Exhibit 10.7
SOFTWARE CONVERSION AGREEMENT
THIS SOFTWARE CONVERSION AGREEMENT is effective as of this day of
, 19 and is entered into between Transformation Processing Inc.
("TPI"), a corporation having its principal place of business at the address set
forth below, and _______________ (the "Customer"), having a place of business
at the address set forth below.
RECITALS
A. The Customer has certain software libraries, data and applications (the
"Customer Applications") which execute on the computer system described in
Schedule A (the "Source Computer System").
B. The Customer wants to hire TPI to provide software conversion services that
allow the Customer Applications") to execute on the target computer system
described in Schedule B (the "Target Computer System").
C. TPI uses an automated process to perform the conversion service. The
software that is converted through the automated process is called the
"Processed Software."
D. Software that cannot be converted through the automated process will have
to be converted manually. The software that is converted by manual process
is called (the "Rewritten Software").
E. Processed Software and Rewritten Software and collectively called the
"Converted Software".
F. The Customer's Converted Software will only execute on the Target Computer
System in conjunction with certain software function support licensed by
TPI (the "Deployment Products").
G. Customer's Applications are described in Schedule C.
AND WHEREAS the Customer wants to hire TPI to provide the conversion
services described in this contract and have the remarketing rights for the
Deployment Products, subject to the execution of a Deployment Product License
Agreement or Deployment Product Royalty Agreement between TPI and the Customer.
NOW THEREFORE THE PARTIES AGREE AS FOLLOWS:
1. AUTOMATED CONVERSION: TPI agrees to convert the Customer Applications
described in Schedule C so that it will execute on the Target Computer
System and to deliver the Processed Software and/or Converted Software to
the Customer. In consideration of
these conversion services, the Customer agrees to pay TPI the fees on the
dates described in Schedule F.
2. MANUAL CONVERSION: TPI intends to use an automated process to convert the
Customer Applications referred to in Schedule C. Schedule D refers to
certain software code associated with the Customer Applications which are
not capable of being converted by TPI's automated process. When the
Customer executes Schedule D and delivers it to TPI, Schedule D will
become part of this Agreement. TPI agrees to manually convert the code
described in that Schedule and deliver the Rewritten Software to the
Customer. In consideration of these services, the Customer agrees to pay
TPI the fees on the dates described in Schedule D. If the Customer elects
to produce the Rewritten Software itself, the Customer alone shall be
responsible for the integration of the Processed Software with the
Rewritten Software (together the "Converted Software") and for the
performance of the whole system together, and TPI shall provide no support
to the Customer in this regard unless otherwise agreed to by TPI in
writing,
3. DEPLOYMENT PRODUCT LICENSE: The Processed Software and the Rewritten
Software (together the "Converted Software") will only execute when used in
conjunction with certain software function support supplied by TPI (the
"Deployment Products").
The Deployment Products include software functionality for a computer
called a Server ("Server Software"). The Deployment Products also include
software functionality which accommodates end user access to that
functionality provided by the Server Software ("Client Software"). The
Deployment Products are available under license from TPI for a specified
number of concurrent users for both the Server Software and Client Software
as specified in Schedule B. The license grants the Customer to install one
(1) copy of the Server Software on the computer called a Server and to
install the Client Software on the Customer's computers and workstations
licensed under the Deployment Product License Agreement or Deployment
Product Royalty Agreement. The Customer agrees that it will only use the
Converted Software after execution of a TPI standard Deployment Product
License Agreement or Deployment Product Royalty Agreement for the
Deployment Products. The Customer may resell or install the Converted
Software on more than one (1) computer system provided that a separate
Deployment Product License Agreement or Deployment Product Royalty
Agreement for the Deployment Products is executed between the parties.
4. THIRD PARTY LICENSES: The Customer acknowledges that it may be necessary
to add certain third party software processes and programs during the
conversion process or to use such processes and programs during the
execution of the Converted Software. In the event that the Customer is not
the sole owner of the Customer Applications, the Customer shall be
responsible for obtaining a license to use such processes and programs on
the Target Computer System.
--
5. SUPPORT: Subject to the terms of this agreement, TPI will provide the
Customer with the following support services for the Processed Software or
Converted Software and/or Deployment Products:
(a) TPI will provide advice and assistance in the use of the Processed
Software and/or Converted Software and Deployment Products; and
(b) TPI will use all reasonable efforts to correct any defect in the
execution of the Processed Software and/or Converted Software and
Deployment Products.
