THIS AGREEMENT IS DATED FOR REFERENCE the 2nd day of February, 2000 (hereinafter
referred to as the "Agreement").
BETWEEN:
QUAD-LINQ SYSTEMS INC., a British Columbia company with a place of
business and postal address at #000-000 Xxxx Xxxxxx Xxxxxx, Xxxxxxxxx, Xxxxxxx
Xxxxxxxx (hereinafter referred to as "QUAD-LINQ")
AND:
PHON-NET, a British Columbia company with a place of business and postal address
at #000-000 Xxxx Xxxxxx Xxxxxx, Xxxxxxxxx, Xxxxxxx Xxxxxxxx (hereinafter
referred to as the "Client")
WHEREAS:
A. QUAD-LINQ is a corporation providing services relating to the design and
development of software programs and systems;
B. The Client wishes to hire QUAD-LINQ as a contractor for the purpose of
providing the services set out in Schedule "A" to this Agreement (hereinafter
referred to as "Schedule A");
THEREFORE, in consideration of the mutual promises contained in this agreement,
QUAD-LINQ and the Client agree as follows:
GENERAL
1. QUAD-LINQ's authorized representative is Xxxxxxxxxxx X. Georgelin, who
has full authority to act as agent of QUAD-LINQ in all matters
pertaining to this agreement.
2. The Client's authorized representative is Xxxxx Xxxxxxx (the "Client's
Representative").
3. The Client's Representative has full authority to act as agent of the
Client in all matters pertaining to this Agreement.
EMPLOYMENT RELATIONSHIP
4. QUAD-LINQ is an independent contractor and is not an employee of the
Client and is therefore not entitled to any benefits or payments other
than as set out in this Agreement and schedules to this Agreement.
SERVICES PROVIDED
5. QUAD-LINQ will provide services to the Client according to the terms
set out in Schedule A.
6. If a change to this Agreement or its schedule(s) is required by
QUAD-LINQ or the Client after this Agreement has been executed, any
such change must be in writing and signed by QUAD-LINQ and the Client
(hereinafter referred to as the "Parties") in order to be binding on
either or both of the Parties.
7. The services provided by QUAD-LINQ under this Agreement are subject to
review by the Client according to the terms and on the dates specified
in Review Schedule to this Agreement (hereinafter referred to as
"Schedule B").
PAYMENT FOR SERVICES PROVIDED
8. QUAD-LINQ's fee (the "Fee") and Payment Schedule, for providing the
services set out in Schedule A, are set out in Schedule "C" to this
Agreement (hereinafter referred to as "Schedule C").
9. QUAD-LINQ may submit interim statements of account for services
rendered to the Client from time to time for payment by the Client.
10. The Client shall pay the Fee to QUAD-LINQ on the terms set out in this
Agreement and in Schedule C.
11. QUAD-LINQ may incur certain expenses (hereinafter referred to as the
"Disbursements") in carrying out this Agreement and in providing the
services as set out in Schedule A. Upon QUAD-LINQ providing the Client
with a statement of the Disbursements, the Client shall pay QUAD-LINQ
for those Disbursements notwithstanding that the Disbursements may not
be disclosed in Schedule A or in Schedule C.
CONFLICT OF INTEREST
12. QUAD-LINQ represents that it has made every reasonable effort to
ascertain that it may perform the services set out in Schedule A
without placing itself in a situation of conflict of interest. If a
situation arises or new facts become evident which, in the opinion of
QUAD-LINQ, places QUAD-LINQ in a conflict of interest should it perform
the services set out in Schedule A then QUAD-LINQ may, upon notice to
the Client, terminate this Agreement (hereinafter referred to as a
"Conflict Termination"). If there is a Conflict Termination, the Client
shall pay QUAD-LINQ for services rendered up to the time when the
conflict of interest arose or was discovered. In either case, the
Client shall also pay QUAD-LINQ for any Disbursements incurred by
QUAD-LINQ to the date of Conflict Termination.
ASSIGNMENT OF AGREEMENT/EMPLOYMENT OF SUB-CONTRACTORS
13. QUAD-LINQ may not assign the whole of this Agreement except with the
Client's written consent.
14. Notwithstanding the foregoing, QUAD-LINQ may hire any person, firm, or
corporation as subcontractor to perform any or all of the services set
out in Schedule A.
ACKNOWLEDGEMENT OF DEVELOPER
15. QUAD-LINQ will be recognized on the introduction of the software as the
original developer.
PROPERTY IN MATERIALS AND PROGRAMS
16. Quad-Linq agrees that the Client will hold all rights to the software
developed under Schedule A, provided all terms and conditions as set
out in this agreement are met. The development of this two-line
solution does not in any way rely on the existing one-line software
already in use, nor is its code based on anything developed under
previous contracts.
