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Exhibit 10.12
MASTER CONSULTING AGREEMENT
THIS MASTER CONSULTING AGREEMENT (this "Agreement") is made and entered
into this 17th day of August, 2000, by and between ADLABS, INC. (hereinafter
"ADLabs"), a California corporation with offices at 0000 Xxxx Xxxxxx, Xxxxx 000
Xxxxxxx Xxxxx, XX 00000, and SUMMUS, LTD. (hereinafter "Summus"), a Delaware
corporation with offices at 000 Xxxxxxxxxxxx Xxxxxx Xxxx, Xxxxx 000, Xxxxxxx, XX
00000:
WITNESSETH:
WHEREAS, ADLabs desires to engage Summus from time to time pursuant to one
or more Work Statements to perform projects of different kinds, and Summus is
interested in accepting such engagements, subject to the parties' further
agreement on the scope and terms of each such Work Statement; and
WHEREAS, ADLabs and Summus mutually desire to set forth in this Agreement
certain terms applicable to all such engagements;
NOW, THEREFORE, in consideration of the premises and the mutual
obligations of the parties set forth below, ADLabs and Summus, intending to be
legally bound, hereby agree as follows:
Section 1
SUBJECT AND PURPOSE OF THIS AGREEMENT
This Agreement sets forth the terms and conditions applicable to projects
which may be performed by Summus and/or ADLabs pursuant to one or more Work
Statements. Each Work Statement shall be effective only when signed by both
parties. References to this Agreement shall include any Work Statements in
effect from time to time.
Section 2
DEFINITIONS
Capitalized terms used in this Agreement and not elsewhere defined shall
have the meanings ascribed to them in the attached Glossary or in the Technology
License Agreement.
Section 3
WORK STATEMENTS
3.1. SCOPE AND USE. A Work Statement is a project description for a
particular Phase which refers to this Agreement, describes work to be done in
connection with such Phase pursuant to this Agreement, identifies the
Deliverables to be produced there under, and provides a breakdown of
Deliverables into specific
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categories as further specified in Section 3.2(b) hereof. Each Work Statement
shall identify the services, functions, equipment, facilities and other
resources to be provided by each party in order for the tasks specified in such
Work Statement to be performed.
3.1. FORMAT AND TERMS. Except for minor tasks which may be addressed in
summary form, each Work Statements will conform to substantially the following
format:
(a) The Work Statement shall be entitled "Work Statement No. [___] under
Master Consulting Agreement, dated July 31, 2000. The contents of
the Work Statement may be included in the body of the Work
Statement, or in separately signed Attachments, as the parties
consider most practical. The Work Statement shall include a
provision for the dated signatures of authorized representatives of
both parties.
(b) Principal terms of the Work Statement shall include, at a minimum,
for any Phase:
(i) The "Phase Development Services" for such Phase which shall
include a description of the work to be done, specifications
of the expected Deliverable(s), and specification(s) of the
modifications to the Summus Code to be done,
(ii) A breakdown in the form of Exhibit "A" identifying the
classification of each Deliverable in accordance with the
following categories:
ADLabs Improvements
ADLabs Technology
Core Technology
Core Technology Improvement
Any Deliverable that has not been assigned to one of the above
categories prior to commencement of work under any Work Statement
shall be deemed Summus Technology unless otherwise agreed in writing
by the parties.
(iii) Services, equipment and facilities (if any) to be provided by
Summus.
(iv) Services, equipment and facilities (if any) to be provided by
ADLabs.
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(v) Third-party services, equipment, facilities and any Summus
Third Party Technology (if any) required to be obtained, which
will be ADLabs' responsibility unless otherwise indicated.
(vi) Target time schedules and delivery dates.
(vii) Completion criteria, quality testing, and reports.
(viii)Payments to be made.
3.3. TYPES OF WORK. It is expected that the projects that Summus may
undertake pursuant to one (1) or more Work Statements will initially relate to:
(a) Phase I, Digital Image Consultation and Delivery of Base Technology
(i) Deliverables will generally include certain software based on
Summus' Wavelet Image Technology and certain enhancements
specifically related to the ADLabs' anatomical pathology
market segment.
(ii) Deliverables are planned to include, 12 or 14-bit RGB SDK,
registration and stitching of multiple images, and an
application interface to examine the slides at multiple
resolutions including a thumbnails and zoom functions.
