Software Development & Technical Services Agreement
Between Anonymous Data Corporation and
Dimensia Technologies LLC
THIS AGREEMENT (the Master TSA") is made as of the 11th day of January,
1999 (the Effective Date"), by and between Dimensia Technologies LLC; a
Washington State Limited Liability Company (WIDTH), and Anonymous Data
Corporation, a Nevada Corporation (ADC).
DT and ADC agree as follows:
1. Software Development & Enhancement Projects. This section serves as an
overriding framework to all fixed paced and pre quoted software
development and enhancement projects which DT and ADC may enter into
over the term of this Master TSA. Each project will be agreed to in
writing in the form of a Project Agreement and will refer to this
Master TSA. Detailed project specifications, deliverables and
timelines will be stipulated in the Project Agreement and the projects
will progress as put forth below.
(a) The Project Agreement must refer to software requirements
specifications ("Project Specs) possibly containing visual
layouts, functional, interface and other requirements. The
Project Specs will be used by ADC to gauge its acceptance of the
project, as discussed below.
(b) The Project Agreement must include agreed upon prices,
deliverables and timeline ("Project Timeline").
(c) Any changes to the Project Specs must be agreed to in writing in
the form of Spec Change Request. ADC may be charged for Spec
Change Requests as negotiated on a case by cave basis.
If changes to the Project Spec drastically change the nature or
scope of the project or if agreement on charges for changes to
Project Specs cannot be agreed upon, DT and/or ADC may dissolve
the project. Upon project dissolution, DT will not be obligated
to continue work Award project completion and any amounts owed to
DT for work completed shall still be due.
DT reserves the right to adjust the Project Timeline to reflect
effects of a Spec Change Request.
(d) ADC may not release, distribute or allow non-test related use of
any Project Software until Acceptance of the Project Software.
Accepting a project in writing ("Acceptances) is defined as
acknowledging the fact that the module(s) which embody the
Project Specs ("Project Software") is(are) operating in a manner
which is consistent with such Project Specs and does(do) not
contain any known functional deficiencies.
DT will not be liable for any financial losses or hardships
incurred due to the use of the Project Software prior go ADC's
Acceptance of the Project Software.
(e) Any functional deficiencies discovered before Acceptance will be
remedied by DT at no charge to ADC.
DT will not be held responsible for repairing functional
deficiencies once ADC has completed Acceptance of the Project
Software; however, DT will repair these deficiencies based on
subsequent maintenance agreements between DT and ADC or based on
time charges billed at the hourly consulting & contract rates
outlined in Subsection 2(b).
(f) DT will be relieved of any and all Inability for the development
and/or enhancement projects completed under the Project Agreement
once the respective projects have passed through Acceptance with
ADC.
(g) ADC must progress through the Acceptance phase of a project if
all requirements of the Project Spec are fulfilled.
(h) DT open engages in enhancement projects on its clients' pre-
existing soft care systems. In the course of such enhancements,
DT open discovers pre-existing functional deficiencies in its
clients' software. The time spent remedying pre-existing
functional deficiencies in ADC's pre-existing software will be
billed for at the hourly consulting & contract rates outlined in
Subsection 2(b), except for such pre-existing software developed
for ADC by DT which is covered under a DT/ADC maintenance
agreement.
(i) DT will provide ADC with all files created for implementation of
the project ("Source Code") and any available technical
documentation within 30 days of when final payment for the
project has been received, as outlined in Section 3.
(j) ADC understands that project development will be out-sourced to
DT and that DT's presence on she at ADC's place of business is
purely at the discretion of DT. Any requirement for on site
presence of DT staff may be billed for at the hourly consuming &
contract rates as outlined in Section 2. Alternatively, the on
site requirement may be included in the fixed price quote for Me
project.
2. ConsuIting & Contracting Relationship. Non fixed puce projects
and other piece work required of DT outside of projects which
fall into the framework provided for in Section 1 of this Master
TSA will be handled under the terms of this Section 2.
(a) ADC understands Mat any consulting or contract work may be
executed off of ADC's site and that DT's presence on ADC's
site is to be determined by jointly between DT and ADC in
competing the consulting task.
(b) Hourly rates for DT services will be as follows:
Analysis & Consulting $125
Design $125
Development $100
Operational / Implementation $80
The categorization of any services rendered into the
categories stated above will be made solely by DT.
The scope of consulting work may be outlined in a
sub-contract and assigned a fixed price based upon the rates
outlined above; however, DT's consulting services nay be
called upon by ADC on an as needed basis. ADC will be made
acre when consulting charges will apply to work requested.
(c) Travel accommodations, lodging, ground transport and time
for travel on projects requiring such will be handled on a
case by case basis.
