TEAM SYSTEMS, INC.
HARDWARE SALE AND PURCHASE AGREEMENT
This Agreement made as of September 1, 1999 by and between TCAM Systems, Inc.,
("Seller"), with its principal office at 0 Xxxxxxx Xxxxxx, Xxx Xxxx, XX 00000
and Xxxxxx.Xxx, Inc. ("Purchaser"), with its principal office at 000 Xxxxxxx
Xxxxxx, 0xx Xxxxx, Xxxxx, XX 00000.
1. DEFINITIONS
For purposes of this Agreement, the following definitions shall apply:
1.1 "Computer Hardware" shall mean the computer hardware (including Hardware
Software, as defined below) and devices listed on Schedule A, attached
hereto and made a part hereof.
1.2 "Hardware Software" shall mean such software that is included with the
hardware and delivered by the manufacturer as part of such hardware.
1.3 "Installation Services" shall mean the installation, set-up, test and
related services for the Computer Hardware.
1.4 "User Documentation" shall mean the documentation normally made available
by the manufacturer(s) of Computer Hardware relating to the use of the
Computer Hardware.
2. TITLE
2.1 Seller hereby sells to the Purchaser the Computer Hardware identified in
Schedule A hereof Upon payment to Seller of the purchase price set forth in
Schedule A, title to the Computer Hardware shall vest in the Purchaser.
2.2 Title in and to the User Documentation and Hardware Software shall remain
solely in the Seller (or the manufacturer of the Computer Hardware, as the
case may be), and, subject to the payment of the purchase price set forth
in Schedule A, Purchaser shall only obtain a personal, nonexclusive license
to use the User Documentation and Hardware Software in connection with
Purchaser's operation and use of the Computer Hardware. Purchaser shall not
copy or disclose outside of the Purchaser the User Documentation or
Hardware Software without the Seller's prior written consent.
3. SHIPMENT AND PACKAGING
3.1 The mode of shipment of the Computer Hardware shall be selected by Seller
and the cost of such shipment shall be added to the purchase price set
forth in Schedule A.
3.2 The Computer Hardware shall be packaged in accordance with Seller's then
current packaging specifications for Computer Hardware for the mode of
shipment that the Seller selects, and the cost of such packaging shall be
included in the purchase price of Schedule A.
3.3 The Computer Hardware shall be delivered f.o.b. Seller's shipping point
(manufacturing facility or staging area), and the Purchaser assumes all
risk of loss therefor thereafter.
4. PURCHASE PRICE, TAXES AND TERMS
4.1 The purchase price for the Computer Hardware shall be as set forth in
Schedule A and shall be paid in United States Dollars. The purchase price,
together with all applicable shipping charges, other special charges and
taxes, including any and all penalties, shall be payable in full to the
Seller within thirty (30) days of the date of invoice issued by Seller. In
addition to any other rights Seller may have, Purchaser agrees to pay a
late payment fee of 1.5 percent (1.5%) per month (or part thereof,
calculated on the basis of the actual number of days during such month)
from the due date until payment has been made in full.
4.2 The Purchaser shall pay all taxes based on or in any way measured by this
Agreement, the Computer Hardware or any services related thereto, including
any personal property taxes but excluding taxes based on Seller's net
income. If the Purchaser elects to challenge the applicability of any such
taxes, the Purchaser shall pay such taxes to the Seller and the Purchaser
may thereafter challenge such taxes and seek refund thereof.
5. INSTALLATION SERVICES
Seller shall perform the Installation Services in accordance with the
Consulting Services Agreement entered into between the parties on August
18, 1999, and maintain the site for the Computer Hardware in accordance
with the Facility Management Agreement entered into between the parties on
August 18, 1999.
6. NEGATION OF WARRANTY
6.1 THE COMPUTER HARDWARE IS PROVIDED ON AN "AS IS" BASIS, WITHOUT ANY WARRANTY
OF ANY KIND. EXCEPT AND TO THE EXTENT EXPRESSLY PROVIDED IN THIS AGREEMENT,
THERE ARE NO WARRANTIES, EXPRESSED OR IMPLIED, INCLUDING, BUT NOT LIMITED
TO, ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR PARTICULAR PURPOSE.
6.2 Except as provided for in the Facility Management Agreement entered into
between the parties on August 18, 1999, the Purchaser shall be solely
responsible for the selection, use, efficiency and suitability of the
Computer Hardware.
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7. NEGATION OF PROPRIETARY RIGHTS INDEMNITY
THE COMPUTER HARDWARE IS PROVIDED ON AN "AS IS" BASIS AND THE SELLER SHALL
HAVE NO LIABILITY TO PURCHASER FOR THE INFRINGEMENT OF ANY PATENTS,
COPYRIGHTS, TRADE SECRETS, OR OTHER PROPRIETARY RIGHTS BY THE COMPUTER
HARDWARE OR ANY PORTION THEREOF.
8. TERMINATION/CANCELLATION
8.1 This Agreement may be terminated or cancelled by the Seller if-
(i) Purchaser falls to pay Seller the purchase price;
(ii) Purchaser is in default of any other provision of this Agreement and
such default has not been cured within thirty (30) days of written
notice thereof given by the Seller; or
(iii) Purchaser becomes insolvent or seeks protection, voluntarily or
involuntarily, under any bankruptcy laws.
8.2 In the event of any termination/cancellation of this Agreement, the Seller
may:
(i) Declare all amounts owed Seller to be immediately due and payable;
(ii) Enter the Purchaser's premises and repossess the Computer Hardware and
all other items supplied by Seller; and
(iii) Cease performance of all Seller's obligations hereunder without
liability to Purchaser.
8.3 The foregoing rights and remedies of Seller shall be cumulative and in
addition to all other rights and remedies available to the Seller in law
and in equity.
9. LIMITATION OF LIABILITY
9.1 IN NO EVENT SHALL SELLER BE LIABLE TO PURCHASER FOR ANY INDIRECT, SPECIAL
OR CONSEQUENTIAL DAMAGES OR LOST PROFITS, EVEN IF THE SELLER HAS BEEN
ADVISED OF THE POSSIBILITY THEREOF, ARISING OUT OF OR RELATED TO THIS
AGREEMENT OR THE PERFORMANCE OR BREACH THEREOF. SELLER'S LIABILITY TO
PURCHASER HEREUNDER, IF ANY, SHALL IN NO EVENT EXCEED $10,000 OR THE TOTAL
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OF THE AMOUNTS PAID TO SELLER HEREUNDER BY THE PURCHASER, WHICHEVER IS
LESS.
9.2 IN NO EVENT SHALL SELLER BE LIABLE TO PURCHASER FOR ANY DAMAGES RESULTING
FROM OR RELATED TO ANY FAILURE OR DELAY OF THE SELLER IN THE DELIVERY OR
INSTALLATION OF THE COMPUTER HARDWARE OR IN THE PERFORMANCE OF INSTALLATION
SERVICES OR OTHER SERVICES UNDER THIS AGREEMENT.
9.3 NO ACTION, REGARDLESS OF FORM, ARISING OUT OF THE TRANSACTIONS UNDER THIS
AGREEMENT MAY BE BROUGHT BY CUSTOMER MORE THAN TWELVE (12) MONTHS FROM THE
CLAIMED ACT OR OMISSION GIVING RISE TO THE ACTION BY PURCHASER AGAINST
SELLER UNLESS APPLICABLE STATUE OF LIMITATIONS PROVIDES A SHORTER PERIOD,
IN WHICH CASE SUCH SHORTER PERIOD SHALL APPLY.
10. SOFTWARE
Any and all software (except the Hardware Software) provided by Seller to
Purchaser shall be subject to the terms and conditions set forth in the
respective License Agreements for such software.
11. GENERAL
11.1 This Agreement shall be deemed effective upon execution by both par-ties.
11.2 This Agreement is the exclusive agreement between the parties relating to
the subject matter hereof and supersedes all prior understandings,
writings, proposals, representations or communications, oral or written, of
either party. No modifications of this Agreement shall be valid or binding
on either party unless acknowledged in writing and signed by the duly
authorized officer of each party.
11.3 Any claim or dispute relating to this Agreement (including without
limitation, claims involving allegations in tort) shall be governed by the
laws of the State of New York. The parties hereby: (a) waive all right to
trial by jury; (b) consent to the jurisdiction of the Supreme Court of the
State of New York and of the United States District Court for the Southern
District of New York; and (c) consent that any process or notice of motion
or other application to the court or judge thereof may be served within or
without the State of New York by registered or certified mail, or by
personal service, provided a reasonable time for appearance is allowed.
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IN WITNESS WHEREOF, the parties as of the date first set forth above, have
caused this Agreement to be executed by their duly authorized representatives.