(iii) Early deliverables in Phase I are envisioned to be prototypes
of the foregoing to be used to identify and document final
requirements on functions and user interfaces. The Phase I
Work Statement shall specify the consulting fee payments and
the payment schedule for the Phase I Work.
(b) Phase II, Object Recognition and Slide Automation
(i) In this Phase, Summus will provide enhancements to its base
Wavelet Image Technology for purpose of a pattern recognition
from a catalogue of images developed to allow the ADLabs to
incorporate the delivered code into its ADPhase and ADSoft
products, end to end system consisting of object/pattern
recognition and database searching.
(ii) The Phase II Work Statement shall specify the consulting fee
payments and the payment schedule for the Phase II Work.
(c) Phase III, Multiple Spectrum Analysis and Diagnostics
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(i) In Phase III Summus will develop enhancements to its base
Wavelet Technology to assist ADLabs in developing its
ADBioScan product, which is envisioned to be a diagnostic tool
capable of multi-spectrum pattern recognition, imaging
cataloging and management, and multiple category searching.
(ii) Specifics of the Phase III effort will be delineated in the
specific Work Statement.
3.4. ADOPTION OF WORK STATEMENTS; CHANGES. Work Statements, changes to
Work Statements, and amendments to this Agreement shall be effective only if in
a writing accompanied by dated signatures of authorized representatives of both
parties. Replacement pages initialed and dated by authorized representatives of
both parties will be sufficient for that purpose. Unless otherwise indicated, a
change or amendment shall be effective on the date signed by both parties.
Section 4
PERFORMANCE
4.1. REASONABLE EFFORTS. The parties agree to use commercially reasonable
effort to perform the tasks assigned and to complete the Phase Development
Services specified in each applicable Work Statement. All services will be
rendered in a workmanlike manner by personnel having a level of skill
commensurate with their responsibilities.
4.2. TARGET DATES. Scheduled performance dates are estimates only. Both
parties recognize such dates are dependent on development, resource
availability, funding, assistance, and other factors that may cause dates to
shift or interfere with completion. However, each Work Statement shall set forth
a date for completion of the Phase Development Services for a Phase and such
date shall be applicable for purposes of determining satisfaction of the
condition for timely completion of the Phase Development Services for any Phase
as contemplated in the Stock Warrant Agreement.
4.3. THIRD-PARTY RESOURCES. References to Deliverable or the assignment to
Summus of responsibility for particular Phase Development Services shall not be
construed to make Summus responsible for securing any related Intellectual
Property Rights that may be owned or retained by third parties, unless (a) the
applicable Work Statement expressly makes Summus responsible for securing those
Intellectual Property Rights in the manner contemplated by Section 5 below or
(b) Summus has reason to believe at the time the Work Statement is
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executed that third party Intellectual Property Rights will be needed to avoid
infringement in ADLabs conduct of its Business using the Summus Code as modified
in accordance with the Work Statement. A statement or reference in a Work
Statement that Summus is responsible for obtaining third-party resources,
including services, equipment, facilities, or Intellectual Property Rights, is
subject to the availability of those resources. If during the rendering of Phase
Development Services under a Work Statement Summus has reason to believe that
third party Intellectual Property Rights will be needed to avoid infringement in
ADLabs conduct of its Business using the Summus Code as modified in accordance
with the Work Statement, Summus shall promptly notify ADLabs thereof in writing.
Section 5
RESOURCES PROVIDED
A Work Statement may state that Summus or ADLabs is responsible for
obtaining certain resources. Examples of resources that may be provided by
either party for use in work done under this Agreement include:
(a) Services, including development services, engineering services,
training, manufacturing services, or administrative support.
(b) Software (programming and documentation) previously in existence,
where the Intellectual Property Rights are owned by one of the
parties.
(c) Software (programming and documentation) previously in existence,
where the Intellectual Property Rights are owned by third parties
and limited rights to such Software have been obtained by one of the
parties under license.
