Exhibit 10.11
SYSTEM INTEGRATION AND DEVELOPMENT
MASTER SERVICES AGREEMENT
This SYSTEM INTEGRATION AND DEVELOPMENT MASTER SERVICES
AGREEMENT (this "Master Agreement") is effective as of November 11, 1996, is
made by and between NETVALUE, INC., a Delaware corporation (hereafter
"Customer"), with its principal office located at Xxx Xxxxxxxx Xxxxxxx,
Xxxxxxxx, Xxxxxxxxxxx 00000, and DMR TRECOM, INC., a Delaware corporation
(hereafter "TRECOM"), with its principal office located at 000 Xxxxxxxx
Xxxxxx, Xxxxxx, Xxx Xxxxxx 00000-0000.
WITNESSETH:
WHEREAS, Customer and TRECOM have entered into a System Integration
and Development Agreement dated November 22, 1996 (the "SIDA"); and a first
amendment dated February 14, 1997 (the "First Amendment") to the SIDA
(collectively, the "Existing Agreement"); and
WHEREAS, TRECOM has provided the services called for under the Existing
Agreement; and
WHEREAS, Customer and TRECOM wish to prolong their relationship; and
WHEREAS, capitalized terms used in this Master Agreement are used as
defined in ss. 14 of this Master Agreement.
NOW, THEREFORE, TRECOM and Customer, intending to be legally bound,
hereby agree as follows:
Section 1.
GENERAL
a. Mutual Commitment and Cooperation. Subject to the terms and
conditions of this Master Agreement, TRECOM shall provide services (the
"Development Services") to develop consulting, computer programming, and other
services as necessary to implement the Work. Customer shall cooperate with
TRECOM in every reasonable way and in keeping with the Work Documents and the
Project Schedule to enable TRECOM to provide the Development Services.
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Customer shall also cooperate to accept the System based on the Acceptance
Criteria.
1.1.1 The parties anticipate that the Development
Services will include incidental deliverables or
goods, to be provided to Customer from time to
time, as authorized and specified in one or more
Statements of Work.
1.1.2 Customer and TRECOM will enter into a written
Statement of Work for each Project, and a copy of
each Statement of Work will be attached to this
Master Agreement as an exhibit, but failure to
attach any Statement of Work will not vitiate,
affect, diminish or impair any obligation of
Customer or TRECOM under any such Statement of
Work.
1.1.3 This Master Agreement does not authorize or commit
either Customer or TRECOM to any quantity or dollar
amount of Development Services. TRECOM may not
perform any Development Services without a
Statement of Work authorizing the Development
Services, signed by both Customer and TRECOM.
1.1.4 Customer shall be deemed to have received and
accepted Work Result provided under a Statement of
Work fifteen (15) days after delivery in the case
of Work Result other than a System unless
explicitly rejected by Customer as not
substantially conforming to a Statement of Work; in
cases where Work Result involves delivery of a
System, acceptance will be governed by the terms
and conditions of Section 3 of this Master
Agreement.
1.1.5 From time to time or from one Project to the next,
Customer and TRECOM may vary the terms of this
Master Agreement by means of any Statement of Work,
and in the event of any contradiction between the
terms and conditions of any Statement of Work and
this Master Agreement, the terms and conditions of
such Statement of Work shall prevail.
b. Project Directors. Each of TRECOM and Customer shall name a
project director for each Project. All responsibilities of the parties under
this Master Agreement shall be supervised and coordinated by TRECOM's project
director and by Customer's project director, or by such other person or
persons as the foregoing representatives may designate from time to time. No
change contemplated by ss. 7 hereof with respect to any Project shall be
effective unless evidenced by a writing signed by project directors of both
parties. Customer's project director shall not exercise direct control or
supervision over TRECOM's personnel but shall be available for consultation;
each party hereto shall be responsible for selection, supervision, direction
and control of its own personnel, including selection of such party's project
director.
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Section 2.
THE SYSTEM
a. Operational Environment. Any Statement of Work will provide that
one of the parties will provide the computing environment for the Development
Services for phases of any Project. TRECOM is not responsible for production
or support of any Work Result after acceptance, other than pursuant to ss. 11
of this Master Agreement.
b. System Implementation. Development Services in respect of any
Project will be carried out substantially according to the applicable
Statement of Work and Project Schedule, subject to any Excusable Delay.
Customer shall be responsible for installation of software on Customer's
computer environment, from time to time. TRECOM shall make training and
technical assistance available to Customer in connection with such
installation, at Customer's expense at TRECOM's regular rates. Customer and
TRECOM acknowledge and agree that any change may affect the Project Schedule
and may increase or decrease the price of the Development Services and agree
that an evaluation and revision of the Project Schedule and the Project Fee
will be made and approved each time a change request is made.
Section 3.
SOFTWARE DEVELOPMENT
a. Development Undertaking. TRECOM shall
3.1.1 commit and utilize sufficient resources to complete
any Project in a skilled, workmanlike manner and in
accordance with the Statement of Work therefor;
3.1.2 employ competent and skilled personnel having a
level of skill and experience in the area
commensurate with the requirements of the Work to
be performed;
3.1.3 use commercially reasonable, diligent efforts to
start, perform and complete all Development
Services in a timely manner and substantially in
accordance with each aspect of the Work Documents
and the Project Schedule;
3.1.4 notify Customer of any circumstances, when and as
they arise, that may reasonably be anticipated to
lead to a material deviation from the Project
Schedule for any Project; and
3.1.5 incorporate into the final version of any System
such modifications as normal and customary software
tests indicate are necessary.
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b. Customer Access. Customer may inspect TRECOM's performance, and
TRECOM will facilitate inspection, upon reasonable notice and at reasonable
times. TRECOM's inspection (or lack of inspection) will not be an acceptance
of any Work Result or a waiver of any right or warranty or preclude Customer
from rejecting defective Work Result. Without limiting the generality of the
foregoing, Customer shall, upon reasonable advance notice to TRECOM, have
access during normal business hours to the premises where Development Services
are performed for the purposes of design review, "Walk Throughs," and
discussions between Customer's and TRECOM's management and personnel
concerning the status and conduct of the Work being performed and to monitor
the progress of Work.
c. Subcontractors. TRECOM may retain third parties to furnish
services in connection with any Project, provided that such third parties have
executed appropriate Confidentiality and/or Non-Disclosure Agreements with
Customer and with TRECOM. No such retention shall relieve TRECOM from any of
its obligations under this Master Agreement, including its obligation to
perform Development Services substantially in accordance with the Project
Schedule. Nothing in this Master Agreement shall be deemed to prevent or limit
TRECOM's use of commercially available software tools. TRECOM's use, if any,
of any subcontractor for any programming services shall not be the reason of
any Excusable Delay, but an Excusable Delay that affects such subcontractor
shall be deemed an Excusable Delay of TRECOM.