TCAM SYSTEMS, INC. XXXXXX.XXX, INC.
BY:__________________________ BY:___________________________
NAME:________________________ NAME:_________________________
TITLE:_______________________ TITLE:________________________
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HARDWARE SALE AND PURCHASE AGREEMENT
SCHEDULE A
- COMPUTER HARDWARE -
[TO BE ADDED]
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TWIN SUN, INC.
MAINTENANCE AGREEMENT
Agreement made as of the 26th day of August, 1999 by and between Twin Sun,
Inc., with its principal office at 000 X. Xxxxxxxxx 131. #2055, Xx Xxxxxxx,
XX 00000 ("Twin Sun") and Xxxxxx.Xxx, Inc. ("Customer") with its principal
office located at 000 Xxxxxxx Xxxxxx, 0xx Xxxxx, Xxxxx, XX 00000.
WHEREAS, Twin Sun has licensed to Customer such program products as specified
in the Program Product License Agreement ("License Agreement"), executed on
even date herewith and more particularly identified in Schedule A annexed
thereto ("Program Products"); and
WHEREAS, Customer wishes to have Twin Sun to perform Maintenance Services (as
defined below) with respect to the Program Products pursuant to the following
terms and conditions.
NOW THEREFORE, in consideration for the mutual promises the parties agree as
follows:
1. DEFINITIONS
As used in this document the following terms shall have the following meanings:
1.1 "AGREEMENT" Shall mean this document, any attached exhibits or schedules
and any amendments hereto which are in writing and signed by both parties.
1.2 "BUSINESS HOURS" Shall have the meaning stated in Section 3.2.
1.3 "CUSTOMER" Shall have the meaning stated in the preamble.
1.4 "ERROR" Shall mean program imperfections or failures that prevent the
Program Products from operating in all material respects in accordance with
the Specifications attached as Schedule C to the License Agreement.
1.5 "FUNCTIONAL ENHANCEMENT" Shall mean a new version of the Program Products,
which contains additional functions compared to the functions described in
Schedule C to the License Agreement.
1.6 "HARDWARE" Shall mean the hardware identified in Schedule D to the License
Agreement.
1.7 "LICENSE AGREEMENT" Shall have the meaning stated in the preamble.
1.8 "MAINTENANCE SERVICES" Shall have the meaning stated Article 3.
1.9 "PROGRAM PRODUCTS" Shall have the meaning stated in the preamble.
1.10 "TECHNICAL ENHANCEMENT" Shall mean an updated version of a Program Product
which contain corrections to Errors, not reported by Customer or technical
enhancement to the functions described in Schedule C to the License
Agreement.
1.11 "TWIN SUN" Shall have the meaning stated in the preamble.
2. SOFTWARE COVERED
The software covered in this Agreement is limited to the Program Products
licensed by Customer and any modifications, changes, corrections, Technical
Enhancements or Functional Enhancements thereto performed by Twin Sun or
its agents.
3. MAINTENANCE SERVICES
The maintenance services to be provided hereunder (the "Maintenance
Services") shall consist of the services specified in Sections 3.2-3.7, to
be performed on a best effort basis.
3.2 Twin Sun will provide an agent in New York City who shall be available by
telephone between the hours of 9:00 A.M. through 5:00 P.M. (Eastern Time)
during business days in New York City ("Business Hours") for the purpose of
receiving reports of Errors from Customer. Twin Sun will notify Customer of
the name of such agent and the number where the agent can be reached. TCAM
Systems, Inc., located at 0 Xxxxxxx Xxxxxx, Xxx Xxxx, will initially act as
agent. TCAM Systems, Inc. can be reached at (000) 000 0000.
3.3 In response to a reported Error, which has been documented and duplicated
by Customer in reasonable detail and provided to Twin Sun's agent, Twin Sun
shall provide Customer with assistance and the necessary code to correct
the Error within reasonable time.
3.4 Corrections to Errors will be delivered to Customer on data carriers which
will be sent by courier services, accompanied by instructions for
transferring the data or programs to Customer's Hardware (as defined in the
License Agreement). Twin Sun may, however, at its option correct Errors by
patching, provided such method will cause the necessary correction.
3.5 Twin Sun may from time to time, at its discretion, offer to Customer
Technical Enhancements. If Customer accepts a Technical Enhancement, Twin
Sun may license its use by Customer at such additional license fees to be
determined by Twin Sun and subject to the same terms as are contained
herein and the License Agreement. Notwithstanding the foregoing, a
Technical Enhancement in the form of Error corrections shall be provided to
Customer at no charge.
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3.6 In the event that Customer does not accept a Technical Enhancement, Twin
Sun will provide the services described above in relation to the then
current version of such Program Product. Twin Sun may charge Customer Twin
Sun's current time and material rates for the correction of Errors which
would have been avoided had Customer installed the Technical Enhancement.
3.7 Twin Sun may from time to time offer to Customer Functional Enhancements.
If Customer accepts a Functional Enhancement, Twin Sun will license the use
of such Functional Enhancements to Customer at such additional license fees
to be determined by Twin Sun and subject to the same terms as are contained
herein and in the License Agreement.
3.8 Modifications to the Program Products requested by Customer beyond the
scope of the Maintenance Services set out in Sections 3.2 to 3.7, including
without limitation, modifications caused by changes to Customer's hardware
or operating systems environment, shall be performed by Twin Sun on a
reasonable efforts basis in accordance with Twin Sun's Consulting Services
Agreement on a time and material billing basis applying Twin Sun's then
current consulting rates.
4. CUSTOMER SUPPORT
Customer agrees to reasonably cooperate with Twin Sun and including without
limitation to provide Twin Sun with dumps, as requested, and with
sufficient support and test time on Customer's computer system to duplicate
any problem and certify that said problem has been corrected.
5. CUSTOMER RESPONSIBILITY
Customer shall implement and maintain backup and recovery procedures. In
the event Twin Sun is required to perform backup or recovery, Customer
shall pay Twin Sun's then current time and material rates therefor.
6. TELECOMMUNICATIONS
At Twin Sun's request, Customer shall install and maintain for the duration
of this Agreement, a modem and associated dial-up telephone line and/or
leased line providing Twin Sun access to the Program Products. Customer
shall pay for installation, maintenance and use of such equipment and
associated telephone line and/or leased line use charges. Twin Sun, at its
option, shall use this modem and telephone line and/or leased line in
connection with Error correction. Such access by Twin Sun shall be subject
to prior approval by Customer in each instance.
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7. MAINTENANCE FEES AND OTHER REQUIRED PAYMENTS
7.1 All fees shall be paid in United States dollars by wire transfer to the
account specified by Twin Sun from time to time, unless otherwise agreed.
7.2 During the first full year of the term of this Agreement, Twin Sun shall
provide Maintenance Services to Customer for a yearly fee equal to US$
30,000. The annual maintenance fee for successive years during the term
hereof shall be subject to mutual agreement on or before ninety (90) days
prior to the end of the then current term but not to exceed by more than
ten percent (10%) of the immediately preceding year's maintenance fee.
Maintenance fees shall be payable in four (4) installments quarterly on the
first day of each calendar quarter in advance. Twin Sun will invoice sixty
(60) days in advance of each period.
7.3 In addition to the fees set forth in Section 7.2 above, Customer shall pay
an additional annual maintenance fee equal to seven and one half percent
(7.5%) of the amount of any fees charged by Twin Sun to Customer for
Technical Enhancements, Functional Enhancements or modifications to the
Program Products.
7.4 In the event that any failure of the Program Products to operate is due to
causes other than an Error and/or due to modifications made by Customer,
Customer shall pay Twin Sun Twin Sun's then current time and material
charges for Twin Sun's time spent in connection with such problem.
7.5 If Customer requests Twin Sun to provide Maintenance Services outside of
Business Hours, Customer shall pay Twin Sun, Twin Sun's then current time
and material consulting charges per man hour.
7.6 Customer shall reimburse Twin Sun for any out-of-pocket expenses incurred,
including travel to and from Customer site, lodging, meals, telephone,
facsimile and shipping, as may be necessary in connection with the duties
performed under this Agreement by Twin Sun. Customer shall pay Twin Sun's
then current time and material billing rates for time spent by Twin Sun
personnel in traveling between Twin Sun's office and Customer's office, if
Customer's office is beyond a fifteen (15) mile radius of Twin Sun's
office. For travel time outside of Business Hours, Customer shall pay Twin
Sun's then current time and material billing rates for time spent by Twin
Sun personnel in traveling between Twin Sun's office and Customer's office,
irrespective of the distance.