Note: In order to comply with restrictions imposed by third-party
licensors, either party shall be entitled to limited disclosure to
the other party of such software so that the other party is
authorized only to provide programming assistance or testing in
support of the licensed party, pursuant to designs owned or approved
by the licensed party, under the direct and exclusive supervision
and control of the licensed party, and with respect to interface
programming or other development activity of a similarly narrow
scope. When acting under those terms, the other party obtains no
license or sublicense to the licensed software and, instead, the
other party shall constitute solely an independent contractor acting
for hire with respect to activities of the licensed party under a
Work Statement.
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Note: Where practical for the completion of the applicable work,
programming may be provided in whole or in part only in object code
form.
(d) Equipment.
Unless otherwise agreed, any equipment provided by either party to
the other party is loaned for use in performing the tasks specified
in applicable Work Statements and, upon completion of those tasks,
shall be returned in the same condition as received, fair wear and
tear excepted. Any charges applicable for the loan of such equipment
shall be set forth in the Work Statement.
Section 6
CONTRACT ADMINISTRATION
6.1. PRINCIPAL CONTACTS. The parties will designate and maintain Principal
Contacts for purposes of all work and business between them concerning this
Agreement and all notices required or permitted hereunder. These initially will
be:
For Summus:
Principal Contact: Xxxxxxx Xxxx or President
Business Phone: (000) 000-0000
Business Mailing Address:
000 Xxxxxxxxxxxx Xxxxxx Xxxx, Xxxxx 000
Xxxxxxx, XX 00000
For ADLabs:
Principal Contact: Xxxxxxx X. Xxxxxx or Xxxx X. Xxxxxxxx
Business Phone: (000) 000-0000
Business Mailing Address:
0000 Xxxx Xxxxxx, Xxxxx 000
Xxxxxxx Xxxxx, XX 00000
6.2. AUTHORIZATIONS. The signature or initials of the Principal Contacts
on Work Statements or changes or amendments to Work Statements shall be deemed
the authorized signature of the respective party.
6.3. REPLACEMENT OF PRINCIPAL CONTACT. If either party decides at any time
to replace the person serving as its Principal Contact, it may do so by written
notice to the other party.
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6.4. NOTIFICATION. Any notice under this Agreement shall be deemed given
if sent by courier, facsimile or mail, directed to the principal contact of the
party being notified.
Section 7
COMMUNICATIONS; REPORTS; ACCESS
7.1. PROGRESS CONFERENCES. The parties shall confer no less frequently
than monthly, or at other times specified in the Work Statement, regarding the
progress of the work required under each Work Statement, any anticipated
problems (resolved or unresolved), and any indication of delay in fixed or
tentative schedules.
7.2. ACCESS. Each party shall, from time to time and upon reasonable
notice, give the other party access to its facilities for purposes of design
reviews, discussion concerning the status and conduct of work being performed
under any Work Statements, and verification of compliance with the terms of this
Agreement.
Section 8
COMPENSATION AND PAYMENT
8.1. METHOD OF COMPENSATION. Summus shall be entitled to compensation for
the performance of its obligations as stated in a Work Statement.
8.2. RESPONSIBILITY FOR EXPENSES. Except for the payments to which Summus
may be entitled as stated in a Work Statement, each party will be responsible
for its own expenses incurred in rendering performance, including the cost of
facilities, work space, computers and computer time, development tools and
platforms, utilities management, personnel, supplies, travel, and the like.
8.3. PAYMENT. Unless otherwise stated in a Work Statement, payment for
performance is due when and as performance is rendered. Summus shall issue
invoices to ADLabs for charges when and as they come due. Charges shall be paid
within thirty (30) days after receipt of the applicable invoice and if not then
paid, such past due amounts shall accrue interest at the rate of one and
one-half percent (1.5%) per month (prorated for partial periods). All payments
shall be made in U.S. currency by check or wire transfer as Summus shall direct.
8.4. COMPENSATION UPON TERMINATION. In the event of any termination of any
Work Statement prior to completion, payment shall immediately be due for
performance rendered pursuant to such Work Statement, including expenses
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incurred in connection with discontinuance of the work in a mutually agreed,
orderly fashion.
8.5. SUPPORTING DOCUMENTATION; AUDIT. Reasonable books of account in
support of charges shall be kept and maintained by SUMMUS. All such records
shall be open for review or audit by ADLabs at reasonable times and on
reasonable notice to support consulting fees owed or other payments due. An
audit of such records may be made, no more than twice each year, by an
independent firm of accountants or by such other individuals as may be
designated by ADLabs, at its expense; provided, however, that if such audit
reveals an overpayment of amounts owing to Summus in excess of five percent
(5%), Summus shall bear the cost of the audit.