d. Delivery/Acceptance. Immediately upon the completion of the
Development Services to be performed at TRECOM's facilities in respect of any
Project, TRECOM shall deliver to Customer and Customer shall install any
System or software, and TRECOM shall simultaneously deliver therewith all
documentation and other materials required to be provided at such time. TRECOM
shall notify Customer in writing of the availability of the software or System
for testing by Customer. The date of such notice referred to in this Master
Agreement as the "Acceptance Test Date" for any Project. On or before the
second business day after any Acceptance Test Date for any Project, Customer
shall begin a ten (10) business day (unless the parties mutually agree in
writing upon a length of days that is different) Customer Acceptance Test
phase during which time Customer will have the opportunity to exercise the
software or System to determine whether the software or System meets the
functional requirements and satisfies the Acceptance Criteria.
e. Certain Conditions. On or prior to the Start Date,
3.5.1 Each of TRECOM and Customer shall have executed and
delivered a Statement of Work with respect to the
Project in question; and
3.5.2 Customer shall have delivered to TRECOM the initial
payment of the Project Fee for such Project, in
accordance with the terms and conditions of the
applicable Statement of Work, which shall be in
full force and effect on the Start Date; and
3.5.3 Customer shall have satisfied any other conditions
that may be required in
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advance of the Start Date in respect of any Project.
Section 4.
SYSTEM COMPLETION AND ACCEPTANCE
a. Acceptance Criteria. Customer is responsible for the development
of the Acceptance Criteria Project by Project. TRECOM will consult with,
support and review Customer's Acceptance Criteria to ensure Customer's ability
to adequately assess and accept Work Result. The Acceptance Criteria must be
submitted to TRECOM's project director for review at least thirty (30) days
(unless the parties mutually agree in writing otherwise) prior to the
anticipated delivery date of any software or System. The test or tests for
such assessment and acceptance in respect of any Project are referred to in
this Master Agreement as the "Acceptance Test."
In the event that Customer shall have developed Acceptance
Criteria or any Acceptance Test in respect of any Project that does not
conform to that Project's Work Documents, Customer's project director and
TRECOM's project director shall negotiate in good faith to complete the
Acceptance Criteria or the Acceptance Test to so conform. If they shall prove
unable to agree, then they shall select a mediator familiar with the industry
to assist them in preparing Acceptance Criteria and Acceptance Tests that
conform to the Work Documents for such Project. Customer and TRECOM shall bear
the costs of such mediation equally.
During any Acceptance Test period, Customer shall notify
TRECOM in writing, or by other mutually agreeable means, of items not
conforming to the Acceptance Test plan. Upon completion of the 10-day period,
testing shall cease and TRECOM will make outstanding corrections to such Work
Result such that it conforms with the Acceptance Criteria for the Project.
Once the corrections are complete and the software or System passes the
Acceptance Test, the creation, installation and implementation of the Work
Result shall be considered complete and accepted by Customer.
The following describes the period, process and procedures
of the quality assurance testing phase of the Development Services for any
Project:
4.1.1 Acceptance Testing - During the Acceptance Testing,
Customer will test the application and submit items
for corrections to TRECOM as they are discovered.
TRECOM will periodically produce updated releases
of the application that address such identified
items. This process shall iterate for a period of
ten (10) business days.
4.1.2 Final Corrections - After the Acceptance Testing
period has been completed, Customer shall compile a
final list of outstanding items. At that time,
TRECOM will estimate the time required to implement
a final testing release,
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which will be the date this release will be
available for final testing. For scheduling
purposes, the date of availability of the final
testing release will be no less than two (2)
business days from the time TRECOM provides
Customer with such date.
4.1.3 Final Testing Release - TRECOM will then use all
commercially reasonable efforts to make the
necessary corrections to produce the Final Testing
release as soon as reasonably practicable. Unless
agreed by TRECOM project management, no additional
Acceptance Testing may be conducted by Customer
during TRECOM's development of the Final Testing
release.
4.1.4 Final Testing - Having received two (2) business
days advanced notice of availability of the final
testing release, Customer will immediately begin
testing the final testing release to ensure all
items from the final corrections list were properly
addressed. If final corrections are still
outstanding, steps 2 through 4 will be repeated
except for the two (2) business day notice.
b. Completion and Acceptance. At such time as the Acceptance Test
demonstrates that the software or System functions substantially in accordance
with each aspect of the Project's Work Documents, Customer shall be considered
to have accepted the fully implemented and complete Work Result. Customer
shall promptly sign and deliver to TRECOM an Acceptance Certificate evidencing
acceptance. If after repeated attempts, TRECOM is unable to remedy each item
on the final corrections list, then Customer's exclusive remedy and TRECOM's
entire liability in contract, tort, or otherwise shall be as set out in xx.xx.
11 and 12 of this Master Agreement.
Section 5.
WORK DOCUMENTS AND PROJECT SCHEDULE
a. Work Documents and Project Schedule. The Work Documents and
Project Schedule for a particular Project will set forth the projected work
effort and schedule for creation, installation, and implementation of the Work
Results. All statements and warranties concerning time are merely good faith
estimates based upon factors existing at the time they were made, and are
subject to equitable adjustment, such as, by way of example only, if Customer
or others fail adequately to perform the tasks required of them to be
performed or if Customer changes the scope, timing or level of work to be
performed by TRECOM. Customer agrees to provide working space and facilities,
and any other services, materials and tools that TRECOM or its personnel may
reasonably request in order to perform the work assigned to them.
b. Excusable Delays. 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, including delays in the Project Schedule caused by
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unavailability, or delays in preparation or shipment, of third-party hardware
or software; provided that, in order to be excused from delay or failure to
perform, the party responsible for the matter causing the delay shall act
diligently to remedy the cause of such delay or failure and shall promptly
notify the other party of such delay, the causes thereof and the anticipated
length of any such delay. Customer acknowledges that delays by Customer in
completing tasks required of Customer or performing Customer's obligations
under this Master Agreement may impede or delay completion of the Development
Services.
c. Adjustments. TRECOM and Customer shall meet at periodic intervals
to adjust the Work Documents and Project Schedule in respect of any Project to
take account of permitted or Excusable Delays in the Work Documents and
Project Schedule that relate to such Project.
Section 6.
PAYMENT
a. Prices, Charges, and Reimbursable Items. Subject to compliance by
TRECOM with the terms and conditions of this Master Agreement and the Work
Documents in respect of any Project, Customer shall pay to TRECOM the Project
Fee in accordance with the Payment Schedule. Customer acknowledges that each
portion of the Project Fee is due on the due date set forth in the Work
Documents in respect of any particular Project.
Customer and TRECOM have agreed that Customer may pay any
amount due to TRECOM by delivery to TRECOM of a Letter of Credit at least 10
days prior to the date on which a payment is due.