7.7 Invoices shall be payable within thirty (30) days of the date of invoice.
In addition to any other rights Twin Sun may have, Customer agrees to pay,
a late payment fee on any amount overdue for payment by Customer at the
rate of one and one-half percent (1.5%) per month (or part thereof
calculated on the basis of the actual number of days during such month)
from the due date until payment has been made in full.
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7.8 Except for taxes on Twin Sun's income levied by the United States and New
York State Government, the charges and fees set forth herein do not include
national federal, state, county or local sales, property, investment use
and/or other applicable taxes however designated and whether levied or
based upon charges or fees arising under this Agreement. If any such taxes
are hereafter levied or charged retroactively or otherwise, such taxes
shall be the responsibility of Customer and shall be paid by Customer.
8. INSTALLATION
Customer shall be responsible for installing and testing any program code
delivered by Twin Sun hereunder. In the event that Twin Sun installs or
tests any program code delivered hereunder, Customer shall pay Twin Sun its
then current time and material rates therefor.
9. TITLE TO SOFTWARE SYSTEMS AND CONFIDENTIALITY
9.1 Any changes, corrections, modifications, Technical Enhancements or
Functional Enhancements in the form of new or partial programs or
documentation as may be provided under this Agreement shall remain
proprietary to Twin Sun and shall be subject to Articles and/or Sections 2,
3.2, 4, 8, 9, 10 and 15.6 of the License Agreement as if such changes,
corrections, Technical Enhancements and Functional Enhancements were part
of the Licensed Programs (as defined in the License Agreement).
9.2 Twin Sun shall not disclose to any third party or use for Twin Sun's own
purposes Customer's confidential inforination concerning Customer's
business, trade secrets, methods or processes, without the prior written
consent of Customer. Excluded from the foregoing confidentiality and
limitation obligation is inforination which: (a) is included into the
Licensed Programs; (b) at the time of disclosure is part of the public
domain other than through a breach of this Agreement; (c) at the time of
disclosure, is already known to Twin Sun; (d) subsequent to the time of
disclosure, becomes part of the public domain through no fault of Twin Sun;
or (e) is independently developed by Twin Sun without a breach of this
Agreement.
10. EXCLUSION OF LIABILITY
10.1 TWIN SUN WARRANTS THAT THE MAINTENANCE SERVICES PROVIDED HEREUNDER WILL BE
PERFORMED IN A GOOD AND WORKMANLIKE MANNER. EXCEPT AS EXPRESSLY STATED
HEREIN, TWIN SUN MAKES AND CUSTOMER RECEIVES NO WARRANTY, EXPRESS OR
IMPLIED, AND THERE IS EXPRESSLY EXCLUDED ALL WARRANTIES OF MERCHANTABILITY
AND FITNESS FOR A PARTICULAR PURPOSE.
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10.2 TWIN SUN SHALL HAVE NO LIABILITY WITH RESPECT TO ITS OBLIGATIONS UNDER THIS
AGREEMENT FOR CONSEQUENTIAL, SPECIAL, EXEMPLARY, OR INCIDENTAL DAMAGES EVEN
IF TWIN SUN HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
10.3 TWIN SUN'S TOTAL LIABILITY TO CUSTOMER HEREUNDER SHALL IN NO EVENT EXCEED
THE AMOUNTS ACTUALLY PAID BY CUSTOMER TO TWIN SUN UNDER THIS AGREEMENT
DURING THE IMMEDIATELY PRECEDING SIX (6) MONTH PERIOD.
11. TERMINATION
11.1 The term of this Agreement shall be one (1) year commencing upon expiration
of the warranty period specified under the License Agreement, and shall
automatically continue for successive one year periods thereafter unless
written notice of non-renewal is given by either party to the other at
least ninety (90) days prior to the scheduled expiration of the then
current term.
11.2 In addition to what is set forth in Section 11.1, either party may
terminate this Agreement immediately by written notice in the event of any
breach by the other party under this Agreement which is not cured within
thirty (30) days after receipt of notice of such breach.
11.3 In the event the License Agreement is tenninated by either party this
Agreement shall automatically terminate.
11.4 In addition to Sections 11.1, 11.2 and 11.3, Twin Sun may terminate this
Agreement immediately if any modifications are made to the Program Products
by an entity other than Twin Sun or if the Program Products are not being
executed on the Hardware.
11.5 In the event of tennination of this Agreement, all maintenance fees or
charges payable, which have accrued as of the termination date, shall
become due and payable. Notwithstanding the foregoing, in the event of
termination by Customer on the grounds of Twin Sun's breach of and default
under this Agreement Customer shall be entitled to receive a pro-rata
refund of fees paid in advance prior to the effective date of termination.
Further, Twin Sun shall have the right to remove any Twin Sun provided
diagnostic software loaded on Customer's Hardware.
12. GENERAL
12.1 No modifications of this Agreement shall be valid or binding on either
party unless acknowledged in writing and signed by the duly authorized
officer of each party. All notices or other communications given under this
Agreement shall be in writing, sent to
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the address set forth as principal office in the preamble or such other
addresses as Twin Sun or Customer may designate in writing.
12.2 Both parties understand and agree that violation of any provision of this
Agreement may cause damage to the other party in an amount which is
impossible or extremely difficult to ascertain. Accordingly, without
limitation to any other remedy available at law, the injured party shall be
entitled to seek injunctive relief restraining the other party from
continuing to violate the terms and provisions of this Agreement.
12.3 Neither party shall be liable to the other for any delay or failure to
perform its obligations under this Agreement (other than Customer's
obligation to remit payment hereunder) if such delay or failure arises from
any cause beyond the reasonable control of such party, including but not
limited to labor disputes, strikes, other labor or industrial disturbances,
acts of God, floods, lightning, shortages of materials, utility or
communication failures, earthquakes, casualty, war, riots, actions,
restrictions, regulations or orders of any government, agency or
subdivision thereof.
12.4 The parties acknowledge that each has read all the terms of this Agreement
and is authorized to enter into it. Further, both parties agree to be bound
by the tenns and that it represents the complete and exclusive statement of
the agreement between the parties which supersedes all prior communications
and agreements between the parties relating to the subject matter of this
Agreement.
12.5 If any provision of this Agreement shall be deemed invalid and/or
inoperative, under any applicable statute or rule of law, it is to that
extent to be deemed modified so as to provide the most similar enforceable
economic effect and shall have no effect as to any other provision
contained in this Agreement.
12.6 Both parties shall designate a responsible individual with adequate
authority to serve as interface with the other party hereto. The individual
designated by Customer shall be responsible for providing or coordinating
the provision of such information about Customer and its practice, external
and internal procedures and such other information as Twin Sun may
reasonably require from time to time in order to fulfill its obligations
under this Agreement.
12.7 Any forbearance or delay on the part of either party in enforcing any
provision of this Agreement or any of its rights hereunder shall not be
construed as a waiver of such provision or of a right to enforce it.
12.8 Upon prior written notice to Customer Twin Sun shall be entitled to assign
its rights, obligations and liabilities under this Agreement to any
affiliated company.
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12.9 This Agreement is for the sole and exclusive benefit of Twin Sun and
Customer and shall not be deemed to be for the direct or indirect benefit
of the clients or customers of Customer or Twin Sun or any entities
associated in any way with Customer or Twin Sun. Any entities associated
with Customer in any business relationship shall not be deemed to be third
party beneficiaries of this Agreement or have any other contractual
relationship with Twin Sun for any reason.
12.10 Twin Sun is an independent contractor to Customer and this Agreement does
not create a partnership, joint venture, employment, agency or other
similar relationship between the parties.
12.10 The provisions of Articles and/or Sections 7, 9, 10, 11.4 and 12.11 shall
survive termination of this Agreement or any portion hereof Furthermore,
any provision that is by implication intended to continue in force after
termination shall not be affected by termination of this Agreement or any
portion hereof.
12.11 Any claim or dispute relating to this Agreement (including without
limitation, claims involving allegations in tort) shall be governed by the
laws of the State of New York. The parties hereby: (a) waive all right to
trial by jury; (b) consent to the jurisdiction of the Supreme Court of the
State of New York and of the United States District Court for the Southern
District of New York; and (c) consent that any process or notice of motion
or other application to the court or judge thereof may be served within or
without the State of New York by registered or certified mail, or by
personal service, provided a reasonable time for appearance is allowed.
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed by
their duly authorized representatives.
TWIN SUN, INC. XXXXXX.XXX, INC.
BY:__________________________ BY: ___________________________
NAME:________________________ NAME:__________________________
TITLE:_______________________ TITLE: ________________________
DATE: _______________________ DATE:__________________________
TWIN SUN, INC.