Reduced rates or fixed prices for extended consulting and/or
contract projects may be negotiated on a case by case basis.
(d) ADC understands that its systems are complex and that during
consultation visits and/or support calls DT will use its
expertise to bring about the safest and most expedient
solution to a given situation, but that DT's liability for
financial losses or hardships caused by DT's actions during
those consultation visits and/or support calls will be
limited to Be amounts paid to DT for me consultation visits
and/or support calls in question.
(e) The terms of this Master TSA will remain in effect until a
written termination is signed by both parties. The rates as
stated in Subsection 2(b) will remain in effect until one
year from the Effective Date at which time those rates may
be renegotiated between ADC and DT.
3. Billing and Payment. The billing scheduling stated here shall be
effective over all projects unless other arrangements have been
agreed to in writing by DT and ADC on a project only basis.
50% of the fee for foxed price projects will be invoiced upon
agreement of the Project Specs. The next 30% will be invoiced
upon project submission to ADC. The final 20% will be invoiced
upon ADC's Acceptance of the project. Hourly projects and
consulting charges will be billed when incurred. Invoices must be
paid within 30 days of the invoice date, or finance charges of
1.5% per month will be assessed. These finance charges will be
retroactive to the invoice date.
Payment should be made out to Dimensia Technologies LLC and
should be mailed to DT at the address specified in Subsection
8(a), below, unless other provisions are agreed to between DT and
ADC.
4. Equipment and Supplies. ADC shall, at its own expense, provide
all facilities and equipment required for ADC's use of the
Project Software.
5. Proprietary Rights. DT acknowledges that ADC shall retain full
rights to use, enhance and modify the Project Software in any way
ADC deems fit for its operations. Furthermore, ADC shall have the
right to sell, lease or lend the Project Software, in part or in
whole, in its binary executable or source code format, to any
external entity.
ADC acknowledges that DT shall retain the right to utilize any
part of the source code which comprises the Project Software for
incorporation into DT's software source code libraries and
possible utilization in other DT software development projects
and/or products.
ADC also acknowledges that with ADC's written permission provided
on a case by case basis, DT shall also have the right to sell,
lease or lend the Project Software, in part or in whole, in its
binary executable or source code format, to any external entity
which is not in the medical industry.
6. Excise & Sales Tax. Where sales or excise tax may be applicable.
ADC may be billed for such taxes in addition to charges for
services rendered by DT.
7. Confidentiality, ADC and DT agree that neither party will
disclose, duplicate, copy or use any material information which
has or will come into the possession of each in connection with
this Master TSA for any purpose other than for the performance of
this Master TSA and shall treat as confidential and proprietary
to each other any information which relates to the others party a
research, development, trade secrets and business affairs
provided however, that the obligation to treat such information
which: (a) is or becomes publicly available, (b) Is in the
disclosing party s possession on the Effective Date, provided
that it shall not have been obtained from the other party, (c) is
developed by the disclosing party outside the scope of any
agreement with the other party. (d) is lawfully and in good faith
obtained by the disclosing party from a Bird party who did not
derive it from the other party, or (e) is required to be
disclosed by a court or other governmental authority after
reasonable notice is given to the other party. The parties hereby
acknowledge that the burden of proving the exceptions set forth
in Subsections 7(a) through 7(e), above, rests with the
disclosing party. Any material information as pertained to herein
may be disclosed by ADC to Be extent necessary to retain
alternative services required to complete a project which has not
been completed by DT to a level worthy of Acceptance.
8. General Provisions.
(a) Notices All notices and other communications herein provided
for shall be sent by overnight air courier, service fee
prepaid, or certified or registered mail, postage prepaid,
return receipt requested, to the parties at the addresses
set forth below until such time as either party shall give
the other notice of change of address:
If to DT, addressed to:
Dimensia Technologies LLC
c/o Dimensia, Inc.
0000 Xxxxxxxx Xxxxx, Xxxxx 000
Xxxxxxxx, XX 00000
Attention: Legal
If to ADC, addressed to:
Anonymous Data Corporation
clo Laser Barcode Solutions
0000 Xxxxxxxx Xxxxx, Xxxxx 000
Xxxxxxxx, XX 00000
Attention: Xxx Xxxxxxxx
(b) Governing Law. This Master TSA and its performance shall be
governed by and construed in accordance with the laws of the
State of Washington.
(c) Partial Invalidity. In the event any term or provision of
the Master TSA shall, for any reason, be held to any extent
to be invalid, void, illegal or unenforceable in any respect
by a court of competent jurisdiction, or in the event that
the application of any term or provision of this Master TSA
to any person or circumstance shall, for any reason, be held
to any extent to be invalid, void, illegal or unenforceable
in any respect by a court of competent jurisdiction, such
invalidity, illegality, voidability or unenforceability
shall not affect any other terms or provisions of this
Master TSA, and this boaster TSA shall be construed and
enforced as if such invalid, void, illegal or unenforceable
terms or provisions had never been a part of this Master
TSA.
