.
c) All Change Requests shall be categorized by the Originator as
Priority 1 (urgent) or Priority 2 (ordinary) or Priority 3 (post
implementation).
d) Tata Infotech shall investigate the impact of the Change Request on
the price, Schedule, Scope of Work and relevant obligations under
the Agreement (the "Impact Study") as follows:
o Priority 1 within 10 days
o Priority 2 within 30 days
o Priority 3 after implementation of the system.
e) If the Customer is the Originator, the Customer shall pay Tata
Infotech its then current charges for conducting the Impact Study.
f) If both parties agree in writing upon the Impact Study then any
necessary amendments to the price, Schedule, Scope of Work and
relevant obligations under the Agreement, shall be deemed
incorporated into the Agreement.
g) If the parties cannot agree upon the Impact Study or the necessary
amendments under clause (f) of this clause the Change Request will
not be implemented.
2.3 All taxes outside India, applicable and/or related to the above fees
payable to Tata Infotech, excluding corporation tax and franchise or any
other tax on Tata Infotech's general income but including sales tax,
import duty, turnover tax or any other tax including levy or charge or
tax of any nature by whatsoever name called shall be paid and borne
entirely by CUSTOMER.
2.4 All taxes in India, applicable and/or related to the above fees payable
to Tata Infotech or to the items supplied by CUSTOMER, excluding
corporation tax and franchise or other tax on CUSTOMER's general income
but including sales tax, import duty, turnover tax, or any other tax
including levy or charge or tax of any nature by whatsoever name called
shall be paid and borne entirely by Tata Infotech.
2.5 All freight, insurance, duties outside India (if any) and other charges
of deliverables to and by Tata Infotech hereunder will be borne entirely
by CUSTOMER.
2.6 All payments by CUSTOMER to Tata Infotech are to be made by EFT
(Electronic Funds Transfer) to the Tata Infotech Bank Account mentioned
in the Tata Infotech invoice.
2.7 Payment shall be made within 15 days of receipt of dated invoice which
refers to this Agreement. In case of late payment or default by the
CUSTOMER with respect to any payment to be made by the CUSTOMER to Tata
Infotech under this Agreement, Tata Infotech shall have the option to
recover from the CUSTOMER, a charge computed at the rate of 1.5% per
month on such outstanding amount for each calendar month and for any
fraction thereof on a pro-rata basis, while such amount remains
outstanding. Tata Infotech shall have this option in addition to its
right to terminate this Agreement in accordance with the provisions of
Clause 9 hereunder.
3. PERFORMANCE OF SERVICES
The completion of the project is the responsibility of Tata Infotech and
project personnel will at all times remain under the supervision and control
of Tata Infotech. Tata Infotech reserves the right to assign personnel to
perform the Services and agrees to assign personnel who are, in Tata
Infotech's judgement, qualified to complete the Services requested.
4. ACCEPTANCE AND WARRANTY
4.1 Tata Infotech's sole warranty hereunder is that the software and
documentation developed and delivered to the CUSTOMER ("Deliverable/New
Agreement Material") shall conform substantially to the specification
mutually agreed upon in writing. This warranty shall extend to CUSTOMER
alone and no other
4.2 Within thirty (30) days or as stated in the proposal, whichever is
earlier, of delivery of each item specified as a Deliverable, if any,
CUSTOMER shall test the Deliverable to determine its conformance with
agreed specifications or as specified in the revised proposal. The
testing criteria shall be developed jointly by CUSTOMER and Tata
Infotech. Tata Infotech shall hold itself ready to respond immediately
in the event any nonconformity is discovered.
4.3 Upon the successful completion of testing of the final Deliverable,
CUSTOMER shall notify Tata Infotech in writing of its Acceptance of all
Deliverables. Failure to complete testing of Deliverables by CUSTOMER or
non-intimation to Tata Infotech in writing of any non-conformity within
thirty (30) days of delivery shall be deemed as Acceptance by CUSTOMER
of the Deliverables. Upon Acceptance Tata Infotech's responsibility
shall end.
4.4 SAVE AS PROVIDED HEREIN, THERE ARE NO OTHER WARRANTIES EXPRESS OR
IMPLIED BY OPERATION OF LAW OR OTHERWISE, CONCERNING THE SERVICES,
SOFTWARE AND SOFTWARE MODIFICATIONS AND DOCUMENTATION PROVIDED, TATA
INFOTECH DISCLAIM THE IMPLIED WARRANTY OF MERCHANTABILITY AND FITNESS
FOR PURPOSE, AND FURTHER DISCLAIM ANY AND ALL RESPONSIBILITY FOR LOSS OF
DATA OR OTHER UNINTENDED CONSEQUENCES AS A RESULT OF PROVIDING SERVICES
UNDER THIS AGREEMENT.