CONSULTING SERVICES AGREEMENT
Agreement made as of the 26th day of August, 1999 by and between Twin Sun,
Inc., with its principal office at 000 X. Xxxxxxxxx Xx. #2055, Xx Xxxxxxx, XX
00000 ("Twin Sun") and Xxxxxx.Xxx, Inc. ("Customer") with its principal
office at 000 Xxxxxxx Xxxxxx, 0xx Xxxxx, Xxxxx, XX 00000.
Twin Sun and Customer agree that Twin Sun shall provide consulting and
programming services and related software services ("Work") to Customer and that
such services shall be provided in accordance with the following terms and
conditions:
1. STATEMENT OF WORK
1.1 Twin Sun shall furnish (i) computer consulting, programming services and
related software services as described in Schedule A; and (ii) install the
software programs identified in Schedule B. Twin Sun shall use reasonable
efforts to perform the Work in accordance with the Project Plan set out in
Schedule C (the "Project Plan").
1.2 Additional consulting, programming services and related software services
(the "Additional Services") shall be provided pursuant to individual "Work
Orders" (an example which is enclosed as Schedule D) executed by both
parties and containing such terms and conditions as the parties mutually
agree. In the event of conflict between this Agreement and such Work Order,
the terrns of the Work Order shall prevail.
1.3 All code or software delivered hereunder shall be subject to the ternis and
conditions of the Program Product License Agreement between the parties of
even date herewith.
2. CHARGES
2.1 For the part of the Work described in Schedules A, B and C, as well as for
any Additional Services, Customer shall pay Twin Sun Twin Sun's then
current time and material charges. Twin Sun's current rate classifications
are based on a seven person hour day and are stated in United States
dollars as set forth in Schedule E. Twin Sun's rate classifications are
subject to change by Twin Sun upon three (3) months' prior written notice
to Customer.
2.2 Customer shall pay any reasonable expenses incurred by Twin Sun in
performing the Work, including without limitation, transportation, travel,
accommodations, meals, telephone and facsimile expenses.
2.3 Invoices shall be submitted monthly and are payable by Customer, in United
States dollars, within thirty (30) days from receipt. Without prejudice to
any rights and remedies Twin Sun may have under this Agreement or
otherwise, Twin Sun reserves the right to charge Customer and Customer
agrees to pay a late payment fee at the rate of one and one half
percent (1.5%) per month (or part thereof) from the due date for payment
until payment in full has been made.
2.4 Except for taxes on Twin Sun's income levied by the United States and New
York State government, the charges and fees set forth herein do not include
national, federal, state, county or local sales, property, use and/or other
applicable taxes, however designated and whether levied or based upon this
Agreement, the Work rendered hereunder, its use, or any end product
resulting therefrom. If any such taxes are hereafter levied or charged
retroactively or otherwise, such taxes together with any interest and/or
penalties assessed thereon shall be the responsibility of Customer and
shall be paid by Customer.
3. PENALTIES
If the Installation is not completed within the time set out in the Project
Plan or if the installed software has been rejected on reasonable
grounds("Delay"), Twin Sun shall pay Customer a penalty of USS 500 per full
day of Delay up to a maximum of twenty (20) days, i.e. a maximum penalty of
US$ 10,000. The penalty shall be offset against the License fee due
according to the Program Product License Agreement between the parties of
even date herewith and shall be the exclusive remedy if Twin Sun does not
install the software in accordance with the Project Plan.
4. TERM
This Agreement is effective from the date hereof and shall remain in force
until either party tenninates the Agreement with three (3) months prior
written notice, provided that both parties first complete all obligations
under any then executed Work Orders.
5. CONFIDENTIALITY AND RIGHTS IN DATA
5.1 Twin Sun shall not disclose to any third party or use for any purposes
other than in connection with its obligations hereunder Customer's
confidential inforination concerning Customer's business, customers, trade
secrets, methods or processes, without the prior written consent of
Customer. Excluded from the foregoing confidentiality obligation is
information which: (a) at the time of disclosure is part of the public
domain other than through a breach of this Agreement; (b) at the time of
disclosure, is already known to Twin Sun; (c) subsequent to the time of
disclosure, becomes part of the public domain through no fault of Twin Sun;
or (d) is independently developed by Twin Sun without a breach of this
Agreement.
5.2 The Work and all related information received by Customer from Twin Sun,
whether written or oral, have been developed by Twin Sun at great
expenditures of time, resources and money. Therefore, Customer shall use a
high degree of care to preserve and safeguard the confidentiality of the
Work and all related information received from Twin Sun. The
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Work shall not be duplicated and/or disclosed to others, in whole or in
part, without Twin Sun's prior written consent. The foregoing restriction
shall not apply to employees of Customer to the extent that such
duplication or disclosure is reasonably necessary to Customer's use of the
Work. However, it is agreed that Customer will take precautions to insure
that all such employees are under an express obligation in writing to
maintain confidentiality with respect thereto. Customer shall enforce any
violation of its confidentiality agreement by its employees for the benefit
of Twin Sun. A copyright notice on any data does not by itself constitute
or evidence a publication or public disclosure.
5.3 Unless agreed otherwise in connection with a specific Work Order, all
ideas, concepts, inventions, designs, techniques, software programs, and
products conceived, designed or developed by Twin Sun or jointly with
Customer under this Agreement shall be the exclusive property of Twin Sun.
In furtherance of the foregoing, Customer shall without charge to Twin Sun
but at Twin Sun's expense, execute, acknowledge and/or deliver all papers
and documents as may be necessary or advisable to vest ownership of such
ideas, concepts, inventions, designs, techniques, software programs and
products in Twin Sun and to enable Twin Sun to obtain copyright, trademark
or patent registrations therefor. For avoidance of doubt, such ideas,
concepts, inventions, designs, techniques and products developed by the
Customer on its own, are the exclusive property of Customer and shall be
covered by Section 5.1 hereof.
6. NO WARRANTY
EXCEPT FOR WHEN TWIN SUN HAS PROVIDED AN EXPLICIT WARRANTY IN A WORK ORDER,
CUSTOMER AGREES THAT THE WORK (INCLUDING THE RESULTS AND OUTCOMES THEREOF)
IS PROVIDED WITHOUT ANY WARRANTY OF ANY KIND. TWIN SUN MAKES NO WARRANTY,
EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF
MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, WITH RESPECT TO THE
WORK.
7. LIMITED LIABILITY
7.1 CUSTOMER AGREES THAT TWIN SUN'S LIABILITY HEREUNDER FOR ANY DAMAGES
INCLUDING LIABILITY FOR BREACH OF WARRANTY, NEGLIGENCE, STRICT LIABILITY IN
TORT, OR OTHERWISE, REGARDLESS OF FORM OF ACTION, SHALL BE LIMITED TO THE
TOTAL AMOUNT ACTUALLY PAID BY CUSTOMER TO TWIN SUN FOR WORK DURING THE SIX
(6) MONTH PERIOD IMMEDIATELY PRECEDING THE TIME THAT THE CAUSE OF ACTION
AROSE OR ONE HUNDRED THOUSAND DOLLARS ($100,000) WHICHEVER IS LESS.
CUSTOMER AGREES THAT THE FOREGOING SHALL BE ITS SOLE REMEDY AND EXPRESSLY
WAIVES ALL OTHERS.
3
7.2 NO ACTION, REGARDLESS OF FORIN1, ARISING OUT OF THE TRANSACTIONS UNDER THIS
AGREEMENT MAY BE BROUGHT BY CUSTOMER MORE THAN TWELVE (12) MONTHS FROM THE
CLAIMED ACT OR OMISSION GIVING RISE TO THE ACTION BY CUSTOMER AGAINST TWIN
SUN, UNLESS THE APPLICABLE STATUTE OF LIMITATIONS PROVIDES A SHORTER
PERIOD, IN WHICH CASE SUCH SHORTER PERIOD SHALL APPLY.
7.3 IN NO EVENT SHALL TWIN SUN OR CUSTOMER BE LIABLE FOR INCIDENTAL, SPECIAL OR
CONSEQUENTIAL DAMAGES EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
8. RESPONSIBILITIES OF CUSTOMER
8.1 Customer will designate prior to the commencement of Work under this
Agreement a project manager or administrator to whom all communications may
be addressed, and who shall have complete responsibility for Customer in
all aspects of this Agreement. (S)He shall be responsible for providing
Twin Sun's personnel with required inforination, data, and decisions
relative to technical requirements within three (3) working days from
receipt of Twin Sun's request, unless a mutually agreed upon extended
response date is established.