The support services will be provided by telephone (with long distance
charges payable by the Customer) during regular business hours of the TPI
office providing support services.
The Customer must be willing to assist TPI with additional information or
provide access to the Customer Applications which TPI may reasonably
request. During the first ninety (90) days following the delivery to the
Customer, there will be no charge for the support services. Thereafter,
there will be no charge for the support services if the support fees
identified in the Deployment Products License Agreement or Deployment
Product Royalty Agreement are current. Otherwise, TPI shall be entitled to
charge the Customer for support time at TPI's applicable hourly rate.
Charges will apply if TPI is asked to resolve problems caused by the
Customer not operating the Processed Software and/or Converted Software and
Deployment Products as described in the user manual, "online" documentation
and/or TPI provided materials, or when TPI determines that the cause of the
problem is by nature the responsibility of the Customer.
Any supplemental software code and/or updates provided to the Customer as
part of the Support Services shall be considered part of the Converted
Software or the Deployment Products and are subject to the terms and
conditions of this Agreement. With respect to technical information
Customers provide to TPI as part of the Support Services, TPI may use such
information for its business purposes, including product support and
development.
The Customer is expected to be familiar with the operating systems that the
Converted Software and Deployment Products execute under, the third-party
database management system used for data storage, and any other third-party
software utilized. TPI may charge the Customer for any support services
(whether during the first ninety (90) days or otherwise) which arise out of
the Customer's misunderstanding of the Target Computer System as described
in Schedule B.
6. INABILITY TO DO CONVERSIONS: If TPI determines that it is unable to provide
the Processed Software or Converted Software to the Customer, TPI may
refund all monies received from the Customer under this agreement and
return the software and data files submitted
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for conversion whereupon this agreement shall terminate, the Customer shall
cease all further use of the Converted Software and each party shall have
no liability or obligation of any nature to the other.
7. CODE LINES TO BE CONVERTED: The fees charged for the conversion services as
specified in the agreement have been established relying on the quantity
and character of the executable code, without comments, to be converted on
an automated basis (as specified in Schedule C) and a rewritten basis (as
specified in Schedule D). Any difference between the actual quantity and
character of the code specified in this contract will entitle TPI to revise
its fees (as per its published fee schedule) for the Processed Software,
and Rewritten Software.
8. CURRENCY. TAXES AND PAYMENT TERMS. All references in this agreement to
dollars are expressed in Canadian currency except where otherwise noted and
all amounts payable to TPI shall be paid in Canadian dollars. The
conversion fees do not include any taxes or duties which, if applicable,
will be billed in addition to the conversion fees and shall be payable by
the Customer upon invoice. All amounts owing under this agreement which
are not paid when due shall bear interest at the lesser of the highest rate
permitted at law and the Prime Rate plus 2% per annum until paid in full.
The Prime Rate shall be the rate of interest per annum charged from time to
time during the currency of this agreement by the Bank of Montreal (the
"Bank") for demand loans in Canadian funds made at the main branch of the
Bank in Xxxxxxx, Xxxxxxx XXXXXX (and if at any time there is more than one
such prime commercial lending rate of the Bank, the Prime Rate shall be the
highest prime commercial lending rate of the Bank.
9. OBLIGATIONS OF THE CUSTOMER: The Customer agrees to deliver the software to
be converted under this Agreement to TPI as object code, source code and
data. The Customer represents and warrants to TPI that the Customer has
the right to convert the Customer's software as contemplated in this
agreement. If the Customer is not the owner of the software being
converted, the Customer may require a license from the owner of the
software to convert and execute the software under the Target Computer
System and the Customer shall be responsible for obtaining such licenses.
10. CONFIDENTIAL INFORMATION: Both parties acknowledge that the Customer
Applications, software ideas, concepts, know-how and techniques employed by
each other in performing the conversion services (the "Confidential
Information") are trade secrets which required substantial efforts to
create and develop. Both parties acknowledge that each other may provide
confidential software and information which is clearly marked as
confidential by the respective party (the "Confidential Information").
Each party agrees to use the Confidential Information of the other in
confidence with the same degree of care it uses with its own Confidential
Information (using at least a reasonable standard of care) and not to
disclose such Confidential Information in any form whatsoever except to
those of its employees and subcontractors who have a need to use the same
in the normal
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course of their work and who have agreed to abide by the provisions of this
Agreement. Neither party shall acquire any ownership rights or other
rights relating to the other party's Confidential Information or other
property as a result of the execution or performance of this contract and
regardless of whether the Customer's software and the software used by TPI
both appear in the Converted Software.