8.6. CONSULTING SUPPORT. In support of the Phase Development Services,
Summus agrees to provide ADLabs with technical consulting support equal to at
least two (2) full time equivalent persons, including a project/product manager
and developer, for the term of this Agreement. Such consulting support will be
provided to ADLabs at the prevailing rates that Summus charges for such services
under U.S. Government contracts. In addition to such consulting fee, ADLabs
shall reimburse Summus for any out-of-pocket expenses related to such consulting
support (including, without limitation, travel and lodging). To the extent
ADLabs requires additional consulting support beyond the two full time
equivalent persons, such additional support may be provided by Summus at its
customary hourly rate.
Section 9
OWNERSHIP AND INTELLECTUAL PROPERTY RIGHTS
9.1. THIRD-PARTY TECHNOLOGY. Except as otherwise stated herein, in the
Technology License Agreement or in a Work Statement, ADLabs shall approve the
use of any Third Party Technology necessary to enable it to produce and exploit
the Deliverable(s), subject to any royalty obligations as set forth in the
Technology License Agreement.
9.2. FURTHER ASSURANCES. Each party agrees to take such action and
execute, or cause its employees, agents and contractors to execute, such further
instruments as may be necessary to give effect to the provisions of this
Agreement.
9.3. OWNERSHIP OF DELIVERABLES; LICENSE RIGHTS. Ownership of the
intellectual property rights of any Deliverable hereunder, and any license
rights related thereto, shall be governed by the terms of the Technology License
Agreement between Summus and ADLabs, based on the category of each Deliverable
assigned pursuant to Section 3.1(b)(ii) hereof. In the event of any
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conflict regarding ownership rights between this Agreement and the Technology
License Agreement, the Technology License Agreement shall prevail.
Section 10
WARRANTIES; LIMITATIONS
10.1. WARRANTIES; INDEMNIFICATION.
Ownership. Summus represents and warrants that as delivered to
ADLabs, the Deliverable(s) is (are) in substantial conformity with
the specifications applicable to such Deliverable(s).
(a) Exclusive Remedy. ADLabs' exclusive remedy for breach of any of
Summus' warranties hereunder shall be: (1) to request Error
Corrections in accordance with Section 10.3 of this Agreement, or
(2) if such breach materially affects ADLabs' ability to conduct its
Business, to recover the amount paid to Summus with respect to that
portion of the Business effected by such breach. Summus shall have
no liability to ADLabs' customers or Affiliated Entities with regard
to the subject matter of this Agreement. Notwithstanding any other
provision of this Agreement, under no circumstance may Summus'
liability under or arising out of this Agreement exceed the total of
payments received by Summus from ADLabs pursuant to this Agreement.
10.2. LIMITATION OF LIABILITY
(a) Disclaimer. Summus makes no warranty that all errors have been or
can be eliminated from the Deliverable(s), and Summus shall not be
liable or responsible for losses of any kind resulting from the use
of the Deliverable(s) by ADLabs for developmental or productive use
or in its Business, including any liability for personal injury
(including death), property damage, business expense, machine
downtime, or other damages caused ADLabs, ADLabs' customers, or
Affiliated Entities by any attendant or consequent deficiency,
defect, error, or malfunction. EXCEPT AS SPECIFICALLY SET FORTH
ABOVE, SUMMUS DISCLAIMS ANY AND ALL WARRANTIES, WHETHER EXPRESS OR
IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OF FITNESS
FOR ANY PARTICULAR PURPOSE OR MERCHANTABILITY. IN NO EVENT SHALL
SUMMUS BE LIABLE TO ADLABS FOR ANY LOST PROFITS OR OTHER INCIDENTAL
OR CONSEQUENTIAL DAMAGES RELATING TO THE SUBJECT MATTER OF THIS
AGREEMENT EVEN IF SUMMUS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH
DAMAGES IN
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ADVANCE OF THE CONDUCT GIVING RISE TO SUCH LOSSES OR DAMAGES.