8.2 Customer will provide, at no charge to Twin Sun, the following:
(a) satisfactory office space and facilities for Twin Sun personnel when
assigned to Customer's premises for the perforinance of tasks under
this Agreement;
(b) telephone service, typing and data reproduction services necessary to
supportTwin Sun personnel while working on Customer premises; and
(c) necessary computer time, communication networks, computer operators
and tapes, terminal operators, disks and related supplies at
Customer's premises.
9. TERMINATION
In addition to what is set forth in Article 2, this Agreement shall
terminate immediately if Customer: (a) shall fail to comply with any term
or condition of this Agreement and such failure shall continue for a period
in excess of thirty (30) days after receipt of Twin Sun's notice advising
Customer of such failure; or (b) shall become insolvent or a party to any
bankruptcy or receivership proceeding or any similar action affecting the
affairs or the property of Customer. Customer shall upon such termination
return to Twin Sun the result of any Work for which Twin Sun has not been
paid together with all copies and modifications thereof in any form.
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10. GENERAL
10.1 No modifications of this Agreement shall be valid or binding on either
party unless acknowledged in writing and signed by the duly authorized
officer of each party. All notices or other communications given under this
Agreement shall be in writing, sent to the address hereinbefore set forth
as principal place of business or such other addresses as Twin Sun or
Customer may designate in writing.
10.2 Both parties understand and agree that violation of any provision of this
Agreement may cause damage to the other party in an amount which is
impossible or extremely difficult to ascertain. Accordingly, without
limitation to any other remedy available at law, the injured party shall be
entitled to seek injunctive relief restraining the other party from
continuing to violate the terms and provisions of this Agreement.
10.3 Neither party shall be liable to the other for any delay or failure to
perform its obligations under this Agreement (other than Customer's
obligation to remit Payment hereunder) if such delay or failure arises from
any cause beyond the reasonable control of such party, including but not
limited to labor disputes, strikes, other labor or industrial disturbances,
acts of God, floods, lightning, shortages of materials, utility or
communication failures, earthquakes, casualty, war, riots, actions,
restrictions, regulations or orders of any government, agency or
subdivision thereof
10.4 The parties acknowledge that each has read all the terms of this Agreement,
is authorized to enter into it, agrees to be bound by its terms and
conditions and that it is the complete and exclusive statement of the
agreement between the parties which supersedes all prior communications and
agreements relating to the subject matter of this Agreement.
10.5 If any provision of this Agreement shall be deemed invalid and/or
inoperative, under any applicable statute or rule of law, it is to that
extent to be deemed modified so as to provide the most similar enforceable
economic effect and shall have no effect as to any other provision
contained in this Agreement.
10.6 Any forbearance or delay on the part of either party in enforcing any
provision of this Agreement or any of its rights hereunder shall not be
construed as a waiver of such provision or of a right to enforce same.
10.7 This Agreement is for the sole and exclusive benefit of Twin Sun and
Customer and shall not be deemed to be for the direct or indirect benefit
of the clients or customers of Customer or Twin Sun or any entities
associated in any way with Customer or Twin Sun. Any entities associated
with Customer in any business relationship shall not be deemed to be third
party beneficiaries of this Agreement or have any other contractual
relationship with Twin Sun for any reason.
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10.8 The provisions of Articles and/or Sections 1.3, 5, 6, 7, and 10.8 shall
survive termination of this Agreement or any portion thereof Furthermore,
any provision that is by implication intended to continue in force after
termination shall not be affected by termination of this Agreement or any
portion hereof.
10.9 Any claim or dispute relating to this Agreement (including without
limitation, claims involving allegations in tort) shall be governed by the
laws of the State of New York. The parties hereby: (a) waive all right to
trial by jury; (b) consent to the jurisdiction of the Supreme Court of the
State of New York and of the United States District Court for the Southern
District of New York; and (c) consent that any process or notice of motion
or other application to the court or judge thereof may be served within or
without the State of New York by registered or certified mail, or by
personal service, provided a reasonable time for appearance is allowed.
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed by
their duly authorized representatives.
* * *
TWIN SUN, INC. XXXXXX.XXX, INC.
BY:__________________________ BY: ___________________________
NAME:________________________ NAME:__________________________
TITLE:_______________________ TITLE: ________________________
DATE: _______________________ DATE:__________________________
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CONSULTING SERVICES AGREEMENT
SCHEDULE A
- CONSULTING, PROGRAMMING SERVICES AND RELATED SOFTWARE SERVICES -
o HARDWARE AND DATABASE REQUIREMENT REVIEWS
o PROJECT PLANNING WITH MILESTONE REVIEWS
o INSTALLATION, ADAPTATION AND TRAINING
o CUSTOMER SYSTEM AMENDMENT REQUESTS
o DEVELOPMENT, MODIFICATIONS AND ENHANCEMENT OF SOFTWARE PROGRAMS
o INSTALLATION OF INTERNAL COMMUNICATION LINES
* * *
7
CONSULTING SERVICES AGREEMENT
SCHEDULE B
- SOFTWARE PROGRAMS TO BE INSTALLED -
1. TWIN SUN'S WEBTRADE SYSTEM CONSISTING OF:
o Dynamic Perl-based HTML pages
o The Apache web server including mod-Perl
o Perl libraries for accessing TCAM's MA-Pl servers
o Custom graphics provided by the Customer for inclusion on
trading screens
Above software shall be installed at [ADDRESS]
2. STATIC HTML CONTENT PROVIDED BY INTREX. COM
Above software shall be installed at [ADDRESS]
* * *
8
CONSULTING SERVICES AGREEMENT
SCHEDULE C
- PROJECT PLAN -
Day: Action:
--------------------------------------------------------------------------------
September 10, 1999 The Installation shall have been completed
and the Licensed Program Products (as
defined in Schedule A to the Program
Product License Agreement of even date
herewith) shall have been accepted in
Accordance with Section 6.5 of the Program
Product License Agreement of even date
herewith.
--------------------------------------------------------------------------------
* * *
9
CONSULTING SERVICES AGREEMENT
SCHEDULED
- WORK ORDER -
Work Order #: _________________ Project Code ID #: ________________
Date of Order: _________________
Date Order
Received: _________________
Requested By: _________________ User Priority: ________________
Description of the work to be performed:
Analysis Performed By: ________________ Work Performed By: ________________
Date Analysis Performed: ________________ Date Completed: ________________
Estimated Number of Work to be
Days: ________________ Acceptance Tested: |_| Yes |_| No
CLIENT SIGNATURE:
_____________________________ Date: _____________________________
_____________________________ Date: _____________________________
TWIN SUN APPROVALS:
_____________________________ Date: _____________________________
_____________________________ Date: _____________________________
WORK RECEIVED AND ACCEPTED:
_____________________________ Date: _____________________________
* * *
10
CONSULTING SERVICES AGREEMENT
SCHEDULE E
- DAILY CONSULTING SERVICES CHARGES -
PROJECT MANAGER/TEAM LEADER $1,500.00
CONSULTANT $1,000.00
The charges are based upon a person day comprised of seven (7) hours.
* * *
TWIN SUN, INC.
PROGRAM PRODUCT LICENSE AGREEMENT
Agreement made as of the 26th day of August 1999 by and between Twin Sun, Inc.
("Twin Sun"), with its principal office at 000 X. Xxxxxxxxx Xx. #2055, Xx
Xxxxxxx, XX 00000 and Xxxxxx.Xxx, Inc. ("Customer"), with its principal office
at 000 Xxxxxxx Xxxxxx, 0xx Xxxxx, Xxxxx, XX 00000.
1 . DEFINITIONS
As used in this document the following terms shall have the following meanings:
1.1 "ACCEPTANCE" shall mean that Customer shall have no further claims
under this
Agreement with respect to the function and performance of the Program
Products. (except claims under Articles 7 and 8).
1.2 "ACCEPTANCE TEST" shall mean the testing process for the Program
Products performed in accordance with the Test Plans.
1.3 "AGREEMENT" shall mean this agreement, any attached exhibits or
schedules and any amendments to this Agreement, which are in writing
and signed by both parties.
1.4 "CUSTOMER" shall have the meaning stated in the preamble.
1.5 "DOCUMENTATION" shall mean the standard technical and user operations
manuals for the Program Products.
1.6 "ERROR" shall mean an error in the code of the Program Products which
prevents the Program Products from operating in all material respects
in accordance with the Specifications.
1.7 "HARDWARE" shall mean Customer's hardware, identified in Schedule D to
this Agreement.
1.8 "LICENSE FEE" shall mean the license fee for each Licensed Program as
specified in Schedule B to this Agreement.
1.9 "LICENSED PROGRAMS" shall mean the Program Products and their
Documentation.
1.10 "OBJECT CODE FORMAT" shall mean the Program Products in a form which is
not convenient to human understanding of the respective program's logic
but which is appropriate for execution or interpretation by a computer.