11. RETENTION OF COPIES: TPI may, but is not required to, retain copies of the
software delivered by the Customer to TPI and the Converted Software as
evidence of the conversion services performed by TPI under this agreement.
If the Customer wants the return of this software, TPI will do so provided
that the Customer first executes a release prepared by TPI.
12. LIMITED WARRANTY: TPI shall give written notice (the "Delivery Notice") to
the Customer when TPI considers delivery of the Converted Software to the
Customer to have been completed. The Customer will be entitled to a refund
of all amounts paid to TPI trader this agreement if
(a) the Converted Software does not produce the same substantive output as
the Customer's original Customer Applications and if the Customer
gives written notice of such defect to TPI within thirty (30) days
following delivery of the Delivery Notice describing the defect with
sufficient precision to enable TPI to recreate or simulate such defect
(and failing the delivery of such notice), the Customer shall be
deemed to have accepted the Converted Software;
(b) TPI fails to remedy the defect within ninety (90) days following the
Delivery Notice; and
(c) the Customer discontinues use of the Converted Software and returns
copies of the Converted Software and System Software within ninety
(90) days following delivery of the Delivery Notice.
The term "substantive output" means the results produced by the software
when it is executed and not the manner or format in which those results are
presented (unless the manner or format in which those results are presented
materially reduces the usefulness of the Converted Software to the
Customer). The Customer acknowledges that any defect in the Customer
Applications will not be remedied by the conversion services provided under
this agreement and that TPI does not contract to make good any such defect
unless specifically agreed to in writing by TPI.
TPI does not offer any warranty with respect to the Converted Software or
its installation other than the right to obtain a refund in the
circumstances specifically described above.
TPI DISCLAIMS ALL OTHER WARRANTIES, EITHER EXPRESS OR IMPLIED, INCLUDING
BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A
PARTICULAR PURPOSE AND THE WARRANTY AGAINST LATENT DEFECTS, WITH RESPECT TO
THE
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CONVERTED SOFTWARE WITHOUT LIMITING THE GENERALITY OF THE FOREGOING. TPI
MAKES NO REPRESENTATION OF WARRANTY:
WITH RESPECT TO THE CHARACTERISTICS OF EXECUTION OF THE CONVERTED SOFTWARE
(a) (EXCLUDING RESPONSE TIME, CHARACTERISTICS OF USE OF MACHINE TIME AND
OTHER OPERATING FUNCTIONS WITH ANY PARTICULAR EQUIPMENT);
(b) THAT THE FUNCTIONS CONTAINED IN THE CONVERTED SOFTWARE WILL SATISFY
ALL THE NEEDS OF THE CUSTOMER, OR
(c) THE OPERATION OF THE CONVERTED SOFTWARE WILL ALWAYS BE ERROR FREE OR
UNINTERRUPTED OR THAT ALL DEFECTS AND PROGRAMMING ERRORS IN THE
CONVERTED SOFTWARE WILL BE DETECTED OR CORRECTED.
13. RESPONSIBILITY OF THE CUSTOMER: The Customer is the only party responsible
for the use of the Converted Software for the Customer's activities. The
Customer agrees to use the necessary verification controls and operating
techniques to satisfy its needs with respect to error detection, security,
back-up and restart in case of failure or destruction of the Customer's
original software or the Converted Software or any of the customer's files
and data, whether the same occurs during or after conversion. The Customer
agrees to keep one (1) copy of all material delivered to TPI and to bear
the risk of loss, damage or theft of any material delivered to TPI. TPI
strongly recommends that the Customer test the Converted Software before
operation with the Customer's software or data.
14. EXCLUSION OF LIABILITY: IN NO EVENT SHALL TPI OR ITS SUPPLIERS BE LIABLE
FOR ANY LOSS OR DAMAGE WHATSOEVER, INCLUDING, WITHOUT LIMITATION, DAMAGES
FOR LOSS OF REVENUE OR PROFITS, BUSINESS INTERRUPTION, LOSS OF SOFTWARE OR
INFORMATION, FAILURE TO REALIZE EXPECTED SAVINGS OR ANY OTHER PECUNIARY
LOSS OF ANY NATURE WHATSOEVER INCLUDING INDIRECT, CONSEQUENTIAL OR PUNITIVE
DAMAGE, EVEN IF TPI HAS BEEN ADVISED OF THE POSSIBILITY OF SAME, RESULTING
FROM USE OF, OR INABILITY TO USE, THE CONVERTED SOFTWARE, FROM ANY SERVICE
PROVIDED UNDER THIS AGREEMENT, FROM ANY DELAY IN THE SUPPLY OF SUCH
SERVICE OR FROM ANY OMISSION TO DO SO BY TPI, ITS SUBSIDIARIES,
AFFILIATES, EMPLOYEES, AGENTS, OFFICERS OR DIRECTORS, OR ANY OTHER PARTY
FOR WHICH TPI MAY BE RESPONSIBLE AT LAW. SOME JURISDICTIONS DO NOT ALLOW
THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSION MAY NOT APPLY.