10.3. SUPPORT SERVICES. During the term of this Agreement, Summus will
provide reasonable technical support to ADLabs and will promptly affect
reasonable Error Correction in the Summus Code at Summus' expense. ADLabs'
access to technical support shall be via telephone, facsimile, or email during
each business day between the hour of 9:00 a.m. and 5:00 p.m. Eastern Standard
Time. Technical support in excess of a commercially reasonable amount will be
charged at a rate no greater than Summus' then current technical support rate.
Section 11
TERM OF AGREEMENT
11.1 TERM. This Agreement shall be effective upon the date specified at
the beginning of this Agreement, and shall remain in force until terminated as
provided herein; provided, however, this Agreement shall continue to remain in
effect with respect to any Work Statement entered into hereunder until such Work
Statement is itself terminated or performance thereunder is completed.
11.2. TERM AND TERMINATION OF WORK STATEMENT. Unless otherwise stated in
the applicable Work Statement, the term of the Work Statement shall last until
performance thereunder is completed, except that ADLabs may, at its sole option
and for its own convenience, terminate any or all Work Statements in effect
and/or this Agreement upon sixty (60) days' prior written notice. Upon such
termination, the parties shall inform each other of the extent to which
performance has been completed through such date, and collect and deliver all
work in process. In the event of termination, the parties agree to wind up their
work in a commercially reasonable manner and to preserve and deliver items of
value created prior to termination.
11.3. TERMINATION OF THIS AGREEMENT.
(a) Breach. Should either party commit a material breach of any
obligation hereunder, except an obligation to make payments, the
other party, at its option, may terminate this Agreement by sixty
(60) days' prior notice to the other party. Such notice shall state
the default upon which termination is based. Notwithstanding such
notice, termination shall not occur and the defaulting party shall
not be liable for any further remedy if (i) such default is cured,
and notice of such cure is sent to the nonbreaching party within
such sixty day period, or (ii) if such breach is incapable of being
cured within such period and
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the breaching party presents the nonbreaching party with its plan to
cure and is diligently executing such plan.
(b) Special Grounds for Termination. Notwithstanding any other provision
of this Agreement, (i) Summus may terminate this Agreement upon
fifteen days' written notice for nonpayment of fees after the same
shall have become a past due payment, unless such nonpayment is
cured within such fifteen (15) day period, and (ii) this Agreement
shall terminate immediately in the event of any (A) affirmative act
of insolvency by ADLabs, (B) upon the appointment of any receive or
trustee to take possession of the properties of ADLabs or upon the
winding-up, or (C) upon the expiration or termination, for any
reason, of the Technology License Agreement. In the event of any
termination set forth in this Section, all rights of ADLabs that
otherwise would survive expiration or termination shall immediately
terminate, and Summus shall be entitled to pursue all available
remedies under contract, copyright, tort, and other applicable law.
11.4. SURVIVAL. Except as limited by Section 12.3(b) hereof, the
provisions of Sections 8, 9, 10, 11 and 13 shall remain in effect after
termination of this Agreement.
Section 12
MISCELLANEOUS
12.1. FORCE MAJEURE. Either party shall be excused from delays in
performing or from its failure to perform hereunder to the extent that such
delays or failures result from causes beyond the reasonable control of such
party; provided that, in order to be excused from delay or failure to perform,
such party must act diligently to remedy the cause of such delay or failure.
12.2. NO AGENCY. This Agreement and the Work Statements do not create any
relationship between the parties hereto other than as independent contractors.
12.3. SEVERABILITY. If any provision of this Agreement is held to be
invalid, the other provisions will not be affected to the greatest extent
possible consistent with the parties' intent.
12.4. MULTIPLE COUNTERPARTS. This Agreement may be executed in several
counterparts, all of which taken together shall constitute one single Agreement
between the parties.
12.5. SECTION HEADINGS; EXHIBITS. The section and subsection headings used
herein are for reference and convenience only, and shall not enter into the
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interpretation hereof. The exhibits referred to herein and attached hereto, or
to be attached hereto, including all Work Statements issued hereunder from time
to time, are incorporated herein to the same extent as if set forth in full
herein.
12.6. COMPLIANCE WITH LAW.
(a) Each party agrees to comply with all applicable laws, regulations,
and ordinances relating to their performance hereunder.