Any Letter of Credit shall name TRECOM as beneficiary and
shall be a form reasonably satisfactory to TRECOM and shall be issued by a
bank reasonably satisfactory to TRECOM. Any Letter of Credit shall be an
absolute and unconditional obligation for an amount not less than the amount
due and payable. Any Letter of Credit shall permit TRECOM to draw such amount
immediately by presentation of a certificate of a responsible officer of
TRECOM to the effect that the amount drawn is then due and payable. TRECOM
shall deliver to Customer notice of any draw under any Letter of Credit, but
failure to deliver any such notice shall not limit or diminish in any way
TRECOM's right to any such draw.
TRECOM shall have no obligation to perform or continue any
Development Services when any amount required to be paid on the Payment
Schedule remains due and unpaid; Customer acknowledges that TRECOM has advised
Customer that TRECOM intends to accomplish none of the Development Services
that would otherwise be accomplished in any month if Customer has not paid all
amounts then due on the first day of such month or if Customer has failed to
deliver a Letter of Credit in a manner that permits a draw by TRECOM, as
beneficiary, of such amounts on or prior to the first day of any month. Any
such discontinuity in the delivery services shall extend the due
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dates of deliverables, as shown on the Project Schedule, by the period during
which work was stopped due to lack of payment.
Reimbursable items are stated in the Payment Schedule;
Customer shall be responsible for out-of-pocket travel and entertainment
expense incurred in connection with travel in connection with the Development
Services previously approved by Customer.
b. Invoices; Payments. TRECOM shall have no obligation to invoice
Customer for any regularly scheduled Project Fee payment. Customer shall pay
each regularly scheduled Project Fee payment promptly when due. TRECOM shall
invoice Customer for other prices, charges and reimbursable items payable to
TRECOM as they come due upon satisfaction of the conditions to payment.
Customer shall pay the invoiced amount in full within thirty (30) days of
receipt of invoice. Customer shall pay interest at the rate of 1.5% per month
on the amount shown on any invoice that is paid later than 30 days after such
date of receipt and on any regularly scheduled Project Fee payment that is
paid later than 30 days after the due date thereof.
c. Taxes. Unless tax exempt, Customer agrees to pay amounts equal to
any taxes resulting from this Master Agreement or any Work Documents, or any
components or services provided by TRECOM to Customer pursuant to this Master
Agreement or any Work Documents, exclusive of taxes based on TRECOM's net
income.
d. No Other Payment. Except as expressly provided in this Master
Agreement or any Appendix or attachment to this Master Agreement, TRECOM and
Customer shall each bear all of its own expenses arising from the performance
of its obligations under this Master Agreement or any Work Documents,
including personnel, facilities, utilities, equipment, supplies, clerical, and
the like. Customer shall be responsible for all charges and expenses incurred
in connection with any Letter of Credit.
Section 7.
CHANGES
a. Review of Proposed Changes. It is mutually acknowledged that
changes in the functional scope of any software deliverable, Work Documents,
Project Schedule or Acceptance Criteria may affect the Project Fee, pricing
and payment structure or schedule for the Development Services. Such changes
may be deemed desirable in light of actual experience gained in the course of
creation, installation and integration of any System, or as Customer redefines
its needs. Accordingly, either party shall be entitled to propose changes to
such terms by written notice at any time delivered to the other party. The
parties agree to consider such a proposed change in good faith and to make a
good faith effort to accept equitable adjustments where appropriate to
accomplish the mutual objectives of the parties. All response to proposed
changes shall be made promptly but not later than five (5) business days of
receipt of such proposed change. If such a proposed change is
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accepted, it shall be reduced to a written amendment to Work Documents signed
by both parties. Any such amendment shall be deemed "Work Documents" and shall
be attached to this Master Agreement in the same manner as any other Work
Documents. Customer acknowledges that changes may delay completion of the
Development Services and the amount payable therefor. Any such amendment may
change the Development Services by additional or revised drawings,
specifications, exhibits or written change of the Work Documents. TRECOM and
Customer shall continue performance under the original Work Documents pending
mutual agreement regarding any requested change.
b. Termination by Customer if Necessary Change Declined. If Customer
proposes a change upon which the parties cannot reach agreement, and Customer
in good faith believes its change is feasible and necessary for the System to
meet its operational objectives, Customer may (in its discretion) terminate
any particular Project, provided that it compensates TRECOM in an equitable
manner for all services rendered and items ordered, procured or delivered,
through the date of such termination. In no event, however, shall Customer be
required to pay TRECOM more than the amounts that have become due and payable
through the date of termination pursuant to ss. 6 hereof plus the amounts that
would otherwise have become due and payable through the first day of the next
month, as well as any third-party termination, cancellation and pass-through
charges incurred by TRECOM in connection with such Project. TRECOM shall
deliver to Customer any third-party contract that provides for any such
third-party termination, cancellation and pass-through charges at such time as
TRECOM shall have determined that the Development Services involve such
third-party contract. In the event of any such termination of a Project,
TRECOM shall cooperate with Customer and shall deliver or assign to Customer
the results of the Development Services for such Project, including all paper
and electronic documentation for both the source code and the design elements
of the Development Services, through the date of such termination. Customer
shall compensate TRECOM on a time-and-materials basis, at TRECOM's regular
rates, in respect of such cooperation and delivery. Except to the extent of
any assignment to Customer of any third-party product, at the time of any such
termination, TRECOM shall terminate any third-party agreement that may then be
in effect with respect to the Development Services for such Project.
c. No Termination if TRECOM's Change Declined. If TRECOM proposes a
change in respect of any Project upon which the parties cannot reach
agreement, TRECOM shall nonetheless continue to render performance under this
Master Agreement in accordance with its (unchanged) terms and conditions
unless such continuation is not practicable due to reasons beyond the control
of TRECOM, such as the failure of a third-party software or hardware component
to operate as specified by written specifications of the third-party. In such
an event, Customer and TRECOM shall work together in good faith to agree on
changes as defined in ss. 7.1 that will lead to a successful conclusion of the
Project.
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Section 8.
CERTAIN OBLIGATIONS OF CUSTOMER
a. System Environment. Unless the Work Documents in respect of a
Project otherwise require, Customer will provide space for installation and
will provide designated equipment, utilities (including heat, light, power,
telecommunications, air conditioning and the like) for operation of the Work
Results of any Project.
b. Operational Environment. Unless the Work Documents in respect of a
Project otherwise require, Customer shall
8.2.1 provide the software listed in the Work Documents;
8.2.2 install and maintain the software on PC
workstations available to TRECOM staff during
quality assurance testing phases of the Development
Services; and
8.2.3 during quality assurance testing phases of the
Development Services, assist TRECOM in a timely
manner to fix any hardware or software problems
that would affect the performance of Development
Services related to such Project by TRECOM staff.
c. Access and Facilities. In addition, unless the Work Documents in
respect of a Project otherwise require, during quality assurance testing
phases of the Development Services, Customer shall provide, without charge,
reasonable office space and equipment, telecommunications service, utilities
and programming facilities for use by TRECOM's personnel in rendering the
Development Services, as needed.
d. Customer Staff Commitment. Customer shall ensure that all internal
staff members who may be necessary or appropriate for the successful
development, testing and implementation of any Project will, on reasonable
notice,
8.4.1 be available to assist TRECOM staff for answering
operational questions, providing written documents
and existing guidelines and procedures;
8.4.2 participate in progress and development meetings;
8.4.3 contribute to template, software and system testing;
and
8.4.4 be available to help with any other tasks required
to complete the Development Services relating to
any Project according to the Work Documents and
Project Schedule.