IN NO EVENT SHALL THE TOTAL LIABILITY OF TPI TO THE CUSTOMER FOR ALL
DAMAGES. LOSSES AND CAUSES OF ACTION UNDER ANY LEGAL THEORY (INCLUDING,
WITHOUT LIMITATION, CONTRACT, FUNDAMENTAL BREACH OR BREACH OF A FUNDAMENTAL
TERM, TORT OR NEGLIGENCE) EXCEED THE AMOUNTS PAID BY THE CUSTOMER TO TPI
UNDER THIS AGREEMENT DURING THE YEAR PRECEDING THE MAKING OF THE CLAIM.
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15. INDEMNIFICATION BY THE CUSTOMER: The Customer agrees to defend TPI against
any action, suit or claim against TPI by any third party resulting from use
of the Converted Software by the Customer, from use of any Customer
provided data or computer program by TPI, from the conversion of any
software or data files supplied by the Customer to TPI, from any service
provided under this Agreement, from any delay in the supply of such
services or from any omission to do so. The Customer agrees to indemnify
and hold TPI harmless from and against all damages, liabilities, losses and
expenses, including reasonable attorney's fees and all court costs,
incurred by TPI as a result of any such action, suit or claim.
16. TERMINATION: The parties shall be entitled to terminate this agreement if
either party fails to abide by any of the terms and conditions of this
agreement and such failure continues for ten (10) days after written notice
to remedy such failure. This agreement will automatically terminate
without notice if either party becomes bankrupt or insolvent, or makes an
assignment for the benefit of its creditors, or if a liquidation order is
made against either party or if either party takes advantage of any statue
relating to insolvency. bankruptcy or arrangements with creditors. Upon
termination of this agreement, the Customer shall cease all further use of
the Converted Software and return to TPI all originals and all
reproductions of the Converted Software in its possession or control and
any notes relating thereto. Instead of such return TPI may, at its option,
require the Customer to destroy such originals, reproductions and notes,
and provide TPI with satisfactory evidence of such destruction. Those
provisions of this agreement which by their nature arc intended to survive
the termination of this agreement (including, without limitations, sections
10, 12, 14 and 15) shall survive the termination of this agreement.
17. NOTICE: Any notice required or permitted under this agreement shall be
given to the address for notice set out below or to such other address of
which notice is given. Such notice may be given by personal delivery
(including courier delivery), prepaid mail or facsimile. Such notice shall
be considered received on the date of actual receipt at the address for
notice.
18. ASSIGNMENT: This agreement can only be assigned with the prior written
consent of TPI and upon the conditions stipulated by TPI.
19. OTHER TERMS: This agreement sets forth the entire understanding between the
parties, relating to the subject matter hereof and there are no agreements,
promises, representations or understandings between the parties other than
as set forth herein. No amendment or modification of this agreement shall
be effective unless in writing and signed by the parties to his agreement.
No term, covenant or condition of this agreement shall be deemed to have
been waived by either party to this agreement unless such waiver is in
writing, and then such waiver shall apply only to the specific event or
circumstances described in such waiver. This agreement shall be governed
by laws in force at the Customer's address for notice set below. The
section headings in this agreement are for
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convenience of reference and do not affect the meaning of sections. This
agreement shall enure to the benefit of, and be binding upon, the parties
hereto and their respective legal personal representatives, successors and
permitted assigns.
20. LANGUAGE: The parties hereto have requested that this agreement be drafted
in English. Les parties aux presents ont exige que le present contrat soit
redige en langue anglaise.
IN WITNESS WHEREOF THE PARTIES HAVE SIGNED THIS AGREEMENT AS OF THE DATE
STATED ON PAGE ONE HEREOF BY THEIR OFFICERS DULY AUTHORIZED AS THEY SO DECLARE.
Transformation Processing Inc.