1.11 "PROGRAM PRODUCTS" shall mean such software as identified in Schedule A
1.12 "SOURCE CODE" shall mean a set of instructions expressed in a
non-machine language and from which the logic of a computer program can
be derived.
1.13 "SPECIFICATIONS" shall mean the functional description of the Program
Products identified in Schedule C to this Agreement.
1.14 "TEST PLANS" shall mean the objectives and procedures required to
demonstrate that the Program Products operate in all material respects
in accordance with the Specifications.
1.15 "TEST PERIOD" shall have the meaning stated in Section 6.2.
1.16 "TWIN SUN" shall mean Twin Sun, Inc., 000 X. Xxxxxxxxx Xx. #0000, Xx
Xxxxxxx, XX 00000.
1.17 "USE" shall mean to load, execute and display the Licensed Programs.
Additionally, Use shall include Customer's right to make one (1) copy
of the Licensed Programs for back-up or archival purposes.
2. LICENSE
2.1 Twin Sun hereby grants Customer a personal, nontransferable,
non-exclusive, and irrevocable license to Use one (1) copy of the
Program Products in its present normal business operation on the
Hardware. One copy of the Program Products may also be used on a
back-up computer during a reasonable, temporary period of inoperability
of the Hardware.
2.2 Customer shall not use the Licensed Programs in the operation of a
service bureau or any other manner which would result in the Use of the
Licensed Programs for processing transaction(s) to which Customer is
not a party. Notwithstanding the foregoing, Customer may let its
wholly-owned subsidiaries that are listed in Schedule E use the
Licensed Programs for processing their respective transactions.
Customer may upon written notice to Twin Sun add such new wholly-owned
subsidiary to the list that is incorporated or acquired in the future.
2.3 All Licensed Programs and modifications made to the Licensed Programs
shall remain the property of Twin Sun.
2.4 Customer shall not reverse engineer, decompile or disassemble the
Licensed Programs, which initially will be provided in Object Code
Format only.
2.5 The day.Twin Sun and all its affiliates stop offering maintenance of
the Licensed Programs, Customer shall be entitled to receive the Source
Code to the Licensed Programs, provided that Customer pays an
additional license fee corresponding to 50% of
2
the License Fee paid by Customer at such day. The Source Code may be
used only in accordance with the terrns and conditions of this
Agreement.
3. DISCLOSURE
3.1 Twin Sun shall not disclose to any third party or use for Twin Sun's
own purposes Customer's confidential information concerning Customer's
business, trade secrets, methods or processes without the prior written
consent of Customer. Excluded from the foregoing confidentiality and
limitation obligation is information which: (a) is coded into the
Program Products; (b) at the time of disclosure is part of the public
domain other than through a breach of this Agreement; (c) at the time
of disclosure, is already known to Twin Sun; (d) subsequent to the time
of disclosure, becomes part of the public domain through no fault of
Twin Sun; or (e) is independently developed by Twin Sun without a
breach of this Agreement.
3.2 The Licensed Programs and all related information received by
Customer from Twin Sun, whether written or oral, have been developed
by Twin Sun at great expenditures of time, resources and money.
Therefore, Customer shall use a high degree of care to preserve and
safeguard the confidentiality of the Licensed Programs and all
related information received from Twin Sun. The Licensed Programs
shall not be duplicated and/or disclosed to others, in whole or in
part, without Twin Sun's prior written consent. The foregoing
restriction shall not apply to employees of Customer to the extent
that such duplication or disclosure is reasonably necessary to
Customer's Use of the Licensed Programs. However, it is agreed that
Customer will take precautions to insure that all such employees are
under an express obligation in writing to maintain confidentiality
with respect thereto. Customer shall enforce any violation of its
confidentiality agreement by its employees for the benefit of Twin
Sun.
3.3 The Licensed Programs, its logos, product names and other support
materials, if any, are either patented, copyrighted, trademarked, or
otherwise proprietary to Twin Sun. Customer agrees never to remove any
such notices and product identification. A copyright notice on the
Licensed Programs shall not be deemed in and of itself to constitute or
evidence a publication or public disclosure.
4. MODIFICATION
4.1 In the event that the Program Products later are provided to Customer
as Source Code, Customer, upon prior notice to Twin Sun, shall have the
night to modify and create derivative works of the Licensed Programs
through the services of its employees or independent contractors, who
shall prior to any such modification have entered into a written
confidentiality agreement with Customer reasonably satisfactory to Twin
Sun.
3
4.2 Customer's right to modify the Licensed Programs shall be subject to
the following conditions:
(a) prior to making any modifications or derivative works,
Customer shall first make an archive tape of the Program
Products which shall be maintained by Customer and at Twin
Sun's request, made available to Twin Sun at no charge;
(b) all modifications or derivative works shall be included in the
definition of Licensed Programs. Customer shall ensure that it
has executed agreements with its employees or independent
contractors to cause ownership of modifications to vest with
Twin Sun and shall perform any acts to cause ownership thereof
to vest in Twin Sun;
(c) no modification or derivative works shall allow Customer to
Use the Licensed Programs (or any portion thereof) to perform
functions other than those specified in the Specifications
without Twin Sun's prior written consent, which consent shall
not be unreasonably withheld, delayed or conditioned; and
(d) Customer shall defend, at its expense, any action brought
against Twin Sun which is based on any modification made by or
at the request of Customer to the Licensed Programs by an
entity other than Twin Sun which allegedly infringes a
copyright, patent or other proprietary right of a third party.
Customer shall pay all costs and damages awarded against Twin
Sun in such action which are attributable to such claim.
4.3 Any modification solely made by Customer in accordance with Section
4.1, may not be licensed to other parties by Twin Sun without prior
written approval by Customer, such approval not to be unreasonably
withheld, delayed or conditioned.
5. LICENSE FEES AND OTHER REQUIRED PAYMENTS
5.1 The License Fee shall be paid in United States dollars by wire transfer
to the account designated by Twin Sun from time to time or as otherwise
agreed.
5.2 Without duplication of any amount payable to Customer under the
Consulting Services Agreement between the parties of even date
herewith, Customer shall pay any expenses incurred by Twin Sun in
performing its obligations hereunder, including without limitation,
transportation, travel, accommodations, meals, telephone and facsimile
expenses, provided such expenses have been approved by Customer in
advance.
5.3 Customer shall in addition to the License Fees pay for any work
performed by Twin Sun to: (a) install the Program Products; (b) modify
the Program Products; or (c) maintain the Program Products (except
under the Warranty Section of this Agreement). Twin Sun shall
4
perform such work in accordance with Twin Sun's Consulting Services or
Maintenance Agreement, as applicable.
5.4 Invoices shall be issued as set out in Schedule B and shall be payable
within thirty (30) days of the date of invoice. In addition to any
other rights Twin Sun may have, Customer agrees to pay, a late payment
fee on any amount overdue for payment by Customer at the rate of one
and one-half percent (1.5%) per month (or part thereof calculated on
the basis of the actual number of days during such month) from the due
date until payment has been made in full.
5.5 Except for taxes on Twin Sun's income levied by the United States and
New York State Government, the charges and fees set forth herein do not
include national federal, state, county or local sales, property,
investment use and/or other applicable taxes however designated and
whether levied or based upon charges or fees arising under this
Agreement. If any such taxes are hereafter levied or charged
retroactively or otherwise, such taxes shall be the responsibility of
Customer and shall be paid by Customer.
6. TESTING AND CORRECTIONS
6.1 Customer shall within ten (10) days from signing or this Agreement
prepare Test Plans reasonably acceptable to Twin Sun and such data
necessary for performing the Acceptance Test. If requested by Customer,
TCAM will assist Customer in preparing the Test Plans. Such assistance
will be provided in accordance with the Consulting Services Agreement
of even date herewith.
6.2 Customer shall test the Program Products before it is put into a
production environment. Customer shall accept or reject the Program
Products following its tests in writing within five (5) days after
delivery of the Program Products to Customer or in the event
installation of the Program Products is performed by Twin Sun on
Customer's request, after notice from Twin Sun that the Program
Products or any portion thereof (if the Acceptance Test is performed in
stages) are ready to undergo the Acceptance Test ("Test Period").
6.3 Within two (2) days after perforinance of the Acceptance Test or
portion thereof (if the Acceptance Test is performed in stages),
Customer agrees either to give its Acceptance of each portion of the
Program Products on completion of the applicable Acceptance Test or to
disapprove such results and provide detailed written reasons for such
disapproval. If Customer does not accept the Program Products or the
respective portion thereof, it shall provide Twin Sun with sufficient
documentation supporting the Error giving rise to the non-acceptance
and shall duplicate the condition of the Program Products or portion
thereof which resulted in such non acceptance. Customer shall not
withhold its Acceptance for causes not attributable to Twin Sun.