CONFIDENTIALITY, ACCESS TO CLIENT DOCUMENTS AND INFORMATION
17. The Client shall provide all information and copies of documents which
may be reasonably necessary for QUAD-LINQ (or its assignee or
sub-contractor) to be able to provide the services as set out in
Schedule A.
18. QUAD-LINQ shall take all reasonable precautions to ensure that no
information or documents provided to QUAD-LINQ (or its assignee or
sub-contractor) by the Client shall be made public or shall be provided
to any person by any means unless specifically authorized in writing by
the Client.
TERMINATION BY QUAD-LINQ
19. QUAD-LINQ may terminate this Agreement if:
a) completion or continuation of this Agreement would place
QUAD-LINQ or its employees, assignees or sub-contractors, in a
position of conflict of interest which was not consented to by
the parties whose interests might be compromised; or
b) the Client has failed to pay QUAD-LINQ's statements of
account when due; or
c) the Client has not provided information, documents or
participation reasonably required by QUAD-LINQ to perform the
services set out in Schedule A.
20. If QUAD-LINQ terminates this Agreement for the reasons set out in (b)
or (c) above, the Client shall pay QUAD-LINQ the entire amount due to
QUAD-LINQ (notwithstanding that QUAD-LINQ has not completed the
services set out in Schedule A) pursuant to the Payment Schedule which
amount shall become immediately due and payable.
TERMINATION BY THE CLIENT
21. The Client may terminate this Agreement:
a) at any time and without cause upon 10 days written notice
to QUAD-LINQ if QUAD-LINQ or its employees, assignees or
sub-contractors unreasonably fails to perform the services set
out in Schedule A upon payment of the Disbursements incurred
by QUAD-LINQ (or its assignee or sub-contractor) including any
amounts owing by QUAD-LINQ to its assignee or sub-contractor.
b) at the time of any scheduled review as set out in Schedule
B, if the services provided by QUAD-LINQ at that time do not
reasonably satisfy the criteria set out in the Schedule B and
provided that the Client shall pay QUAD-LINQ for all services
rendered and Disbursements incurred up to that time.
c) at any time, with 10 days written notice to QUAD-LINQ, if
the subject matter of the services set out in Schedule A
ceases to exist and upon payment of:
i) QUAD-LINQ's Disbursements incurred to the date of
termination; and
ii) QUAD-LINQ's fee (including applicable taxes) for services
provided to the date of termination; and
iii) payment to QUAD-LINQ of an amount equal to 50% of the fee
which QUAD-LINQ would have been entitled to charge for
the services remaining to be performed as set out in
Schedule A.
AGENCY RELATIONSHIP BETWEEN THE PARTIES
22. QUAD-LINQ, its shareholders, directors, agents, employees, and
assignees are the agents of the Client in all matters pertaining to the
carrying out of this Agreement.
INDEMNITY
23. The Client agrees that the Client shall indemnify and save harmless
QUAD-LINQ and its shareholders, directors, agents, employees, and
assignees from all actions and claims against QUAD-LINQ or its
shareholders, directors, agents, employees, and assignees arising from
the performance of this Agreement or use of the Resources.
24. Withrespect to any action in defamation arising from the performance of
this Agreement or use of the Resources, the Client shall be deemed to
have published all reports, memoranda, recommendations and oral
statements in connection with the subject matter of this Agreement and
all other matters reasonably arising from the subject matter of the
services set out in Schedule A to this Agreement.
WARRANTIES
25. QUAD-LINQ makes no warranties or conditions, express or implied, and
there are expressly excluded all implied or statutory warranties or
conditions of merchantability or fitness for a particular purpose and
those arising by statute or otherwise in law or from a course of
dealing or usage of trade. Any stated express warranties are in lieu of
all liabilities or obligations for damages arising out of or in
connection with the delivery, use, performance or licensing of the
Resources or in connection with any services performed under this
Agreement.
LIMITATION OF LIABILITY
26. QUAD-LINQ will only be liable for work done directly by QUAD-LINQ or
its employees. QUAD-LINQ will not be liable for any consequences which
are the direct or indirect result of any unauthorized work performed by
anyone not an employee of QUAD-LINQ.
27. In no event whatsoever will QUAD-LINQ be liable for indirect,
consequential, exemplary, incidental, special or other similar damages,
including but not limited to lost profits, lost business revenue,
failure to realize expected savings, other commercial or economic loss
of any kind or any claim against the Client by any other party arising
out of or in connection with the delivery, use, performance or
licensing of the Resources or in connection with any services performed
under this Agreement or any breach of this Agreement, even if the
Client has been advised of the possibility of such damages.
CHOICE OF LAW
28. The laws of the Province of British Columbia shall govern this
Agreement and any disputes arising from this Agreement.
DISPUTE RESOLUTION
29. All disputes arising out of or in connection with this Agreement, or in
respect of any defined legal relationship associated therewith or
derived therefrom, shall be referred to and finally resolved by
arbitration administered by the British Columbia International
Commercial Arbitration Centre ("BCICAC") pursuant to its rules, or if
the Parties otherwise agree, by any other arbitrator and pursuant to
rules as agreed upon.