-----------------------------------
Name of Customer (Please Print)
By: By:
-------------------------------- --------------------------------
Signature Signature
----------------------------------- -----------------------------------
Name of Signing Officer (Please Print) Name of Signing Officer (Please Print)
----------------------------------- -----------------------------------
Title Title
----------------------------------- Transformation Processing Inc.'s
Customer's Address for Notice: Address for Notice:
0000 Xxxxxxxx Xxxx, Xxxxx 000
----------------------------------- Xxxxxxxxxxx, Xxxxxxx
XXXXXX X0X 0X0
-----------------------------------
Telephone:_________________________ Telephone: (000) 000-0000
Facsimile:_________________________ Facsimile: (000) 000-0000
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SCHEDULE A
SOURCE COMPUTER SYSTEMS
CPU
System Serial # Model Memory Disk
------ -------- ----- ------ ----
Example
TERMINALS
Manufacturer
Name M/C Type Model Local /Remote/Interface Type
---- -------- ----- ----------------------------
Example
PRINTERS
Manufacturer
Name M/C Type Model Local /Remote/Interface Type
---- -------- ----- ----------------------------
Example
TAPE DRIVES
Manufacturer
Name M/C Type Model Local /Remote/Interface Type
---- -------- ----- ----------------------------
Example
OPERATING SYSTEM
Operating System Version
---------------- -------
Example
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COMPILER VERSION
Compiler System Version
--------------- -------
Example
OTHER VERSION
Other System Version
------------ -------
Example
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SCHEDULE C
CUSTOMER APPLICATION
The Customer Applications may be Submitted in a soft-copy media format by
initialing here:
Language #Programs/Objects Total Lines
OCL
CL
RPGII
RPGII-1/2
RPGIII
COBOL
BASIC
DFU
FMT
Other
--------------------- ------------ ----------------- ------------- -------------
File/Member Name No. Of Records Total Megabytes Source Type Description
--------------------- ------------ ----------------- ------------- -------------
--------------------- ------------ ----------------- ------------- -------------
--------------------- ------------ ----------------- ------------- -------------
--------------------- ------------ ----------------- ------------- -------------
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SCHEDULE D
REWRITTEN SOFTWARE
If this Schedule D is executed by the Customer and delivered to TPI, Schedule D
will become part of this Agreement. TPI agrees to perform the following
Rewritten Software conversions associated ,with the Processed Software and the
Customer agrees, to pay the fees described below:
---------------------------------------- --------------------------------------
Description of Code to be
Manually Converted Rewritten Software Fee
---------------------------------------- --------------------------------------
TO BE DEFINED INCLUDED IN $75,000.00 CONVERSION FEE
---------------------------------------- --------------------------------------
---------------------------------------- --------------------------------------
---------------------------------------- --------------------------------------
---------------------------------------- --------------------------------------
Payment Terms:
The Rewritten Software fee does not include any taxes or duties which, if
applicable, will be billed in addition to these fees and shall be payable by the
Customer upon invoice.
The Customer agrees that TPI will perform the Rewritten Software conversions
described above and that the Customer will pay the fee as provided above.
Date:____________________________ _______________________________
Name of Customer (Please Print)
By:____________________________
(Signature)
_______________________________
Name of Signing Officer (Please Print)
_______________________________
Title
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SCHEDULE E
PRICE AND TERMS OF PAYMENT
The fees and terms of payment under this agreement are as follows:
1. Conversion Services
Conversion Fees: The fees to be paid to TPI for the conversion and
development services provided under this Agreement (the "Conversion Fees") are
as follows:
For conversion of the Source Computer Applications Software: $75,000.00
For the development of the Rewritten Software: $ 0.00
The fees referred to for the Rewritten Software apply only if the
Customer has elected to have TPI develop the Manual Software (see
Schedule D).
B. Payment Terms: The Conversion Fees shall be paid to TPI's follows:
1. Phase 1: For services during a ninety (90) day proof of concept which
includes conversion of approximately 260,000 lines of source computer
applications. Payment terms are $8,000.00 payable to TPI on May 1,
1997; $8,000.00 payable to TPI on June 1, 1997; and $9,000.00 payable
upon Customer acceptance of Phase I.
(ii) Phase 2: For services to convert approximately 2,.550,000 lines of
source computer applications payment terms are S10,000.00 per month
payable at the end of each of the first five (5) months of Phase 2.
All fee quoted exclude applicable taxes which will be invoiced and are due
coincident with the fee schedule as documented.
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