(b) Neither party will knowingly export or re-export, directly or
indirectly, any technical data (as defined by the U.S. Export
Administration Regulations) produced or provided under this
Agreement, or export or re-export, directly or indirectly, any
direct product of such technical data, including software, to a
destination to which such export or re-export is restricted or
prohibited by U.S. or non-U.S. law, without obtaining prior
authorization from U.S. Department of Commerce and other competent
government authorities to the extent required by those laws.
12.7. NO WAIVER. No delay or omission by either party hereto to exercise
any right or power occurring upon any noncompliance or default by the other
party with respect to any of the terms of this Agreement shall impair any such
right or power or be construed to be a waiver thereof. A waiver by either of the
parties hereto of any of the covenants, conditions, or agreements to be
performed by the other shall not be construed to be a waiver of any succeeding
breach thereof or of any covenant, condition, or agreement herein contained.
Unless stated otherwise, all remedies provided for in this Agreement shall be
cumulative and in addition to and not in lieu of any other remedies available to
either party at law, in equity, or otherwise.
12.8. PREVAILING PARTIES. In case of litigation arising out of or in
connection with this License Agreement, the prevailing Party shall be entitled
to recover its reasonable attorneys' fees, costs and expenses from the other
Party.
12.9. GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the laws of the State of Delaware, without giving effect to
conflicts of laws principles.
12.10. DISPUTE RESOLUTION. If a dispute arises out of or relates to this
License Agreement or the breach thereof (a "Dispute"), and if the Dispute cannot
be settled through negotiation between the parties for a period not to exceed
sixty (60) days, the parties agree first to try in good faith to settle the
Dispute by mediation administered by the American Arbitration Association under
its Commercial
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Mediation Rules before resorting to arbitration, litigation, or some other
dispute resolution procedure.
Notwithstanding anything to the contrary contained in this Section, the parties
hereby preserve, without diminution, certain remedies that any of them may
employ or exercise freely, in connection with or during a Dispute. Each of the
parties shall have the right to proceed in any court of proper jurisdiction to
exercise or prosecute the following remedies, as applicable: (i) obtaining
provisional or ancillary remedies, including injunctive relief, garnishment,
attachment, appointment of a receiver and filing an involuntary bankruptcy
proceeding, and (ii) a judgment obtained by confession of judgment. Preservation
of these remedies does not limit the power of a mediator to grant similar
remedies that may be requested by a party in a Dispute.
12.11. ENTIRE AGREEMENT. This Agreement and the exhibits annexed hereto,
together with the Work Statements issued from time to time hereunder, the
Confidentiality Agreement dated February 16, 2000, and the Technology License
Agreement and the Stock Warrant Agreement each entered into by the parties
concurrently herewith, constitute the entire agreement between the parties with
respect to the subject matter hereof. No change, waiver, or discharge hereof
shall be valid unless it is in writing and is executed by the party against whom
such change, waiver, or discharge is sought to be enforced.
12.12. NO ASSIGNMENT. Unless a party's rights and obligations under the
Technology License Agreement have been properly assigned pursuant to the terms
thereof, neither party may, without the prior written consent of the other
party, assign or transfer this Agreement or any obligation incurred hereunder.
If a party has properly assigned its rights and obligations under the Technology
License Agreement, such party may assign its rights and obligations hereunder to
the same assignee as the Technology License Agreement, provided that such
assignee expressly accepts, in writing, the obligations of the assignor
hereunder as if the assignee were a party to this Agreement.
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IN WITNESS WHEREOF, ADLabs and Summus have caused this Agreement to be
signed and delivered by their duly authorized officers, all as of the date first
hereinabove written.
SUMMUS, LTD., ADLABS, Inc.,
a Delaware corporation a California corporation
By: /s/ Xxxxxxx X. Xxxx By: /s/ Xxxxxxx X. Xxxxxx
____________________________ _____________________________
Xxxxxxx X. Xxxx Xxxxxxx X. Xxxxxx
Vice President, Business President and CEO
Development
By: /s/ W. Xxxxxxxx Xxxxxxxxxx By: /s/ Xxxxx X. Xxx
____________________________ _____________________________
X. Xxxxxxxx Xxxxxxxxxx Xxxxx X. Xxx, Secretary
Chief Executive Officer