30. If the Parties agree not to have their dispute arbitrated by the
BCICAC, then any legal action with respect to this Agreement shall be
commenced at a court registry and be heard by a court within the City
of Vancouver.
ENTIRE AGREEMENT
31. This Agreement, including the Schedules attached hereto, comprise the
entire Agreement between QUAD-LINQ and the Client.
EFFECTIVE DATE
32. This Agreement comes into force on the date on which it is signed by
QUAD-LINQ or by the Client, whichever is the later date.
IN WITNESS of the foregoing this Agreement has been signed by the authorized
signatories for QUAD-LINQ and the Client on the dates noted below:
SIGNED by Xxxxxxxxxxx X. Georgelin, ) QUAD-LINQ SYSTEMS INC., by
authorized signatory for QUAD-LINQ ) its authorized signatory:
SYSTEMS INC., on the _____ day of )
____________, 19___ in the presence of: )
Name: _________________________ )
Address: _________________________ )
SIGNED by Xxxxx Xxxxxxx, ) XXXX-XXX.XXX CORPORATION, by
authorized signatory for XXXX-XXX.XXX., ) its authorized signatory:
on the _____ day of )
____________, 19___ in the presence of: )
Name: _________________________ )
Address: _________________________ )
SCHEDULE A
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Schedule of Services
This software development contract consists of the following components needed
to implement a "two-line solution":
1. User Interface
a) Additional option in the Direct Connect plug-in software to
initiate a two-line connection.
b) Changes to the licensing server to enable/disable the use of the
two-line solution.
2. Back-End
a) Installation of initial development server at Quad-Linq's office
at #401-889 W Xxxxxx
b) Server software to handle 11 simultaneous two-line calls between
businesses located in Canada/USA and their clients.
3. Testing
THIS DEVELOPMENT PROJECT, AS OUTLINED IN SCHEDULE A, AND THE FEES AS INDICATED
IN SCHEDULE C COVERS ONLY THE SOFTWARE DEVELOPMENT AND HARDWARE SETUP LABOR
ASSOCIATED WITH THE "TWO-LINE SOLUTION" FOR USE WITH CANADIAN/USA BUSINESSES.
HARDWARE COSTS, PSTN AND ASSOCIATED LINE COSTS AND OTHER COSTS INCURRED DURING
DEVELOPMENT OR USE OF THIS PRODUCT IS NOT COVERED BY THIS CONTRACT.
SCHEDULE B
----------
Review Schedule
MODULE COMPLETION DATE AUTHORIZED REPRESENTATIVE
------ --------------- -------------------------
Installation of development server ________________ ______
Demonstrative sample of back-end software ________________ ______
User Interface: Plug-in ________________ ______
User Interface: Licensing server ________________ ______
Final server-side development ________________ ______
Testing ________________ ______
IF THE PROGRAM DOES NOT SUBSTANTIALLY PERFORM THE FUNCTIONS OR GENERALLY CONFORM
TO THE SPECIFICATIONS IN SCHEDULE A, THE CLIENT MAY WITHIN 90 DAYS AFTER
DELIVERY WRITE QUAD-LINQ TO REPORT A SIGNIFICANT DEFECT. QUAD-LINQ WILL CORRECT
THE DEFECT WITHIN 90 DAYS, OR AS REASONABLE, AFTER RECEIVING YOUR REPORT.
SCHEDULE C
----------
Flat Fee
1. QUAD-LINQ's total fee shall be $54,000 for the services set out in
Schedule A (hereinafter referred to as the "Fee"). The client shall pay
the Fee under the following terms:
a) 1/3 (One-Third) the total Fee (an amount of $18,000), shall
be made payable to QUAD-LINQ at the time this agreement is
executed by the Parties.
b) 1/3 (One-Third) the total Fee (an amount of $18,000), shall be
made payable to QUAD-LINQ one month after this agreement is
executed by the Parties.
c) The remaining amount owning, (an amount of $18,000), shall be
made payable to QUAD-LINQ two months after this agreement is
executed by the Parties
2. QUAD-LINQ may charge interest on accounts remaining outstanding more
than 30 days at a rate of 18% per annum calculated monthly.
THIS DEVELOPMENT PROJECT, AS OUTLINED IN SCHEDULE A, AND THE FEES AS INDICATED
IN SCHEDULE C COVERS ONLY THE SOFTWARE DEVELOPMENT AND HARDWARE SETUP LABOR
ASSOCIATED WITH THE "TWO-LINE SOLUTION" FOR USE WITH CANADIAN/USA BUSINESSES.
HARDWARE COSTS, PSTN AND ASSOCIATED LINE COSTS AND OTHER COSTS INCURRED DURING
DEVELOPMENT OR USE OF THIS PRODUCT IS NOT COVERED BY THIS CONTRACT.