(d) Assignment. This Master TSA is not assignable by ADC by
operation of law or otherwise, except with DT's prior
written consent in the case of a merger of ADC with another
business entity which assumes ADC's obligations hereunder,
provided that DT may withhold its consent if, in its sole
judgment, the proposed assignee does not have adequate
creditworthiness and/or business integrity. Reciprocally,
this Master TSA is not assignable by DT by operation of law
or otherwise, except with ADC's prior written consent in the
case of a merger of DT with another business entity which
assumes DT's obligations hereunder, provided that ADC may
withhold its consent if, in its sole judgment, the proposed
assignee does not have adequate creditworthiness and/or
business integrity.
(e) Arbitration. The parties shall attempt to settle amicably
all disputes arising out of or in connection with this
Master TSA, including the interpretation or chimed breach of
this Master TSA. The parties agree that any dispute arising
hereunder shall be submitted to binding arbitration In the
State of Washington in accordance with the rules and
procedures of the American Arbitration Association, before a
single arbitrator who shall be reasonably familiar with the
computer software industry. Judgment upon any award made in
such arbitration may be entered and enforced in any court
having Jurisdiction thereof.
(f) Non-use of Names. ADC shall not use the name "Dimensia", nor
adaptation thereof, in any advertising, promotion, or sales
literature without prior written consent obtained from DT.
DT shall not use the name "Laser Bar Code Solutions" and/or
"Anonymous Data Corroboration", nor adaptation thereof, in
any advertising, promotion, or sales literature without
prior written consent obtained from ADC
The only exception to the prior being that ADC or DT may use
the name of the other party in a simple listing of clients
and/or providers.
(g) Force Majeure. Neither party shall be liable for any delays
or failures in its performance of its non-monetary
obligations hereunder, to the extent such delays or failures
are caused by any contingency beyond its reasonable control,
including but not limited to acts of God, war, civil
commotion, strikes, lockouts, fires, accidents, incidents,
floods, restraining orders or decrees of any court. In such
an event, the party unable to perform shall promptly notify
the over party, and the performance of any obligations
affected by the contingency shall be suspended for only as
long as such contingency exists and all other obligations
not affected by such contingency shall remain in Hill force.
This force majeure provision shall not apply to monetary
obligations.
(h) Entire Master TSA. This Master TSA, the Exhibits hereto, and
any Project Specs agreed to in writing by the parties
hereunder shall contain the entire and only agreements of
the parties hereto reopening the matters herein set forth
and shall supersede or incorporate all prior agreements and
understandings between the pares regarding the matters
hereby contemplated. This Master TSA may not be changed or
terminated orally, nor shall any change, termination or
attempted waiver of any of the provisions herein contained
be binding, unless in writing duly executed by the party
against whom the same is sought to be enforced, nor shall
the provisions of this Subsection 8(f) itself be waived
orally.
Nothing contained In this Master TSA, whether expressed or
implied, is intended to confer upon any person other than
the parties hereto and their respective successors and
permitted assigns, any rights or remedies under or by reason
of this Master TSA, nor is anything in this Master TSA
intended to relieve or discharge the liability of any other
entity to any party hereto, nor shall any provision hereof
give any entity any right of subrogation or action against
any party.
(g) Counterparts. This Master TSA may be executed in
counterparts, each of which shall be deemed to be an
original regardless of the date of its execution and
delivery All of the counterparts together shall constitute
one and the same document, binding all of the parties
hereto, notwithstanding all of the parties are not signatory
to the origins or the same counterparts. For all purposes,
including, without limitation, delivery of this Master TSA,
duplicate unexecuted and unacknowledged pages of the
counterparts may be discarded an the remaining pages
assembled as one document. The parties further agree that
facsimile signatures on this Master TSA, any addenda, and/or
other documents related to this Master TSA shall be fully
binding and effective for all purposes. The parses further
agree that they will promptly deliver the originals of the
facsimile signature to the other party by return express
mail.
IN WITNESS WHEREOF, Me parties have caused this Master TSA to be executed
by their respective representatives as of the Effective Date, and each
party acknowledges having received a signed copy of this Master TSA.
Anonymous Data Corporation Dimensia Technologies LLC
/s/ Xxx Xxxxxxxx /s/ Xxxxx Xxxxx
Xxx Xxxxxxxx, Xxxxx Xxxxx
Its President & CEO Managing Director of Dimensia, Inc.
DT's Managing Member