5
6.4 If the Program Products or any portion thereof fails to pass the
Acceptance Test, Twin Sun will correct all documented and duplicated
Errors. Within three (3) business days after such corrections have been
made, Customer will retest the Program Products or portion thereof
affected by the Errors. Such retest shall be completed within a time
period corresponding to the Test Period ("Retest Period"). Should a new
Error be detected the foregoing procedure will be repeated as necessary
until the Acceptance Test has been completed successfully. If, prior to
Acceptance by Customer, and after reasonable efforts by Twin Sun (which
shall not exceed one hundred twenty (120) days from Twin Sun's receipt
of sufficient documentation and duplication as specified in Section 6.3
relating to the respective Error), Twin Sun shall be unable to remedy
the respective Error in the Program Products, Customer, at its option,
shall be entitled to return the Licensed Programs to Twin Sun and Twin
Sun shall refund to Customer the License Fees actually paid to Twin Sun
by Customer. Upon such payment, this Agreement shall terminate with no
further obligation or liability on the part of either party.
6.5 Acceptance of the Program Products or any portion thereof shall be
deemed to have occurred upon the earlier to occur of the following: (a)
Customer's written acceptance of the applicable Acceptance Test
results; (b) at the end of the Test Period or Retest Period, as
applicable, if Customer has not given its written disapproval of the
test results, stating therein its reason for such disapproval in which
case Customer must duplicate the Errors within five (5) business days
of the date of its written disapproval; or (c) upon Customer's first
use of any portion of the Program Products in other than a test
environment.
6.6 Twin Sun shall be entitled to perforin all system diagnostics and error
corrections from Twin Sun's offices. Upon Acceptance Twin Sun shall
have the right to remove any by Twin Sun provided diagnostic software.
7. LIMITED WARRANTY
7.1 TWIN SUN WARRANTS THAT THE LICENSED PROGRAMS, UPON ACCEPTANCE AND FOR A
PERIOD OF THREE (3) MONTHS THEREAFTER, WILL OPERATE WITHOUT AN ERROR.
IN ORDER TO PROVIDE THE WARRANTY CONTEMPLATED BY THIS SECTION, CUSTOMER
SHALL DOCUMENT AND DUPLICATE ANY ERROR. CUSTOMER'S EXCLUSIVE REMEDY FOR
THE BREACH OF WARRANTY SHALL BE LIMITED TO THE CORRECTION OF THE ERROR
BY TWIN SUN AS PROMPTLY AS REASONABLY POSSIBLE AND IN A MANNER
DETERMINED BY TWIN SUN OR, AT THE OPTION OF TWIN SUN, TO REFUND PAYMENT
OF THE APPLICABLE LICENSED PROGRAM LICENSE FEE TO CUSTOMER UPON RETURN
OF THE LICENSED PROGRAM AND RELATED DOCUMENTATION BY CUSTOMER TO TWIN
SUN. EXCEPT FOR THE FOREGOING WARRANTY, TWIN SUN MAKES NO OTHER
WARRANTY, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, THE
6
IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR
PURPOSE.
7.2 THE WARRANTY PROVIDED HEREIN SHALL IMMEDIATELY TERMINATE UPON ANY
MODIFICATION MADE TO THE LICENSED PROGRAMS BY AN ENTITY OTHER THAN TWIN
SUN.
8. PATENT AND COPYRIGHT INDEMNIFICATION
Twin Sun will defend, at its expense, any lawsuit against Customer to
the extent that it is based on the claim that Customer's Use of the
Licensed Programs in the United States infringe a third party's
copyright, registered patent or other intellectual property right. Twin
Sun will pay any costs and damages finally awarded against Customer in
such action which directly result from such claim, provided that: (a)
Customer notifies Twin Sun immediately upon receiving notice that such
a claim has been threatened or instituted (whichever is first to occur)
in writing; (b) such claim is not based upon designs, information or
materials supplied to Twin Sun by Customer-, and (c) that such claim is
not based upon or attributable to any modifications made to the
Licensed Programs by or at the request of Customer. Twin Sun shall be
entitled to control the defense of any such claim, including without
limitation (a) the selection of counsel, (b) defense strategy, and (c)
settlement. Customer shall cooperate and assist Twin Sun (at Twin Sun's
expense) in the defense of such claim. If, as a result of any such
claim, litigation or threat thereof, Customer is permanently enjoined
from Using the Licensed Programs by a final, non-appealable decree,
Twin Sun at its option and expense may: (a) obtain for Customer the
right to continue to Use the Licensed Programs; or (b) may replace or
modify the Licensed Programs so as to settle such claim, litigation or
the threat thereof provided that such replacement contains
substantially the same functions. If such settlement, replacement or
modification of the Licensed Programs is not reasonably practical in
the opinion of Twin Sun, after giving due consideration to all factors
including financial expense, Twin Sun may discontinue and terminate
this Agreement upon written notice to Customer and shall refund to
Customer the unamortized portion of the License Fee actually paid
hereunder based upon a four (4) year straight-line depreciation. The
foregoing states the entire liability of Twin Sun with respect to any
infringement by the Licensed Programs or any parts thereof, and
Customer hereby expressly waives any other such liabilities.
9. LIMITED LIABILITY
9.1 TWIN SUN'S LIABILITY TO CUSTOMER INCLUDING LIABILITY FOR ANY BREACH OF
WARRANTY, NEGLIGENCE, STRICT LIABILITY IN TORT, OR OTHERWISE,
REGARDLESS OF FORM OF ACTION, SHALL BE LIMITED AS DESCRIBED IN ARTICLES
7 AND 8. TWIN SUN'S TOTAL LIABILITY (INCLUDING LIABILITY AS AFORESAID)
TO CUSTOMER OTHER THAN
7
PURSUANT TO ITS OBLIGATIONS UNDER ARTICLE 8 SHALL NOT EXCEED HALF OF
THE LICENSE FEE ACTUALLY PAID BY CUSTOMER TO TWIN SUN FOR THE LICENSED
PROGRAM GIVING RISE TO SUCH LIABILITY.
9.2 NO ACTION, REGARDLESS OF FORM, ARISING OUT OF THE TRANSACTIONS UNDER
THIS AGREEMENT MAY BE BROUGHT BY CUSTOMER MORE THAN TWELVE (12) MONTHS
AFTER ACCEPTANCE OF THE LICENSED PROGRAMS EXCEPT TO THE EXTENT ALLOWED
UNDER ARTICLE 8 HEREOF FOR LIABILITY BASED ON PATENT OR COPYRIGHT
INFRINGEMENT.
9.3 IN NO EVENT SHALL TWIN SUN BE LIABLE FOR INCIDENTAL, SPECIAL OR
CONSEQUENTIAL DAMAGES (INCLUDING WITHOUT LIMITATION LOST PROFITS) EVEN
IF EITHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
10. NO SUBLICENSE
Customer shall not sublicense, assign or transfer the Licensed
Programs. Notwithstanding the prohibitions regarding sublicensing,
assignment or transfer of the Licensed Programs and/or to the extent an
entity other than Customer (including Customer's affiliates,
subsidiaries or corporate partners) is granted the right to Use or
access the Licensed Programs by Twin Sun (as done in Section 2.2),
Customer shall: (a) obtain an agreement in writing (for the benefit of
Twin Sun) wherein such entity agrees to be bound by the provisions of
this Agreement, to look solely to Customer for all warranty, training
and maintenance support and relief for any injury or damage resulting
from the use or inability to use the Licensed Programs; (b) defend at
its expense any action brought against Twin Sun by such entity based
upon any claim relating to the Licensed Programs; (c) pay any costs and
damages awarded against Twin Sun in any action brought by such entity;
(d) be fully responsible for any additional License Fee due because of
such Use; and (e) be fully responsible for any breach by such entity of
any obligations set out in this Agreement and indemnify Twin Sun for
such breach as if committed by Customer on its own account.
11. TERMINATION
In addition to what is set forth in Sections 6.4 and 8.1, this
Agreement shall terminate immediately if Customer: (a) shall fall to
comply with any term or condition of this Agreement and such failure
shall continue for a period in excess of thirty (30) days after receipt
of Twin Sun's notice advising Customer of such failure; or (b) shall
become insolvent or a party to any bankruptcy or receivership
proceeding or any similar action affecting the affairs or the property
of Customer. Customer shall upon such termination return to Twin Sun
the Licensed Programs together with all copies and modifications in
8
any form. Customer shall not be entitled to any refund of the paid
License Fee in the event that this Agreement is tenninated in
accordance with this Article. Without limitation to the foregoing, Twin
Sun upon default by Customer as provided herein, shall have the right
to take immediate possession of the Licensed Programs wherever located
without notice or demand.