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e. Certain Customer Warranties and Representations. To induce TRECOM
to enter into this Master Agreement and perform the Development Services
provided for in this Master Agreement, Customer warrants and represents to
TRECOM, as of the date hereof and as of each Start Date, as follows:
8.5.1 Customer is a corporation organized, validly
existing and in good standing under the laws of the
State of Delaware, has the power and authority to
own, operate and lease its properties and to carry
on its business as now conducted and is qualified
to do business in each Jurisdiction in which the
nature of its business requires qualification.
8.5.2 Customer has the right, power and authority to
enter into and perform its obligations under this
Master Agreement and all Work Documents. Customer's
execution, delivery and performance of this Master
Agreement has been, and of all Work Documents will
be, duly and validly authorized by all necessary
action on Customer's part.
8.5.3 Xxxx Xxxxx is Customer's project sponsor and
project director initially and is duly authorized,
acting singly, to execute and deliver this Master
Agreement and the initial Work Documents on behalf
of Customer.
8.5.4 This Master Agreement and all Work Documents, as
executed and delivered from time to time, have been
duly executed and delivered by Customer, and each
is a valid and binding obligation of Customer,
enforceable against Customer in accordance with its
terms.
8.5.5 On each delivery date of any Letter of Credit, the
Letter of Credit then delivered will have been duly
executed and delivered by the issuing bank and will
be a valid and binding obligation of the issuing
bank enforceable by TRECOM in accordance with its
terms without any further action by Customer.
8.5.6 This Agreement is made subject to any laws,
regulations, orders or other restrictions on the
export from the United States and re-export from
foreign countries of software or technical data as
may be imposed from time to time by the United
States government, including the Export
Administration Act and regulations (collectively,
the "Export Laws") and Customer will comply with
all Export Laws in the distribution of the
Custom-Developed Software. Nothing in this Master
Agreement shall be deemed to permit Customer to
export any property from the United States of
America in violation of the Export Laws. Customer
has consulted with its own counsel and has not
relied on any representation or warranty of TRECOM
in connection with export control laws or any
other matter, except as set forth in this Master
Agreement.
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Compliance with Export Laws in connection with
Custom-Developed Software will not diminish its
usefulness to Customer. Customer shall indemnify,
defend and hold harmless the other from and against
any claim, loss, liability, expense or damage
(including fines and legal fees) incurred as a
result of Customer's breach of its obligations to
comply with Export Laws.
f. Certain TRECOM Warranties and Representations. To induce Customer
to enter into this Master Agreement, TRECOM warrants and represents to
Customer as of the date hereof, as follows:
8.6.1 TRECOM is a corporation organized, validly existing
and in good standing under the laws of the State of
Delaware, has the power and authority to own,
operate and lease its properties and to carry on
its business as now conducted and is qualified to
do business in each jurisdiction in which the
nature of its business requires qualification.
8.6.2 TRECOM has the right, power and authority to enter
into and perform its obligations under this Master
Agreement. TRECOM's execution, delivery and
performance of this Master Agreement has been duly
and validly authorized by all necessary action on
TRECOM's part.
8.6.3 Xxxxx Xxxxxxx is TRECOM's initial project director
and is duly authorized, acting singly, to execute
and deliver this Master Agreement on behalf of
TRECOM.
8.6.4 This Master Agreement has been duly executed and
delivered by TRECOM and is the valid and binding
obligation of TRECOM, enforceable against TRECOM in
accordance with its terms.
8.6.5 As of the date hereof, TRECOM believes it has the
ability to perform the Development Services in
accordance with the Work Documents.
8.6.6 TRECOM has put into escrow with a third-party
software escrow service a copy of TRECOMware, as it
existed prior to commencement of the initial
Development Services.
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Section 9.
OWNERSHIP AND RIGHTS
a. Customer's Ownership of Work. Upon payment in full of all of
Customer's obligations to TRECOM in respect of any Project, TRECOM will be
deemed to have conveyed to Customer all of TRECOM's right, title and interest
in and to the Custom-Developed Software for such Project, in whole and in
part, and all copies thereof, and all of TRECOM's worldwide proprietary rights
in the Custom-Developed Software, including all patents, copyrights, trade
secrets and other intellectual property rights therein, if any.
Custom-Developed Software shall be deemed "work for hire." Custom-Developed
Software may be transferred or licensed by TRECOM to a third party only with
Customer's prior written consent and upon payment by TRECOM to Customer of an
amount, and upon such other terms and conditions, as TRECOM and Customer may
mutually agree. Nothing shall prohibit TRECOM from utilizing any of the TRECOM
Proprietary Information embodied in such original works of authorship or from
developing new computer software code having similar features and/or
functionality to such original works of authorship. At TRECOM's request,
Customer shall negotiate in good faith to agree upon mutually agreed terms and
conditions for any such transfer or license of Custom-Developed Software,
provided, however, that the parties are not obligated to reach any agreement
with respect thereto.
From time to time, TRECOM shall
9.1.1 execute assignments or other documents necessary to
vest in Customer TRECOM's entire right, title and
interest in and to any Custom-Developed Software;
9.1.2 execute any and all applications for patents and
registrations for copyright as Customer may request
with respect to any Custom-Developed Software; and
9.1.3 assist Customer, at Customer's expense, in
obtaining full patent and copyright protection for
such Custom-Developed Software in those countries
designated by Customer.
TRECOM's obligations under this paragraph shall survive termination of this
Master Agreement.
b. Licenses to Use. Subject to the terms, conditions and limitations
contained in this Master Agreement, TRECOM hereby grants to Customer a
nonexclusive, paid-up and perpetual license to use, modify (including to
prepare derivative works) and copy (collectively, "Use") for its own internal
Use so much of the TRECOM Proprietary Information as may be comprised within
any Work Result. Customer hereby disclaims any ownership interest in or to the
TRECOM Proprietary Information or any portion thereof. Customer acknowledges
that the Custom-Developed Software does not include any ownership interest in
any third-party software; Customer acknowledges that Work Result is expected
to comprise licensed rights for Customer's use of certain third-party
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software.
Except as permitted in the next sentence, Customer shall not
transfer or sublicense any copy of any of the TRECOM Proprietary Information.