5. TITLE AND LICENSE
5.1 Customer acknowledges that Tata Infotech owns or have the right to use
any Pre Existing Intellectual Property for providing Services under this
Agreement. Pre Existing Intellectual Property means materials / software
/ ideas / design etc. in which TATA INFOTECH has ownership rights through
trade marks, copyrights, trade secrets and or patent either prior to
entering into this Agreement or at the time of using the same for the
purposes of this Agreement. Property Rights into such Pre Existing
Intellectual Property and any modifications or improvements to the
Pre-Existing Intellectual Property shall vest in the owner of the Pre
Existing Intellectual Property. Tata Infotech acknowledges that Customer
owns or has the right to use the Customer's Pre Existing Intellectual
Property and that any modifications or improvements to the Customer's
Pre-Existing Intellectual Property shall vest in the Customer.
5.2 TATA INFOTECH agrees that upon completion or termination of this Agreement,
for whatever cause and without regard to whether the [Deliverables/New
Agreement Material] has been completed, on full payment of all monies due
to TATA INFOTECH, one copy of all notebooks, data, information and other
material acquired or compiled by TATA INFOTECH in respect to the services
or [Deliverables/New Agreement Material], including source code, object
code and technical documentation, shall be delivered to the CUSTOMER.
5.3 Full and exclusive rights and ownership in the [Deliverables/New Agreement
Material] and in any and all related letters patent, trademarks,
copyrights, trade secrets, Confidential Information, and any other
proprietary rights which TATA INFOTECH possesses or is entitled to in the
[Deliverables/New Agreement Material] shall vest in and is hereby assigned
to the CUSTOMER as of the date of acceptance. Except as provided in this
Agreement, TATA INFOTECH shall retain no right, ownership or title in the
[Deliverables/New Agreement Material] or in any related letters patent,
trademarks, copyrights, trade secrets, Confidential Information or any
other proprietary rights. The parties hereto agree that the
[Deliverables/New Agreement Material] and all such rights are being sold in
their entirety to CUSTOMER for whatever use it desires, and nothing
contained herein shall be deemed to construe a mere license or franchise in
the CUSTOMER.
5.4 Should CUSTOMER or any of its agents or representatives seek to obtain
letters patent, trademarks, or copyrights in any country of the world on
all or part of the [Deliverables/New Agreement Material], TATA NFOTECH
agrees to cooperate fully without compensation (at the cost of the
CUSTOMER) in providing information, completing forms, performing actions
and obtaining the necessary signatures or assignments required to obtain
such letters patent, trademarks or copyrights.
5.5 Tata Infotech hereby grants an indefinite, non transferable, non-exclusive
license to the Customer to use any Deliverables which are developed as a
result of Tata Infotech providing the Services during the terms of this
Agreement ("New Agreement Material"). The CUSTOMER shall have all the
rights for such "New Agreement Material". Further if such "New Agreement
Material" contains use of any Pre-Existing Intellectual Property of TATA
INFOTECH, then TATA INFOTECH shall assign all rights for such Pre-Existing
Intellectual Property to the CUSTOMER. However, Tata Infotech does not
grant the Customer the right to use the Pre-Existing Intellectual Property
independently of, or to the extent that they are capable of being separated
from, the Deliverables. Further all Intellectual Property Rights in the New
Agreement Material shall vest in CUSTOMER.
6. FORCE MAJEURE
Neither party shall be liable to the other for any delay in or failure
of, performance of their respective obligations under this agreement caused by
occurrences beyond the control of the party (as the case may be). However, if
such delay exceeds thirty (30) days, either party shall have the option,
exercisable by written notice, to cancel this Agreement pursuant to Clause 9.
7. DURATION OF THE AGREEMENT
This Agreement shall be effective for a period of 03/15/2001, from
03/14/2002 but shall continue until completion by both parties of their
obligations hereunder.
8. GOVERNING LAW
This Agreement shall be governed by the laws of New York, United States of
America.
9. TERMINATION OF THE AGREEMENT
9.1 Either party may terminate this Agreement at any time during the term of
the Agreement by giving the other party sixty (60) days prior written
notice of its intention to so terminate. However Tata Infotech shall have
the option to terminate this Agreement forthwith if CUSTOMER is in the
breach of clause 2.7
9.2. The termination of this Agreement or of any renewal thereof shall
discharge any further obligations of either party hereto with respect
to this Agreement or of any renewal thereof; provided, however, that
the Tata Infotech's obligations under Articles 5 hereof with respect
to such of said services as may have been furnished prior to the
effective date of termination shall not be discharged by such
termination but shall remain in full force and effect and, provided
further, that CUSTOMER's obligation hereunder to make payment to Tata
Infotech with respect to the period prior to the effective date of
said termination shall remain in full force and effect. Upon
termination for any reason, customer shall promptly pay to Tata
Infotech all outstanding dues as per agreed schedule and pro-rata
payment for partly completed work.
10. CONFIDENTIALITY
10.1 Both parties shall keep confidential and shall not disclose or make
available directly or indirectly to any third party any and all
information and material that is marked "Confidential and Proprietary"
and is communicated, or becomes available to, or accessible to the
other party in the course of this Agreement ("Confidential
Information").
10.2 Both parties acknowledge that the Confidential Information is the
valuable property of the other party and that any disclosure of it
could give rise to considerable damage to the non-disclosing party.
10.3 Neither party shall use or access the Confidential Information for
any reason except as is necessary to perform the Agreement.