12. COOPERATION & SUPPORT
Customer agrees to cooperate with Twin Sun with respect to this
Agreement including without limitation, providing Twin Sun at no charge
and as requested reasonable: computer hardware, communication networks,
computer operators, terminal operators, test data and facilities, and
in general, Customer agrees to provide all information and access to
key personnel needed to develop and/or implement the Licensed Programs.
13. TRAINING
Twin Sun shall provide scheduled training to Customer in the use and
operation of the Licensed Programs. The training will be conducted in
not less than three (3) hour sessions. Such hours will be charged in
accordance with the Consulting Services Agreement but the materials
provided will be free of charge. If the training is held at Twin Sun's
offices in New York, Customer shall assume and be responsible for the
payment of all transportation, room and board expenses of its employees
attending such training
14. SITE PREPARATION
Except for what is agreed in the Consulting Services Agreement between
the parties of even date herewith, Customer shall ensure that it has
all the hardware, software, communications and other required elements
in order to install, test and place the Program Products into live
production use (including without limitation the items described in
Schedule D). Further, except for what is agreed in the Consulting
Services Agreement of even date herewith, Customer shall be responsible
for the design and management of its computer and communications
network.
15. GENERAL
15.1 No modifications of this Agreement shall be valid or binding on either
party unless acknowledged in writing and signed by the duly authorized
officer of each party. All notices or other communications given under
this Agreement shall be in writing, sent to the address herein before
set forth as principal place of business or such other addresses as
Twin Sun or Customer may designate in writing.
15.2 Both parties understand and agree that violation of any provision of
this Agreement may cause damage to the other party in an amount which
is impossible or extremely difficult to
9
ascertain. Accordingly, without limitation to any other remedy
available at law, the injured party shall be entitled to seek
injunctive relief restraining the other party from continuing to
violate the tenris and provisions of this Agreement.
15.3 Neither party shall be liable to the other for any delay or failure to
perforrn its obligations under this Agreement (other than Customer's
obligation to remit payment hereunder) if such delay or failure arises
from any cause beyond the reasonable control of such party, including
but not limited to labor disputes, strikes, other labor or industrial
disturbances, acts of God, floods, lightning, shortages of materials,
utility or communication failures, earthquakes, casualty, war, riots,
actions, restrictions, regulations or orders of any government, agency
or subdivision thereof
15.4 The parties acknowledge that each has read all the terms of this
Agreement, is authorized to enter into it, agrees to be bound by its
terms and conditions and that it is the complete and exclusive
statement of the agreement between the parties which supersedes all
prior communications and agreements between the parties relating to the
subject matter of this Agreement.
If any provision of this Agreement shall be deemed invalid and/or
inoperative, under any applicable statute or rule of law, it is to that
extent to be deemed modified so as to provide the most similar
enforceable economic effect and shall have no effect as to any other
provision contained in this Agreement.
15.6 Customer shall not depict, refer to or in any other manner use the
Licensed Programs or any portion thereof in any advertisements, without
the prior written consent of Twin Sun. Any such advertisement must
state that Twin Sun is the owner of the copyright for the Licensed
Programs.
15.7 Twin Sun and Customer agree not to hire, attempt to hire, or retain as
consultants or otherwise, employees of the other party directly or
through any third party or entity, for a period of one (1) year
subsequent to employee's last day of work for employee's respective
employer regardless of the circumstances surrounding employee's cause
of tennination of employment.
15.8 Each of Customer and Twin Sun shall designate one responsible
individual with authority as Project Coordinator to serve as leaders of
the project. Customer's Project Coordinator shall provide or coordinate
the provision of information about Customer, its practice, external and
internal procedures and such other information as Twin Sun may
reasonably require in order to fulfill its obligations under this
Agreement.
15.9 Any forbearance or delay on the part of either party in enforcing any
provision of this Agreement or any of its rights hereunder shall not be
construed as a waiver of such provision or of a right to enforce same.
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15.10 This Agreement is for the sole and exclusive benefit of Twin Sun and
Customer and shall not be deemed to be for the direct or indirect
benefit of the clients or customers of Customer or Twin Sun or any
entities associated in any way with Customer or Twin Sun. Any entities
associated with Customer in any business relationship shall not be
deemed to be third party beneficiaries of this Agreement or have any
other contractual relationship with Twin Sun for any reason.
15.11 Twin Sun is an independent contractor to Customer and this Agreement
does not create a partnership, joint venture, employment, agency or
other similar relationship between the parties.
15.12 Twin Sun shall be entitled to perform all system diagnostics and error
corrections from Twin Sun's offices.
15.13 The provisions of Articles and/or Sections 3, 4, 5, 7, 8, 9, 15.13 and
15.14 shall survive termination of this Agreement or any portion
thereof. Furthermore, any provision that is by implication intended to
continue in force after tennination shall not be affected by
termination of this Agreement or any portion hereof.
15.13 Any claim or dispute relating to this Agreement (including without
limitation, claims involving allegations in tort) shall be governed by
the laws of the State of New York. The parties hereby: (a) waive all
right to trial by jury; (b) consent to the jurisdiction of the Supreme
Court of the State of New York and of the United States District Court
for the Southern District of New York; and (c) consent that any process
or notice of motion or other application to the court or judge thereof
may be served within or without the State of New York by registered or
certified mail, or by personal service, provided a reasonable time for
appearance is allowed.
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed by
their duly authorized representatives.
* * *
TWIN SUN, INC. XXXXXX.XXX, INC.
BY: ____________________________ BY: ____________________________
NAME: ____________________________ NAME: ____________________________
TITLE: ____________________________ TITLE: ____________________________
DATE: ____________________________ DATE: ____________________________
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SCHEDULE A TO PROGRAM PRODUCT LICENSE AGREEMENT
BETWEEN TWIN SUN, INC. ("TWIN SUN") AND
XXXXXX.XXX, INC. ("CUSTOMER") DATED AUGUST 26,1999
- PROGRAM PRODUCTS -
Twin Sun's WebTrade product consisting of:
o Dynamic Perl-based HTML pages
o The Apache web server including mod-Perl
o Perl libraries for accessing TCAM's MAPI servers
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SCHEDULE B TO PROGRAM PRODUCT LICENSE AGREEMENT
BETWEEN TWIN SUN, INC. ("TWIN SUN") AND
XXXXXX.XXX, INC. ("CUSTOMER") DATED AUGUST 26,1999
- LICENSE FEE -
1. FEE
Customer shall pay Twin Sun a license fee of $150,000.
2. DUE DATE
The License Fee is due with
a) $ 50,000 upon signing of this Agreement
b) $ 50,000 upon delivery
c) $ 50,000 upon Acceptance
* * *
13
SCHEDULE C TO PROGRAM PRODUCT LICENSE AGREEMENT
BETWEEN TWIN SUN, INC. ("TWIN SUN") AND
XXXXXX.XXX, INC. ("CUSTOMER") DATED AUGUST 26,1999
- SPECIFICATIONS -
WebTrade servers will allow Xxxxxx.xxx's customers to perform the following
operations using a standard web browser:
o View their current positions
o Trade in equities
o View status of and cancel orders
o View their trading history
The above information will be retrieved from the AOM servers residing at TCAM.
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SCHEDULE D TO PROGRAM PRODUCT LICENSE AGREEMENT
BETWEEN TWIN SUN SYSTEMS, INC. ("TWIN SUN") AND
XXXXXX.XXX, INC. ("CUSTOMER") DATED AUGUST 26,1999
-HARDWARE-
o 3 servers - Sun Enterprise 5, 360MHz, 256MB, 8AG13, A21UGEIZ9S-C256CR
o 3 ethernet cards - Fast Ethernet, 100 BaseT, X1033A
o 3 power cords for North America, X31 I L
o 2 Linksys Etherfast 8-port hubs - 100 BaseT
o 3 serial cables, NULL modems, female DB-9 to male D13-15, max 3 feet
o 2 Cisco 2500 series routers, which talk both TI and ethernet
o 1 Rack, sufficient to mount all the equipment
o 12 ethernet cables (100 BaseT) to connect equipment, this count
includes cables supplied by Sun with the machines
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SCHEDULE E TO PROGRAM PRODUCT LICENSE AGREEMENT
BETWEEN TWIN SUN SYSTEMS, INC. ("TWIN SUN") AND
XXXXXX.XXX, INC. ("CUSTOMER") DATED AUGUST 26,1999
- SUBSIDIARIES -
1 . Xxxxxxxxx Xxxxxxx & Co, Inc.
16