Without any further action by TRECOM, at any time after Customer shall have
paid to TRECOM the entire amount of the Project Fee, Customer, its successors
and assigns shall be permitted to transfer the License hereby granted with
respect to any of the TRECOM Proprietary Information or a portion thereof as
part of a transaction in which Customer or any such successor or assign
transfers all of its right, title and interest in and to the Custom-Developed
Software and the Work Result that comprises any TRECOM Proprietary
Information.
Nothing in this ss. 9.2 shall be deemed or construed to
permit TRECOM to Use or license the Custom-Developed Software, except in
accordance with the terms and provisions of this ss. 9: Customer acknowledges
that, in the course of developing the Custom-Developed Software, TRECOM may
have utilized ideas, concepts, models, know-how, methodologies and techniques
previously used for other software development projects, and nothing in this
Master Agreement shall be deemed to limit TRECOM's Use of such ideas,
concepts, models, know-how, methodologies and techniques of TRECOM generally
contained in or otherwise related to the Custom-Developed Software for any
purpose without restriction or obligation.
Customer shall not grant to any other person any sublicense
to Use any element of the TRECOM Proprietary Information for any purpose.
Customer acknowledges that the System may include elements
of software provided by a third party, and Customer shall be responsible for
any licensing fees payable in respect of such third-party software; TRECOM
will cooperate with Customer to cause any such third party to license Customer
to Use such third-party software upon Customer's payment therefor.
c. TRECOM's Ownership of TRECOM Proprietary Information. To the full
extent of TRECOM's ownership thereof immediately prior to the date of the
SIDA, TRECOM has and will at all times retain sole and exclusive title to and
ownership of the TRECOM Proprietary Information, in whole and in part, and all
copies thereof, and all worldwide proprietary rights therein, including all
patents, copyrights, trade secrets and other intellectual property rights
therein. Nothing in this Master Agreement or otherwise shall be construed as
granting or shall grant to Customer any right, title or interest in the TRECOM
Proprietary Information or any of such proprietary rights, other than the
license granted pursuant to this Master Agreement. No license, right or in any
trademark of TRECOM, trade name or service xxxx of TRECOM is granted
hereunder.
d. Certain Confidentiality Obligations. Customer acknowledges that the
TRECOM Proprietary Information constitutes valuable confidential and proprietary
information of TRECOM. Customer and its affiliates shall
9.4.1 hold all TRECOM Proprietary Information in confidence
and neither disclose
14
nor release TRECOM's Proprietary Information to any
other person or entity;
9.4.2 not use TRECOM Proprietary Information for any
purpose whatsoever, except as expressly permitted
under this Master Agreement;
9.4.3 disclose TRECOM's Proprietary Information to only
those of its employees having a need to know such
information; and
9.4.4 take all reasonable precautions to ensure that its
employees comply with the provisions of this ss.
9.4.
The period of nondisclosure shall be 10 years and shall
commence upon the date of disclosure of TRECOM Proprietary Information to
Customer. Nothing contained in this ss. 9.4 shall prohibit either party from
assigning any of their respective personnel utilized for any Project to
similar projects, subject, however, to the other provisions of this ss. 9.4.
The standard of care required to be observed under this ss. 9.4 shall be not
less than tile degree of care that each party uses to protect its own
information of a confidential nature. The provisions of this ss. 9.4 shall
survive the termination of this Statement of Work.
e. Indemnity for Infringement by TRECOM. Subject to the limitations
set forth in ss. 11 and ss. 12, TRECOM shall, at Its expense, defend,
indemnify, and hold harmless Customer from and against any claim, liability or
damage based on the alleged or actual infringement of any U.S. patent or
copyright or violation of trade secrets related to all Custom-Developed
Software. Nothing in this ss. 9.5 shall be deemed to require TRECOM to pay any
royalty or license fee to any third-party software developer whose software
TRECOM has included in the software delivered to Customer under a license from
such third-party software developer. This obligation shall be contingent on:
9.5.1 Prompt notice by Customer to TRECOM in writing of
such claim when it becomes evident to Customer; any
delay in delivery of any such notice shall not
diminish TRECOM's obligations under this ss. 9.5
unless such delay shall have materially impaired
TRECOM's ability to defend any such claim;
9.5.2 Cooperation by Customer with TRECOM in the defense
thereof, at Customer's expense; and
9.5.3 Customer's obtaining TRECOM's prior written
approval of any settlement by Customer of such
matters (which approval shall not be unreasonably
withheld).
TRECOM shall have no indemnity obligation for claims or infringement or
violation resulting or alleged to result from (a) any combination, operation,
or use of any of such items with any other components or any other equipment
or programming, insofar as the manufacturer's specifications do not directly
provide for such combination, operation, or use; or if same has been modified
or
15
altered without TRECOM's approval; or (b) the preparation, operation, or use
of any other components or any other equipment or programming-, or (c) use of
an allegedly infringing or violative version thereof, if such alleged
infringement or violation could be avoided by use of a different version and
if TRECOM incorporates such non-infringing version into any Work Result
promptly after notice of such alleged infringement.
f. Custom Computer Code. In addition, as to the items classified as
Custom-Developed Software, TRECOM shall have no indemnity obligation for
claims of infringement or violation resulting or alleged to result from
compliance with the Work Documents where TRECOM's method of compliance has
been compelled by the terms of such Work Documents, but only to the extent
there was no alternative method of compliance available to TRECOM that would
avoid the basis for such claims and TRECOM has notified Customer in writing of
such lack of alternatives within a reasonable time after TRECOM shall have
become aware of such lack of alternatives. In the event of an infringement or
misappropriation claim under ss. 9.5 of the Agreement, or threat thereof,
TRECOM may, at its sole cost and expense:
9.6.1 modify, at no additional charge, the work or
services so that they become non-infringing and
non-violative, without diminishing the usefulness
of the Work Result to Customer;
9.6.2 replace the Work Result with material that is
non-infringing and non-violative, and that does not
contain any misappropriated ideas or rights and is
at least as useful to Customer;
9.6.3 obtain for Customer the right to use such Work
Result upon commercially reasonable terms; or
9.6.4 if none of tile foregoing alternatives is possible,
despite TRECOM's reasonable commercial efforts:
remove the infringing or violative Work Result and
grant to Customer credit for them, as depreciated
on a five (5) year straight-line basis.
This ss. 9 sets out TRECOM's entire liability and obligation with respect to
patent or copyright infringement claims or trade secret misappropriation.
g. Project Materials. TRECOM's project director shall collect and
keep the original versions of the Project Materials in respect of each
Project. Except as otherwise provided in this Master Agreement or in Work
Documents from time to time, the Project Materials shall become the property
of Customer upon completion and acceptance of the Work Result for such
Project, provided that TRECOM may keep and, to the extent otherwise not
prohibited by this Master Agreement, Use a copy of the Project Materials.
h. Limits on Confidentiality. No restriction in this ss. 9 against
Customer's disclosure
16
of TRECOM Proprietary Information shall apply to information that
9.8.1 Customer acquired before receiving such information
from TRECOM and without restriction as to
confidentiality;
9.8.2 is in or has entered the public domain through no
breach of any agreement by Customer or other
wrongful act by Customer;
9.8.3 has been received by Customer from a third party
without restriction on disclosure and without
breach of the this Master Agreement or any other
agreement between Customer and TRECOM or other
wrongful act by Customer, or
9.8.4 consists of information jointly developed between
Customer and TRECOM, and as may be implemented, but
only to the extent jointly developed.