10.4 Upon termination or completion of this Agreement, each party shall
deliver to the other party any Confidential Information in their
possession, which is capable of being delivered. Both parties shall
delete, erase, or otherwise destroy any Confidential Information
contained in computer memory, magnetic, optical, laser, electronic, or
other media in its possession or control which is not capable of
delivery to the other party.
11. Tata Infotech EMPLOYEES
During the period of this Agreement and two (2) years thereafter, CUSTOMER
agrees to not employ in its services in any capacity, either directly or
indirectly, any persons who have been employed with Tata Infotech and have
worked on this project under this Agreement, without prior consent of Tata
Infotech (such consent not to be unreasonably withheld or delayed in respect
of persons not in the employment of Tata Infotech during the six months
preceding the date of request for such consent)
12. LIMITATION OF LIABILITY
12.1 In no event shall Tata Infotech be liable to Customer in contract, tort
or otherwise, for, or in respect of, any indirect, special, incidental
or consequential loss or damage arising out of or in connection with or
relating to the performance or any breach of this Agreement or any
matter relating to this Agreement or error (whether negligent or not)
in information supplied to Customer before or after the date of this
Agreement in connection with its subject matter, even if Tata Infotech
knew or should have known of the possibility of such loss.
"Consequential loss" shall include but not be limited to loss of
profit, data, use or goodwill (or similar financial loss), and payment
made or due to any third party, any loss or damage caused by delay in
the supply of the Services to be provided under this Agreement.
12.2 Tata Infotech`s liability, if any, in contract, tort or otherwise
arising out of, or in connection with, or relating to the performance
or any breach of this Agreement, or any matter relating to this
Agreement, or error (whether negligent or not) in information supplied
to Customer before or after the date of this Agreement in connection
with its subject matter shall not exceed in total the amount paid to
Tata Infotech under this Agreement for Services which are the subject
matter of or directly related to the cause of action asserted during
the 12 month period immediately prior to the cause of action arising.
12.3 Customer's sole and exclusive remedies for damages from any cause
whatsoever will be those provided in this Agreement.
13. CUSTOMER'S RESPONSIBILITIES AND OBLIGATIONS
13.1 The Customer's responsibilities and obligations include but are not
limited to the responsibilities and obligations set out in clauses
13.2 to 13.7 and Section 6.4 of the proposal
13.2 The Customer will provide access to all relevant source code and
documentations and will provide timely inputs to Tata Infotech to
enable completion of the tasks in a timely manner. The Customer agrees
to send the source code and all documentation to India in electronic
form.
13.3 The Customer will be responsible for the downloading of software
source in the appropriate format and on the required media.
13.4 The Customer shall provide mutually agreed upon acceptance criteria,
test data, system test scripts and expected results for each program
consistent with Article 4 hereof.
13.5 During the period(s) when Tata Infotech consultants are required at
Customers facilities Customer will provide them with appropriate office
space, facilities including telephone, fax and computing resources.
13.6 The Customer will be responsible for obtaining and paying for any and
all licenses and releases for any third party materials (hardware or
software including support) which Tata Infotech may require to
replicate the environment in order to perform the Services.
13.7 The Customer will provide appropriate personnel as contact person to
address and resolve any matter related with the performance of
Services.
14. GENERAL
NOTICE
14.1 All notices and demands hereunder shall be in writing and shall be
deemed to have been given if delivered by hand or if forwarded by
Registered Air Mail, or by cable, telefax or electronic mail and
confirmed by Registered Air Mail or return cable, telex or electronic
mail to each parties respective addresses mentioned hereinabove:
Any such notice shall be deemed to have been duly served upon and
received by the other party to whom it is addressed upon the date of
receipt thereto by the other party, and in case of notice served by
cable or telex or telefax and thereafter confirmed by Registered Air
Mail, 7 days from the date on which the Registered Air Mail
confirmation is posted.
ENTIRE AGREEMENT
14.2 This Agreement including the schedules and attachment hereto
constitutes the entire Agreement understanding and representation
expressed or implied between the Customer and Tata Infotech with
respect to the Products and Services and supersedes all prior conduct
and communications both oral and written.
AMENDMENTS IN WRITING/WAIVER
14.3 No modifications or amendments to this Agreement or any waiver of any
terms or conditions hereof shall be effective unless put in writing and
signed by both parties. Any forbearance, indulgence or delay in
enforcing any right or remedy shall not be, or be deemed to be, any
waiver of or in any way prejudice any right or remedy of Tata Infotech
in respect of this Agreement.
SEVERABILITY
14.4 Each paragraph and provision of this Agreement is severable, and if any
one or more paragraphs or provisions are declared invalid, the
remaining provisions of this Agreement will remain in full force and
effect.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed
as of the date first above written by their duly authorized representatives.
For TATA INFOTECH LTD. For CUSTOMER
/s/ X. Xxxxxxxxxxx /s/ X. Xxxxxxxxxxxxxx
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By X. Xxxxxxxxxxx By X. Xxxxxxxxxxxxxx
Its Company Secretary Its SVP & CTO
03-21-2001