Section 10.
FREEDOM OF ACTION; CONFIDENTIALITY
a. Dealing With Others. TRECOM is engaged in the business of
providing systems analysis, integration services, contract programming and
other computer-related services to a variety of clients, and nothing in this
Master Agreement shall prevent TRECOM from using its and its personnel's
general skills in pursuing such business with any other client on any other
terms, whether or not similar or identical to those provided under this Master
Agreement or any Work Documents. TRECOM shall be free to use and disclose in
such business pursuits any data-processing or information-processing
techniques, concepts, or ideas embodied in any Work Result or otherwise
developed or learned by TRECOM in the course of rendering Development
Services.
b. Confidentiality of Customer's Business Information. TRECOM and
Customer have executed a separate bilateral Non-Disclosure Agreement before
the signing of this Master Agreement.
c. Segregation and Return of Customer Materials. TRECOM shall
segregate all materials furnished to it from time to time by Customer that
contain any confidential or proprietary information or data of Customer which
is so marked with an appropriate legend. All such materials shall be returned
to Customer upon completion and acceptance of the Project to which such
materials relate, or, if earlier, upon termination of this Master Agreement.
17
Section 11.
LIMITED WARRANTY
a. Development Services. TRECOM warrants that it will render the
Development Services as set forth in ss. 3.1 of this Master Agreement. TRECOM
does not warrant or represent that the Work Result, or any part thereof, will
operate uninterrupted or error free.
b. COMPLETION OF IMPLEMENTATION. TRECOM FURTHER WARRANTS THAT ANY
SYSTEM, WHEN COMPLETED FOLLOWING THE PROCUREMENT AND INSTALLATION OF ALL
COMPONENTS, WILL SATISFY THE ACCEPTANCE CRITERIA IN ALL MATERIAL RESPECTS.
TRECOM DOES NOT WARRANT THAT ANY WORK RESULT WILL OPERATE UNINTERRUPTED OR
ERROR-FREE. AS CUSTOMER'S SOLE AND EXCLUSIVE REMEDY FOR ANY MATERIAL FAILURE
OF ANY WORK RESULT TO SATISFY THE ACCEPTANCE CRITERIA, TRECOM, ITS SOLE COST
AND EXPENSE, SHALL USE ALL ITS REASONABLE EFFORTS TO CURE OR CORRECT SUCH
FAILURE THROUGH FURTHER PROGRAMMING SERVICES AS SOON AS REASONABLY
PRACTICABLE. IF, AFTER A REASONABLE PERIOD OF TIME, TRECOM DETERMINES THAT ANY
WORK RESULT CANNOT SATISFY THE ACCEPTANCE CRITERIA IN ALL MATERIAL RESPECTS,
TRECOM SHALL OFFER CUSTOMER SUCH WORK RESULT AS IT EXISTS, AND THE PARTIES
SHALL NEGOTIATE TO ADJUST THE CHARGES FOR ITS DEVELOPMENT SERVICES TO REFLECT
ANY REDUCTION IN FUNCTION. IF SUCH OFFER IS UNACCEPTABLE, TRECOM AND CUSTOMER
SHALL NEGOTIATE IN GOOD FAITH WITH RESPECT TO POSSIBLE CHANGES TO SUCH WORK
RESULT. IF AGREEMENT CANNOT BE REACHED ON ANY SUCH CHANGE, TRECOM SHALL REFUND
ANY AMOUNTS PAID FOR THE DEVELOPMENT SERVICES, AND CUSTOMER SHALL
SIMULTANEOUSLY RETURN OR DESTROY ALL PROJECT MATERIALS AND THEREAFTER CEASE
ALL FURTHER USE THEREOF. THIS WARRANTY SHALL REMAIN IN EFFECT ONLY THROUGH THE
SYSTEM WARRANTY PERIOD, AFTER WHICH THIS WARRANTY WILL TERMINATE AND BE OF NO
FURTHER FORCE OR EFFECT. THIS WARRANTY IS EXPRESSLY CONDITIONED UPON (1)
HARDWARE AND PROGRAMMING SUPPLIED BY THIRD PARTIES INCLUDING CUSTOMER)
CONFORMING TO THEIR TECHNICAL, FUNCTIONAL, AND PERFORMANCE SPECIFICATIONS AND
CRITERIA, (2) THE ABSENCE OF ANY ALTERATION OR ABUSE OF ANY WORK RESULT BY
CUSTOMER, ITS PERSONNEL OR OTHER AUTHORIZED USER AND (3) ACCIDENTS, DISASTER,
NEGLECT OR MISUSE, WHICH DIRECTLY OR INDIRECTLY CAUSE SUCH WORK RESULT'S
FAILURE TO SATISFY THE ACCEPTANCE CRITERIA.
c. DISCLAIMER. EXCEPT AS EXPRESSLY PROVIDED FOR IN THIS SECTION
OR ss. 8 OR ss. 9 ABOVE, TRECOM DOES NOT, AFTER THE SYSTEM WARRANTY PERIOD,
MAKE ANY WARRANTY OR REPRESENTATION, EXPRESS OR IMPLIED, WITH RESPECT
TO ANY WORK RESULT, ITS COMPONENTS, THE PROJECT SCHEDULE, THE SERVICES
18
TO BE RENDERED BY TRECOM'S PERSONNEL, OR THE RESULTS TO BE OBTAINED FROM THEIR
SERVICES, SOFTWARE, ANY SERVICES, OR ANY COMPONENTS INCLUDING ANY IMPLIED OR
EXPRESSED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OF
ANY WORK RESULT, THE SOFTWARE, ANY SERVICES, OR ANY COMPONENTS. IN NO EVENT
SHALL TRECOM BE LIABLE FOR LOST PROFITS, LOST SAVINGS, LOSS OF DATA, LOSS OF
RECORDS, OR OTHER CONSEQUENTIAL, INCIDENTAL, SPECIAL OR INDIRECT DAMAGES, OR
FOR ACTS OF NEGLIGENCE THAT ARE NOT INTENTIONAL, OR RECKLESS IN NATURE
REGARDLESS OF WHETHER IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
d. No Effect on Other Agreements. Nothing in this Master Agreement
shall abridge or negate any other third-party warranties contained in any
other agreement concerning the procurement of components or services by
Customer in connection with the creation, installation or implementation of
any Work Result. TRECOM shall provide its reasonable cooperation to enable
Customer to realize the benefits of any such other warranties.
Section 12.
LIMITATION OF LIABILITY AND REMEDIES
a. Maximum Liability. TRECOM's entire liability and Customer's
exclusive remedy, regardless of the form of action as it relates to the
warranty under the Agreement, is as set forth in ss. 11. TRECOM's entire
liability and Customer's exclusive remedy, regardless of the form of action,
for other claims concerning its performance or nonperformance in connection
with any Work Documents, including any negligence, shall be limited to the
total amount paid to TRECOM under such Work Documents for the Work Result or
Development Services actually found or claimed to be defective, or incomplete,
under the estimate or in the authorization for the particular Work Result or
Development Services if no estimate is provided. This limitation does not
apply to TRECOM's obligations under ss. 9.5 of this Master Agreement or for
claims for bodily injury or damage to real property or tangible personal
property for which TRECOM is legally liable provided, however, that all claims
relating to any Work Result and Development Services to be preformed by TRECOM
under this Master Agreement, or failure thereof shall be considered warranty
claims under Section 11 of this Master Agreement. IN NO EVENT WILL TRECOM BE
LIABLE FOR ANY LOST PROFITS, LOST SAVINGS, LOST DATA, LOST RECORDS, OR
INCIDENTAL DAMAGES, OR OTHER ECONOMIC OR CONSEQUENTIAL DAMAGES, EVEN IF TRECOM
HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN ADDITION, TRECOM WILL
NOT BE LIABLE FOR ANY DAMAGES CLAIMED BY CUSTOMER BASED ON ANY THIRD-PARTY
CLAIM, EXCEPT FOR CLAIMS BY TRECOM'S SUBCONTRACTORS AGAINST CUSTOMER RELATING
TO WORK PERFORMED AT TRECOM'S REQUEST UNDER THIS MASTER AGREEMENT.
19
Section 13.
TERM AND TERMINATION
a. Term. The term of this Master Agreement shall commence on the
Effective Date and, unless sooner terminated hereunder, shall continue in
effect for a period of 10 years from the date hereof.
b. Termination on Default. Any Project may be terminated by either
party in the event of a default by the other party on its obligations
thereunder, including (in the case of a default by Customer) any failure of
Customer to assume and perform its responsibilities, to obtain and supply the
components, the items specified in such Work Documents, other materials and
facilities for which it is responsible, or to make payment at such time as the
conditions thereto have been satisfied in accordance with such Work Documents,
and (in the case of a default by TRECOM) any impermissible or unexcused
failure to complete a milestone within forty-five (45) days of the date
established for such milestone in the Project Schedule for such Project,
unless such milestone date has been extended by mutual agreement between the
parties.
13.2.1 Remedies; Grace Period. In the event either party
commits such a default, the other party shall so
notify the defaulting party in writing (and, in
such notice, indicate the nature of the default
and the assertion of the aggrieved party's right
to terminate). The aggrieved party may (at its
discretion) suspend further performance in whole
or In part following the issuance of such notice,
except insofar as the failure to continue
performance would cause irreparable injury to the
defaulting party's existing business. The
defaulting party shall have forty-five (45) days
(except ten (10) days in the case of payment of
monies due) following receipt of such notice to
cure such default. If such default remains uncured
after such grace-cure period, the aggrieved party
may terminate Work Documents relating to any
Project by sending further notice of such effect,
effective immediately.
13.2.2 Customer's Default. In the event of termination
upon default of Customer, TRECOM shall recover
payment for all work or services rendered through
the date of termination, as well as equipment or
components ordered on behalf of, delivered to, or
for the account of, Customer, including items
delivered through the date of termination, whether
or not such payments are otherwise then due and
payable. Upon such termination, TRECOM shall
return to Customer or destroy all Project
Materials.
13.2.3 TRECOM's Default. In the event of termination upon
default of TRECOM, Customer may retain all items
and materials delivered through the date of
termination, including a complete copy of all
Project Materials that TRECOM's project director
has on hand as of such date (whether in
20
electronic or paper form), upon payment by Customer
for all accepted work or services rendered through
the date of termination. In addition, Customer may
recover its actual damages to the limits set forth
in this ss. 13.2.3 and ss. 12 of this Master
Agreement. TRECOM's liability to Customer for
actual damages from any cause whatsoever will be an
amount equal to the charges of the portion of the
Work Documents for such Project that is the subject
of the claim. This limitation does not apply to
patent or copyright infringement claims, or bodily
injury or damage to real property on tangible
personal property for which either party is legally
liable.
c. Survival. In the event of termination or expiration of this Master
Agreement, xx.xx. 6.2, 9.1 through 9.7, 10.1 through 10.3, 12.1 and 15.1
through 15.1 1, shall survive and continue in effect.
Section 14.
DEFINITIONS
For purposes of this Master Agreement,
"Acceptance Certificate" means a certificate, in a form satisfactory
to TRECOM, executed and delivered by Customer evidencing Customer's acceptance
of any completed System.
"Acceptance Criteria" means the acceptance criteria to be developed
by Customer and TRECOM for the Acceptance Test.
"Acceptance Test" has the meaning ascribed to it in ss. 3.4 of this
Master Agreement.
"Acceptance Test Date" has the meaning ascribed to it in ss. 3.4 of
this Master Agreement.
"Coupons On-Line" means the Targeted Marketing System described in
Appendix A and Appendix B to the Existing Agreement.
"Custom-Developed Software" means, collectively, Work Results that
comprise the computer instructions, documentation and programming code that
TRECOM shall develop pursuant to Work Documents following the date of this
Master Agreement specifically for use by Customer. Without limiting the
generality of the foregoing, Custom-Developed Software includes any original
work of authorship constituting new computer software code or a modified part
of a programming statement that, in either case, is developed pursuant to the
Work Documents after the date of this Master Agreement.
"Customer" means NETVALUE, INC., a Delaware corporation with its
principal office located at Xxx Xxxxxxxx Xxxxxxx, Xxxxxxxx, Xxxxxxxxxxx 00000.
21
"Development Services" has the meaning ascribed to it in ss. 1.1 of
this Master Agreement.
"Documentation" means user manuals and other technical documentation,
in any form or media, that relate to the Software and are made available by
TRECOM for Customer's use with the Software.
"Effective Date" means the date on which Customer and TRECOM shall
have executed and delivered this Agreement.
"Excusable Delay" means any delay described as excusable in ss. 5.2
of this Master Agreement.
"Existing Agreement" has the meaning ascribed to it in the Recitals to
this Master
Agreement.
"First Amendment" has the meaning ascribed to it in the Recitals to
this Master Agreement.
"In-Home" means the In-Home Initiative.
"Letter of Credit" means an irrevocable letter of credit in favor of
TRECOM delivered to TRECOM by Customer at any time or from time to time.
"Payment Schedule" means the schedule of payment terms attached to
the Work Documents from time to time, with respect to any Project.
"Project" means any specific project that Customer shall engage
TRECOM to perform or deliver, as described in the Work Documents from time to
time.
"Project Fee" means the sum payable to TRECOM by Customer in respect
of any Project, as such sum is described in Work Documents, from time to time.
"Project Materials" means, collectively, Work Documents, Project
Schedule, Acceptance Criteria and such other materials concerning the design,
installation, testing, and performance of the System as become available
during the course of the creation, installation and implementation of the
System.
"Project Schedule" means the project schedule comprised within the
Work Documents for any Project.
"SIDA" has the meaning ascribed to it in the Recitals to this Master
Agreement.
"Software" means all or any part of TRECOMware, including both the
object code and source code, as such software program products may be modified
pursuant to the Work Documents,
22
other than any Custom-Developed Software.
"Start Date" means the date of commencement of Work in respect of any
Project.
"Statement of Work" means the statement of work, as in effect from
time to time, to be attached to this Master Agreement to describe any
particular Project to be effected by TRECOM on behalf of Customer.
"System" means, with respect to any Project, the system more
particularly described in the Statement of Work and other Work Documents for
such Project.
"System Warranty Period" means the period of 30 days following the
date of the Acceptance Certificate for such System.
"TRECOM" means DMR TRECOM, INC., a Delaware corporation with its
principal office located at 000 Xxxxxxxx Xxxxxx, Xxxxxx, Xxx Xxxxxx
00000-0000.
"TRECOM Proprietary Information" means, collectively, any and all
ideas, inventions, concepts, models, know-how, methodologies, techniques and
trade secrets contained therein or otherwise related thereto, and all other
data, information or intelligence, all of which is the property of and is
confidential to TRECOM. "TRECOM Proprietary Information" includes any Software
or Documentation or any portion of the Software or the Documentation, whether
or not expressly stated.
"TRECOMware" means the Visual Basic Class Library, owned or possessed
by TRECOM immediately prior to commencement of the Development Services and
all software and programming developed by TRECOM from and after commencement
of the Development Services but not created as part of the Development
Services.
"Use" has the meaning ascribed to it in ss. 9.2.
"Work" means the Development Services to be provided from time to
time under specific Projects.
"Work Documents" means, collectively, the Statement of Work and
related documents attached to this Master Agreement from time to time with
respect to particular Projects. By way of example, under the SIDA, the work
documents were: the Functional Scope - nETVALUE Project dated November 22,
1996, attached hereto as Appendix A, and the Statement of Work dated November
22, 1996, attached hereto as Appendix B, and the Value Valet Business
Requirements dated November 22, 1996, attached hereto as Appendix C, each as
further elaborated and developed by TRECOM and Customer from time to time.
"Work Result" means, collectively, the deliverables, software, any
System or other end
23
product of Work.
"Value Valet" means the Value Valet Initiative described in Appendix C
to the Existing Agreement.
Section 15.
MISCELLANEOUS
a. No Agency. TRECOM, in rendering the Development Services, from
time to time, is acting solely as an independent contractor. Customer does not
undertake by this Master Agreement or otherwise to perform any obligation of
TRECOM. TRECOM and Customer expressly do not intend hereby to form a
partnership.
b. Multiple Counterparts. This Master Agreement and any Work
Documents may be executed in several counterparts, all of which taken together
shall constitute one single Agreement between the parties.
c. Section Headings; Exhibits. The section and subsection headings
used herein or in any Work Documents are for reference and convenience only
and shall not enter into the interpretation hereof. The appendices and
attachments referred to herein and attached hereto are incorporated herein to
the same extent as if set forth in full herein.
d. Required Approvals. Where agreement, approval, acceptance, or
consent by either party is required by any provision of this Master Agreement,
such action shall not be unreasonably conditioned, delayed or withheld.
e. 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 Master Agreement or any Work
Documents 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 or therein contained.
f. Governing Law. This Master Agreement and all Work Documents shall
be governed by and construed in accordance with the laws of the State of New
Jersey, excluding such State's Uniform Commercial Code, except for the
provisions of Article 9 thereof. The Development Services shall not be deemed
a sale of goods for purposes of the Uniform Commercial Code.
g. Entire Agreement. This Master Agreement and the appendices and
attachments hereto constitute the entire agreement between the parties. 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,
24
or discharge is sought to be enforced. In the event of any conflict among the
Work Documents and this Master Agreement, the Work Documents's terms and
provisions shall control, and in the event of any conflict among the Work
Documents shall control. Nothing in this Agreement shall be deemed to amend
the Existing Agreement, which remains in full force and effect.
h. Notices. Under this Master Agreement if one party is required to
give notice to the other, such notice shall be deemed given if mailed by U.S.
mail, first class, postage prepaid, and addressed as follows (or as
subsequently noticed to the other party):
DMR TRECOM, Inc.
000 Xxxxxxxx Xxxxxx
Xxxxxx, Xxx Xxxxxx 00000-0000
Attention: Chief Operating Officer
nETVALUE, Inc.
Xxx Xxxxxxxx Xxxxxxx
Xxxxxxxx, Xxxxxxxxxxx 00000
Attention: Xxxx Xxxxx, Project Director
Copies of all notices shall be sent to TRECOM's General Counsel at TRECOM's
above address.
i. Personnel; Subcontracting. TRECOM shall have sole responsibility
for the assignment of personnel to the Development Services. Such personnel
shall not be restricted or prevented from performing services for others that
are similar the Development Services. Neither TRECOM nor its employees or
others whose services TRECOM may require in performance of Work are entitled
to Customer employee status and benefits provided by Customer to its
employees, including pension benefits, health benefits, group insurance
coverage, separation pay and sick leave benefits.
j. No Assignment. Except as permitted by ss. 3.3 or ss. 15.9 hereof,
neither party may, without the prior written consent of the other party,
assign or transfer this Master Agreement or any obligation incurred hereunder,
except by merger, reorganization, consolidation, or sale of all or
substantially all of such party's assets. Any attempt to do so in
contravention of this Section shall be void and of no force and effect.
k. Certain Terms. All personal pronouns used in this Master Agreement
and the Work Documents, whether used in the masculine, feminine or neuter
gender, shall include all other genders; the singular shall include the
plural, and vice versa. "Including," "includes" and "include" means,
respectively, "including, without limitation," "includes, without limitation"
and "include, without limitation." In addition, the words "hereof," "herein"
and "hereunder" and words of similar import when used in this Master Agreement
or any Work Documents shall refer to this Master Agreement as a whole and not
to any particular provision of this Master Agreement or such Work Document.
25
IN WITNESS WHEREOF, TRECOM and Customer have caused this Master
Agreement be effective as of the date first herein above written.
DMR TRECOM, INC.
By: ___________________________
Title: ___________________________
Date: ___________________________
nETVALUE, INC.
By: ___________________________
Title: ___________________________
Date: ___________________________
26
